Citation: Regina v George Adler [2002] NSWCCA 180
Court: NSW Court of Criminal Appeal
Date: 20 May 2002
Judge(s): Spigelman CJ, Barr J, Bergin J
Background
The appellant was convicted in the District Court on 11 counts of dishonestly obtaining by deception under s 178BA of the Crimes Act 1900 (NSW). The charges arose from a series of telephone calls made by the appellant while he was a prisoner at the John Moroney Correctional Centre in late 1996. Through those calls, the appellant allegedly persuaded a travel agency proprietor to hand over cheques totalling $69,380.
The Crown's case was that the appellant represented to the complainant that the money would be used to purchase shares in a company called Natfibre Limited. The alleged deception was that the appellant knew, at the time of making those representations, that shares in Natfibre were not available for public sale.
The appellant was sentenced to four years' imprisonment on each count, to be served concurrently. He appealed, challenging, among other things, a specific direction the trial judge gave the jury.
Legal Issues
- Whether the trial judge's direction that the jury must "entirely dismiss from their minds any thoughts" of the money changing hands as a result of a loan was a material misdirection.
- Whether the availability of a loan as an alternative hypothesis was capable of raising a reasonable doubt about the essential element of the offence, namely that the appellant represented the money was for a share investment.
- Whether, absent the misdirection, a properly instructed jury acting reasonably might not have returned guilty verdicts, thereby depriving the appellant of a real chance of acquittal.
Decision
The Court of Criminal Appeal, with all three judges agreeing, found that the trial judge's direction to the jury was a material error. The nature of the representation, that is, that the money was for an investment in shares, was an essential element of each count as charged. By directing the jury to dismiss any consideration of a loan as an alternative explanation for why the complainant handed over the money, the trial judge removed from the jury's deliberations a potentially exculpatory hypothesis.
Bergin J, who delivered the substantive reasons, held that the exclusion of the loan hypothesis would very likely have impacted the jury's assessment of the complainant's evidence. Any doubts the jury may have held about her account would have been given significantly less weight without the ability to consider whether the payments were induced by something other than a criminal deception.
The Court applied the principles in Festa v The Queen and KRM v The Queen, finding it could not be satisfied that a properly instructed jury would inevitably or necessarily have returned guilty verdicts. The Crown's evidence as to the identity of the caller was described as very strong, but the question of what was actually represented in those calls depended substantially on the complainant's own account. The misdirection denied the appellant a real chance of acquittal.
Orders Made
- The appeal is allowed.
- The convictions on all 11 counts in the indictment are quashed.
- A new trial is to be held.
Key Takeaways
- An essential element of an offence under s 178BA of the Crimes Act 1900 must be established by the Crown, and a jury direction that forecloses rational alternative hypotheses bearing on that essential element constitutes a material misdirection.
- Where a trial judge directs the jury to entirely disregard an alternative hypothesis, such as that the complainant handed over money as a result of a loan rather than a fraudulent investment representation, the direction may improperly curtail the jury's capacity to assess the complainant's evidence and weigh any doubts about it.
- The Court of Criminal Appeal confirmed that convictions will be quashed where the court cannot be satisfied that a properly instructed jury, acting reasonably, would inevitably or necessarily have returned guilty verdicts.
- Strength of the Crown's evidence on some elements, here the identity of the person making the calls, does not cure a misdirection on the essential element that is actually in dispute.
- Applying Festa v The Queen and KRM v The Queen, the relevant test is whether the misdirection deprived the appellant of a real chance of acquittal, not merely a theoretical or fanciful one.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 178BA
- Criminal Appeal Act 1912 (NSW)
Cases
- Barca v The Queen (1975) 133 CLR 82
- Festa v The Queen (2001) 76 ALJR 291
- Gilbert v The Queen (2000) 201 CLR 414
- KRM v The Queen (2001) 75 ALJR 550
- R v Al-Khair, unreported, NSWCCA, 20 June 1994 (Gleeson CJ, Priestley JA and Wood J)
- Whittaker v The Queen (1993) 68 A Crim R 476