Evers v Director of Public Prosecutions [2001] QCA 207

[2001] QCA 207 COURT OF APPEAL McPHERSON JA MUIR J ATKINSON J Appeal No 4347 of 2001 WINTON BARRY EVERS (Applicant) Appellant and DIRECTOR OF PUBLIC PROSECUTIONS (Respondent) Respondent BRISBANE ..DATE 30/05/2001 JUDGMENT -- 1 of 6 -- 30052001 T14/SJ3 M/T COA139/2001 2 JUDGMENT MUIR J: The appellant, Winton Barry Evers, is charged with three counts of fraud and one of attempted fraud. The offences are alleged to have been committed between 1 August 1999 and 21 January 2000. He made an application for bail which was refused by a Judge of the Supreme Court on 10 April 2001. He appeals against that decision. The appellant is a qualified accountant born on 5 May 1954. He practised as a chartered accountant between 1984 and 1993. Between 1993 and 1995 he worked as a bookkeeper in a family business and now operates his own food supply business. He has been married for 20 years and has three children aged approximately 20, 19 and 15 respectively. In 1995 he pleaded guilty to five offences relating to the fraudulent misappropriation of $314,574 of a client's money. Two of the counts involve the forging of signatures on withdrawal forms. On 24 February 1995 he was sentenced to a minimum term of imprisonment of two years "with an additional term of two years" for each offence. Each sentence was to be served concurrently and he was eligible for consideration for release on parole on 19 February 1997. The subject offences are in respect of the appellant's alleged participation in a scheme under which a finance broker or finance brokers obtained sums in excess of $2.8 million from a lending institution or institutions by submitting applications for a loan in respect -- 2 of 6 -- 30052001 T14/SJ3 M/T COA139/2001 3 JUDGMENT of bogus real estate transactions. The evidence before the primary Judge revealed a substantial connection between the appellant and the transactions of which I have spoken. I do not propose to go into the details of the alleged scheme or the applicant's involvement in it in so far as it relates to the charges brought against him. It is relevant to note, however, that the applicant was found to have a driver's licence in the name of William Winton Smith which he stated to police officers was for business purposes. The appellant swears that he formally changed his name to William Winton Smith but it seems that he still used the name Winton Evers. The evidence before the primary Judge revealed also that a computer hard drive seized from premises at which the appellant carried on business had on it copies of a range of documents including forged New South Wales driver's licences, birth certificates, university degrees and bank statements in the names of the alleged bogus loan applicants. The material further disclosed the existence of documents addressed to one of the alleged bogus applicants, Wayne Davies, among documents seized at the appellant's place of abode. The material further shows that the appellant claimed to investigating police officers that he was renting his dwelling house from a person of that name. -- 3 of 6 -- 30052001 T14/SJ3 M/T COA139/2001 4 JUDGMENT The primary Judge concluded that there was an unacceptable risk that the appellant, if released on bail, would commit an offence or offences. He based that conclusion on the fact of the prior offences and the brevity of the period between the appellant's release from imprisonment and the time of the commission of the offences in respect of which bail is sought. In Williamson and Director of Public Prosecutions Queensland, Court of Appeal Number 7123 of 1999, unreported, Thomas JA, with whose reasons McPherson JA agreed, said in paragraph 21: "No grant of bail is risk free. The grant of bail, however, is an important process in civilised societies which reject any general right of the executive to imprison a citizen upon mere allegation or without trial. It is a necessary part of such a system that some risks have to be taken in order to protect citizens in those respects." A refusal of bail is not a decision lightly arrived at as the observations in Williamson show. Nevertheless, the grant or refusal of bail is a matter for the exercise of the discretion of the Judge hearing the application and the discretion once exercised is not likely to be disturbed on appeal. See Archie Reginald Marshall v. Director of Public Prosecutions Queensland, Court of Appeal, unreported, 14 December 2000, particularly in the reasons of McPherson JA. Whilst there are matters to which the appellant is able to point which would militate against the prospects of his re- offending whilst on bail, such as his family connections and -- 4 of 6 -- 30052001 T14/SJ3 M/T COA139/2001 5 JUDGMENT support and the need to conduct his business, there are matters which support the conclusion reached by the primary Judge. As well as those matters mentioned in his reasons there is the use by the appellant of two names, the possession of the material to which I have referred including the correspondence addressed to Wayne Davies which matters are not readily capable of innocent explanation. In my view the reasons of the primary Judge disclose no incorrect application of principle and the conclusion reached by him was open on the evidence before him. I would order that the appeal be dismissed. I observe that if there are delays in bringing this matter to trial then it will be open to the appellant to make a further application for bail. McPHERSON JA: I agree with what has been said by Mr Justice Muir. The fundamental difficulty confronting the appellant is that for his appeal to succeed it is necessary for him to demonstrate an error in the Judge's exercise of his discretion to refuse bail. The applicant has, in my view, failed to do so. There is no discernible basis on which this Court can intervene to reverse the judgment below. I therefore would dismiss the appeal. ATKINSON J: I agree with the reasons of Mr Justice Muir and Mr Justice McPherson but add that it appeared in argument that there has already been a change of circumstance - that is, -- 5 of 6 -- 30052001 T14/SJ3 M/T COA139/2001 6 JUDGMENT that the date of the committal has already been delayed some two months and that may be sufficient to warrant a further application to the Supreme Court for bail. If there were any further delay that would appear to be sufficient for another application for bail to be made citing a change of circumstances but that is not the question before us. The question before us, as has been correctly identified, is whether there is any error in the exercise of the discretion and I agree that none has been shown. McPHERSON JA: The order is that the appeal is dismissed. ----- -- 6 of 6 --