Colton v Queensland Police Service [2023] QCA 174

SUPREME COURT OF QUEENSLAND CITATION: Colton v Queensland Police Service [2023] QCA 174 PARTIES: COLTON, Robert James (applicant) v QUEENSLAND POLICE SERVICE (respondent) FILE NO/S: CA No 234 of 2021 DC No 2358 of 2019 DIVISION: Court of Appeal PROCEEDING: Application for Leave s 118 DCA (Criminal) ORIGINATING COURT: District Court at Brisbane – [2021] QDC 197 (Loury KC DCJ) DELIVERED EX TEMPORE ON: 28 August 2023 DELIVERED AT: Brisbane HEARING DATE: 28 August 2023 JUDGES: Dalton JA and Henry and Cooper JJ ORDER: Application for leave to appeal refused. CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – OTHER MATTERS – where the applicant was convicted after trial in the Magistrates Court on one count of misappropriation – where the applicant seeks leave to appeal the decision of a District Court Judge dismissing his appeal against conviction and sentence in the Magistrates Court – whether leave should be granted COUNSEL: The applicant appeared on his own behalf C L Birkett for the respondent SOLICITORS: The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent HENRY J: The applicant seeks leave to appeal the decision of a District Court Judge dismissing his appeal against conviction and sentence in the Magistrates Court. He was convicted on 19 June 2019 after trial in the Magistrates Court on a single count of misappropriation. -- 1 of 3 -- 2 He had represented to a woman that he was a successful investor and duped her into paying him $5,000 on two separate occasions on the basis that he was to invest the money on her behalf. When she subsequently and repeatedly asked after her investment, he represented all was well but provided her with no accounting of what he had done with her money. When she sought payment from him because she needed urgent medical attention, he returned $2,000, but despite other requests, provided nothing further to her. The ensuing police investigation revealed his bank account statements showed he had apparently dealt with the money as his own from the moment he obtained it, thus supporting the inference he had obtained the funds dishonestly. In his defence at trial, he claimed he invested the money through a broker who failed to account for it, but he produced no corroborating evidence of that. Some of his claims were contrary to the complainant’s evidence. The presiding Magistrate accepted the complainant’s evidence, rejecting the applicant’s evidence as evasive, deflective, contrived and unconvincing. On sentence, it was revealed the applicant has multiple convictions for dishonesty. He was sentenced to 12 months’ imprisonment with parole release after four months. It is unsurprising the applicant’s appeal to the District Court of both his conviction and sentence was dismissed. No error of law was identified and it had been well open to the presiding Magistrate to make the findings of fact from which the conclusion of guilt followed. Further, the sentence was a moderate one, having regard to the applicant’s past pattern of criminal dishonesty. Another of the applicant’s patterns is delay. His matter was repeatedly adjourned in the Magistrates Court. He requested another adjournment on the morning of trial, ostensibly because his application for aided representation had been refused and he wanted to engage legal representation. However, it emerged he had repeatedly delayed providing information in support of his aid application and the case finally proceeded about 14 months after the first appearance. The case then lingered for nearly two years in the District Court before the applicant’s request for another adjournment was refused and the matter was finally heard. The applications before this Court have been adjourned at the applicant’s request several times, and -- 2 of 3 -- 3 even today he requested a delay in the commencement time of the hearing to 11.30 am because of an unspecified medical emergency. That request was allowed. At 11.30 am he unsuccessfully sought an adjournment without evidentiary support on the basis there were prospects of him engaging a lawyer to act for him in the future. In the ensuing hearing, when given the opportunity to make his oral submissions, which were not supplemented by any written outline, he identified no meritorious basis upon which this Court ought grant leave to appeal. For example, he asserted his return of $2,000 to the complainant was of importance notwithstanding that what mattered was his intention at the time, not whatever engagement in return of funds to avoid complaint may have occurred. He also characterised the payments as just “failed investments”, which seemed rather different from his testimony below that it was a loan. Finally, and perhaps most remarkably, he asserted the complainant has not lost her money and that she still has an investment out there. I would order: Application for leave to appeal refused. DALTON JA: I agree. COOPER J: I agree. -- 3 of 3 --