R v Dobie

In this interesting case the court considered, amongst other matters, the proper application of the proviso in s 668E(1A) of the Criminal Code.

The appellant had been convicted of the offence of obtaining a financial advantage from a Commonwealth entity by deception. He was sentenced to imprisonment for two years to be released after twelve months on a recognizance release order which required him to be of good behaviour for two years.  He appealed against his conviction and applied for leave to appeal against his sentence [1] on the grounds that:

1. The verdict was unreasonable or could not be supported having regard to the evidence;
2. The learned trial judge misdirected the jury on the defence of mistake under s 9.1 of the Criminal Code (Cth);
3. The jury were given copies of a document book which was likely to have included an incorrect copy of admissions made by the defendant. [2].

At the trial there was no issue that the appellant obtained a financial advantage from a Commonwealth entity.  The only issues which arose were whether there had been a deception and whether he had acted dishonestly; and one factual question, namely whether he had not believed that the submission of certain business activity statements was legitimate.  The Crown case was that he had dishonestly obtained $17,392 from the Tax Office by lodging four such statements, containing figures he knew were false. [7]. The court noted that as a consequence of the trial judge’s summing up, “different and irrelevant questions were left to the jury and, very probably, the jury did not consider the necessary question”. [48].

Ground (a): was the verdict unreasonable?

The court undertook a detailed review of the evidence raised for the jury’s consideration. That evidence ultimately raised the question of whether the appellant intended that a BAS completed by him related to a business other than the business associated with him called “Chocolate Blonde Enterprises” (CBE), and, further, whether he believed from his dealings with the ATO that it indeed understood that to be the case.  The court explained that despite an admission by him that CBE did not carry on business in any of the periods to which the BAS related, that alone “did not necessarily establish that the figures in the BAS should be regarded as untrue or that the appellant believed that the figures in the BAS were untrue”. [26].

After due consideration the court concluded that it was open on the evidence for the jury to find that the BAS claimed amounts in excess of those which the appellant had claimed were owing to him. [27]. It was also found that it was open to the jury upon the available evidence to find that there were “very substantial disparities” between the amounts claimed in the BAS and the amounts the appellant told the ATO he believed were owing to him, and reasonably open to the jury to find that the appellant had not incurred and did not believe that he had incurred GST on purchases, or an entitlement to an income tax refund, in the amounts claimed in the BAS. [28].

Given the above and the court’s conclusion that it was reasonably open to the jury to be satisfied beyond reasonable doubt that the appellant acted dishonestly, this ground of appeal failed. [29].

Ground (b): was the jury misdirected on the defence of mistake under s 9.1 of the Criminal Code (Cth)?

After critiquing the trial judge’s summing up and directions on the topic of mistake, the court held that his directions were not dissimilar from those given in R v Navarolli [2010] 1 Qd R 27 at paras 72–73, which were wrong in law. [35]. The court took the view that the directions were sufficiently flawed so as to amount to a miscarriage of justice, since:

“The cumulative effect of th[e] legal errors was that the trial judge’s directions wrongly conveyed to the jury that the suggested mistake by the appellant was irrelevant if the respondent proved beyond reasonable doubt that the mistake was unreasonable.  Defence counsel’s omission to seek a redirection could not be explicable as a reasonable forensic decision made in the interests of the appellant.  The misdirection made the path towards conviction unduly easy for the Crown and it did not involve any forensic advantage for the appellant.” [37].

Ground (c): was there wrong evidence of an admission?

In relation to the provision of an exhibit to the jury which contained an incorrect transcription of the appellant’s formal admission, the court was of the view that it was plainly not possible to exclude the hypothesis that the jury, acting upon the misstatement of the appellant’s admission, found that he did not conduct any business under his ABN during any of the four quarters to which the BAS related and thus was aware when he signed each of the BAS that the figures supplied were false.  That error, albeit unintentional, amounted to a miscarriage of justice. [39].

The proviso

The discussion of proviso by the court in this matter was informative. The respondent, relying upon R v Navarolli [2010] 1 Qd R 27, argued that the court should apply it in circumstances where no substantial miscarriage of justice had actually occurred. The question arising was whether that was the case by reference to the facts and circumstances of the particular case?  If so, the appropriate course was to dismiss the appeal. [61].

In addressing the matter, the court observed that on occasion, a substantial miscarriage of justice may arise despite a court of criminal appeal holding the view that the evidence established that the appellant was guilty: see Quartermaine v The Queen (1980) 143 CLR 595. It was also relevantly noted that the proviso was not intended to effectively provide for a retrial before the Court of Criminal Appeal when the proceedings before the primary court had so far miscarried as hardly to be a trial at all: see Wilde v The Queen (1988) 164 CLR 365.

The court did not agree that the reasoning in R v Navarolli [2010] 1 Qd R 27 was applicable, noting that the facts of that case bore no resemblance to the facts of the appeal:  “Any reasonable doubt in that case depended upon certain evidence of the appellant”.  [46]. The current matter had involved a substantial miscarriage of justice in that that the appellant had been convicted without a consideration by the jury of an essential issue in the trial. Further, the appellant had been entitled to have a jury determine his guilt or otherwise, according to the elements of the offence, which did not occur. [65]. In the result, the court declined to apply the proviso.