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21
Court of Criminal Appeal 10 March 1999

Regina v GIAM

[1999] NSWCCA 53

Also reported as (1999) 104 A Crim R 416
Fraud & dishonesty
CRIMINAL LAW CHEAT AND DEFRAUD AS A DIRECTOR S176A CRIMES ACT 1900 S178BB CRIMES ACT 1900 CRIMINAL LAW INDICTMENT

Citation: Regina v GIAM [1999] NSWCCA 53
Court: NSW Court of Criminal Appeal
Date: 10 March 1999
Judges: Spigelman CJ, Abadee J, Adams J

Background

The appellant was a director who controlled a group of property development companies. He exploited a banking "set-off" arrangement, which pooled company accounts, by adding entities unconnected to the corporate group, including companies associated with his own private interests. Over the relevant period, approximately $26 million was drawn for his personal benefit, including around $13 million paid to bookmakers to fund a significant gambling addiction.

The appellant was convicted in the District Court on six counts of making a false statement with intent to obtain a financial advantage (s 178BB, Crimes Act 1900) and one count of cheating and defrauding as a director (s 176A, Crimes Act 1900). The six s 178BB counts each concerned a separate set-off facility obtained from the State Bank on different dates. No appeal was brought against the seventh count.

Each of the six challenged counts alleged that the appellant had made a false statement by representing both that he was secretary of the relevant companies and that he had been authorised to enter into the banking arrangements. The appeal turned on whether each count impermissibly bundled two separate statements into a single charge.

  • Whether each of the six s 178BB counts was bad for duplicity, because each count contained two distinct alleged false statements (as to the appellant's position as secretary, and as to his authority to act) without specifying which statement the jury had to find was false
  • Whether the convictions were unsafe and unsatisfactory on the evidence
  • Whether the Court could apply s 7(1) of the Criminal Appeal Act 1912 to affirm the sentence on the unchallenged seventh count rather than order a retrial on the six counts

Decision

Duplicity. The Court held that the word "statement" in s 178BB of the Crimes Act 1900 is singular and cannot be read as "statements" by operation of s 8(b) of the Interpretation Act 1987. Applying the High Court's reasoning in Walsh v Tattersall (1996) 188 CLR 77, each count impermissibly charged two distinct false statements in a single count. Because the trial judge directed the jury using "and/or" language, it was impossible to know whether the jury found the statement about the appellant's position as secretary, or the statement about his authority, to be false. This uncertainty was fatal to the convictions.

Unsafe and unsatisfactory. The Court noted that "unsafe and unsatisfactory" is no longer the appropriate framing for a standalone ground of appeal, following Fleming v The Queen [1998] HCA 68 and the Court's own earlier decision in R v Johnson. The ground now falls to be assessed within the interconnected framework of ss 6 and 8 of the Criminal Appeal Act 1912. Given the Court's conclusion on duplicity, detailed consideration of this ground was not necessary to resolve the appeal.

Sentence on the unchallenged count. The Crown argued that the Court could simply affirm or adjust the sentence on the unchallenged seventh count rather than order a retrial. The Court rejected this approach. Following Ryan v R (1981) 149 CLR 1, s 7(1) of the Criminal Appeal Act 1912 was not available in circumstances where the conviction on the other count was not itself before the Court. The Court also observed that the sentencing judge had applied a totality principle across all seven counts, making it inconceivable that the sentence on the seventh count alone would have been the same. A new trial was the only available order.

Orders Made

  • Appeal allowed
  • Convictions on the six counts quashed
  • New trial ordered on the six counts

Key Takeaways

  • The word "statement" in s 178BB of the Crimes Act 1900 is singular and cannot be construed to mean "statements" by reference to s 8(b) of the Interpretation Act 1987, following the High Court's approach in Walsh v Tattersall.
  • A count in an indictment that bundles two distinct false statements into a single charge, without requiring the jury to identify which statement was false, is bad for duplicity. The duplicity doctrine exists partly to ensure that a sentencing judge knows the precise factual findings underlying the conviction.
  • "Unsafe and unsatisfactory" no longer operates as a distinct or self-contained ground of appeal in NSW. The relevant analysis is conducted within the framework of ss 6 and 8 of the Criminal Appeal Act 1912.
  • Where a sentencing judge has applied a totality principle across multiple counts, an appellate court may be unable to affirm the sentence on an unchallenged count when other counts are quashed, because the original sentence cannot reliably be disaggregated.
  • Section 7(1) of the Criminal Appeal Act 1912 does not permit the Court of Criminal Appeal to affirm a sentence on a count that was not itself the subject of an appeal, even where the appellant was convicted on that count at trial.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 176A, 178BB
- Criminal Appeal Act 1912 (NSW), ss 5(1), 6(1), 6(2), 7(1), 8(1)
- Interpretation Act 1987 (NSW), s 8(b)

Cases
- Walsh v Tattersall (1996) 188 CLR 77
- S v The Queen (1989) 168 CLR 266
- Fleming v The Queen [1998] HCA 68; (1999) 73 ALJR 1
- Ryan v R (1981) 149 CLR 1
- Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627
- King v The Queen (1986) 161 CLR 423
- Stanton v Abernathy (1990) 19 NSWLR 656
- Stanton v Abernathy (No 2) (1991) 53 A Crim R 241
- R v Johnson, NSWCCA, 31 July 1998