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Court of Criminal Appeal 11 December 2000

R v SINANOVIC

[2000] NSWCCA 396

Fraud & dishonesty

Citation: SINANOVIC v R [2000] NSWCCA 396
Court: NSW Court of Criminal Appeal
Date: 11 December 2000
Judges: Wood CJ at CL, Hulme J, Greg James J

Background

The appellant was convicted by a jury in the District Court on 24 September 1997 of fraudulent misappropriation under s 178A of the Crimes Act 1900. The charge alleged that he received $27,800 on behalf of a woman named Tina Ruello for the purpose of acquiring her an interest in a restaurant called Stella, then dishonestly converted that money to his own use.

Acting Judge Stewart sentenced the appellant to a minimum term of 2 years, 5 months and 12 days' penal servitude, with an additional term of 10 months and 1 day. The appellant lodged an appeal against conviction shortly after sentence was passed; no appeal against sentence was filed at that stage.

This was one of five appeals brought by the appellant against convictions recorded in the District Court across a period from September 1997 to March 1999. The judgment dealt with this appeal alongside the related sentencing adjustments arising from the other appeals.

  • Whether the trial judge erred in refusing an adjournment or stay, and in receiving submissions from a Legal Aid Commission officer, when the appellant was unrepresented
  • Whether the trial judge wrongly admitted exhibit K
  • Whether the trial miscarried due to the introduction of bad character material and prejudicial comments about the appellant's conduct of the trial
  • Whether the trial judge erred in admitting evidence from Detective Hampton, rejecting cross-examination of that witness, and allowing the Crown to cross-examine the appellant on his failure to put matters to Detective Hampton
  • Whether the summing-up was unbalanced and failed to fairly put the defence case
  • Whether the trial judge erred in refusing an adjournment to obtain alibi evidence

Decision

The Court of Criminal Appeal upheld the appeal on the ground that a fundamental error occurred at trial, sufficient to quash the conviction. Greg James J, who delivered the principal reasons, found that the error was of a kind that could not be cured by the application of the proviso (the rule that allows an appellate court to dismiss an appeal despite an error if no substantial miscarriage of justice has occurred). The proviso requires the Crown to satisfy the court that no miscarriage has in fact occurred; the Court was not so satisfied here.

On the adjournment issue, the Court applied the principles from Dietrich v R (1992) 177 CLR 292, which provides that a trial of an indigent accused on a serious charge should ordinarily be adjourned until legal representation is available, absent exceptional circumstances. The trial judge had found exceptional circumstances based on the history of delays and the appellant's conduct, and the Court engaged carefully with that factual chronology.

Because the conviction was quashed on the basis of the fundamental trial error, the Court found it unnecessary to determine the remaining grounds of appeal. The evidence was considered sufficiently strong to support a conviction, and no ground required an acquittal rather than a retrial. Accordingly, the Court ordered a new trial.

Given that the sentence imposed by Acting Judge Stewart was set aside as a consequence of the quashed conviction, a series of consecutive sentences arising from the other appeals required adjustment. Rather than re-sentence, the Court varied the commencement dates of those sentences under s 59 of the Crimes (Sentencing Procedure) Act 1999 so that the sequence ran from 3 November 1997.

Orders Made

  • Appeal upheld
  • Conviction quashed
  • New trial ordered
  • Sentence imposed by Acting Judge Stewart set aside
  • Commencement dates of consecutive sentences from related appeals varied, with the sequence commencing 3 November 1997 and structured as detailed in paragraph 144 of the judgment
  • Appellant directed to be released on parole on 2 April 2003

Key Takeaways

  • A fundamental misdirection at trial can warrant quashing a conviction even where the evidence would otherwise have supported a guilty verdict, because the proviso does not cure errors of that character.
  • Under the principles confirmed in Dietrich v R, an unrepresented indigent accused charged with a serious offence is ordinarily entitled to an adjournment until legal representation is available, though exceptional circumstances can justify proceeding.
  • Where a trial judge finds exceptional circumstances based on a history of adjournments and conduct by the accused, the appellate court will examine that factual chronology closely to assess whether the finding was open.
  • Once a conviction is quashed on appeal, any sentence imposed on that conviction must also be set aside, which can require consequential adjustment of other consecutive sentences the offender is serving.
  • Section 59 of the Crimes (Sentencing Procedure) Act 1999 gives the Court of Criminal Appeal power to vary commencement dates of sentences, providing a mechanism to adjust a series of consecutive sentences without the need for full re-sentencing.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 178A (fraudulent misappropriation)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 59

Cases
- Dietrich v R (1992) 177 CLR 292
- Driscoll v The Queen (1977) 137 CLR 522
- Wilde v The Queen (1988) 164 CLR 365