Criminal Codes Appellate Decisions
Magar v The State of Western Australia [2011] WASCA 122
Statement of significance
Braham v The Queen (1994) 116 FLR 38 Carr v The State of Western Australia (2006) 166 A Crim R 1 Director of Public Prosecutions (Cth) v Page [2006] VSCA 224 El-Chaar v The Queen [2007] NSWCCA 16 Gulyas v The State of Western Australia (2007) 178 A Crim R 539 Hladin v The State of Western Australia (2005) 156 A Crim R 176 Jarvis v The Queen (1993) 20 WAR 201 Johnson v The Queen (2004) 78 ALJR 616 Magdi v The State of Western Australia [2010] WASCA 234 Mathews v The Queen (2001) 24 WAR 438 Murray v The Queen (2002) 211 CLR 193 Nikaghanri v The State of Western Australia [2009] WASCA 192 Postiglione v The Queen (1997) 189 CLR 295 Quetcher v The Queen [2010] NSWCCA 257 R v Baldock (2010) 269 ALR 674 R v Berry [2007] VSCA 60 R v Hunter (1984) 36 SASR 101 R v Iles [2009] VSCA 197 R v Smith (1987) 44 SASR 587 R v Whyte (2004) 7 VR 397 R v Wright [1999] 3 VR 355 Skipworth v The State of Western Australia [2008] WASCA 64 Smallbone v The State of Western Australia (2008) 187 A Crim R 57 Vlek v The Queen (Unreported, WASCA, Library No 990153, 29 March 1999)
Catchwords
Criminal law - Appeal against conviction - Nine counts of fraud and five counts of dishonestly obtaining property - Whether the trial judge misdirected the jury as to the meaning of 'intent to defraud' - Whether the trial judge misdirected the jury on the appellant's alleged claim of right - Appeal against sentence - Three years' immediate imprisonment - Appellant aged 71 at the time of sentencing and suffering ill health - Whether sentence was relevantly 'crushing'
Equivalent/Similar Legislation
| Western Australia | Queensland | Northern Territory | Tasmania |
|---|---|---|---|
| s 30 s 30 Criminal Appeals Act 2004 Appeal against conviction, decision on
| s 668E(1A) s 668E(1A) Criminal Code 1899 However, the Court may, notwithstanding that it is of the opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no ...(click link for section details) | s 411 s 411 Criminal Code 1983 Determination of appeal in ordinary cases
| s 402 s 402 Criminal Code 1924 Determination of appeals1. On an appeal the Court shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot ...(click link for section details) |
| s 409 s 409 Criminal Code 1913 Fraud1. Any person who, with intent to defraud, by deceit or any fraudulent means —
| s 408C s 408C Criminal Code 1899 Fraud1. A person who dishonestly—
| s 227 s 227 Criminal Code 1983 Criminal deception1. Any person who by any deception:
| s 225A s 225A Criminal Code 1924 ...(click link for section details) |
Citations
- The Western Australian Court of Appeal refuses leave to appeal against a conviction for fraud on the grounds that a misdirection regarding the proper meaning of ‘intent to defraud’ by the trial judges resulted in a miscarriage of justice. The appellant submitted that the trial judge failed to give clear direction that subjective intention was required, that a person’s intention is subjective because it relates to his or her state of mind, and that this could have led to confusion in the minds of the jury about the relevant ‘intention’ required. Applying Zoneff v The Queen, Buss JA, McLure P and Mazza J agreeing, holds that the judge’s direction was correct and there was no risk of confusion. See [16], [19]-[20], [31], [37], [41].