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Court of Criminal Appeal 25 July 2002

Sinanovic v Regina

[2002] NSWCCA 292

Fraud & dishonesty
CRIMINAL LAW APPEAL AGAINST SENTENCE FRAUDULENT MISAPPROPRIATION FORM OF INDICTMENT

Citation: Sinanovic v Regina [2002] NSWCCA 292
Court: NSW Court of Criminal Appeal
Date: 25 July 2002
Judge(s): Stein JA, O'Keefe J, Buddin J

Background

The appellant was convicted at a second District Court trial (heard by a judge sitting alone, by consent) on a charge of fraudulent misappropriation under s 178A of the Crimes Act 1900. The essential facts were that the appellant received $27,800 from a 78-year-old woman on the express understanding that he would use the funds to purchase partnership shares in a restaurant on her behalf. He instead applied the money to his own purposes, returning only $1,500 of the total she had paid him.

The indictment identified the sum received, the terms on which it was received (investment in acquiring an interest in the named restaurant), and the fraudulent misappropriation to the appellant's own use. However, it did not name the existing partners from whom the shares were to be purchased.

The appellant had previously been convicted of the same offence, but that conviction was set aside and a new trial ordered. No objection to the form of the indictment was raised at either trial. It was only when amended grounds of appeal were filed shortly before the appeal hearing that the appellant challenged the indictment's validity.

  • Whether the indictment was defective for failing to name the persons to whom the money was to be paid, rendering the charge not known to law or otherwise invalid under s 178A of the Crimes Act 1900
  • Whether the trial judge misdirected himself as to the elements of the s 178A offence
  • Whether the trial judge erred in declining to enter a verdict of not guilty at the close of the Crown case
  • Whether, even if the indictment was technically defective, the proviso in s 6 of the Criminal Appeal Act 1912 could and should be applied

Decision

O'Keefe J (with whom Stein JA and Buddin J agreed) held that the indictment was not invalid. The essential factual ingredients of the s 178A offence were present: receipt of money, the terms on which it was received, and the fraudulent misappropriation to the appellant's own use. The indictment contained sufficient particularity to enable the accused to be reasonably apprised of the charge against him.

The court noted that while it is desirable to include the names of the persons to whom payments were to be made, omitting those names is not fatal to the validity of an indictment where the accused is otherwise made aware of the essence of the matters alleged. Here, the appellant had proceeded through two trials on identically worded indictments without objection, and was plainly aware of the charge he faced.

On the sufficiency of evidence, the court found the trial judge's findings were well supported. The judge was satisfied beyond reasonable doubt that the appellant received the money on terms requiring him to invest it in the acquisition of the restaurant, that he did not do so, and that he fraudulently misappropriated the funds for his own use.

Regarding the proviso under s 6 of the Criminal Appeal Act 1912, the court found it was not strictly necessary to apply the proviso given the indictment was valid. However, O'Keefe J expressed the view that, even if the omission of names had constituted a technical defect, the proviso would have been appropriate to apply: the appellant was well apprised of the charge, was content to proceed on the existing indictment, and there was ample evidence of the offence.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • An indictment charging fraudulent misappropriation under s 178A of the Crimes Act 1900 is not invalidated solely because it omits the names of the persons to whom the received money was to be paid, provided the essential factual ingredients of the offence and sufficient particularity are included.
  • The Court of Criminal Appeal confirmed that the test for a valid indictment is whether it contains the essential ingredients of the offence and sufficiently apprises the accused of the charge, not whether every potentially relevant detail is included.
  • Where an accused has proceeded through multiple trials on identically worded indictments without objection, and has been aware throughout of the substance of the allegations, that context weighs against late challenges to indictment form on appeal.
  • Under s 6 of the Criminal Appeal Act 1912, the proviso may be applied even where a technical defect in an indictment is asserted, if no substantial miscarriage of justice has occurred, the accused understood the charge, and the evidence amply supported the conviction.
  • Notwithstanding the court's finding of validity, the decision expressly noted the desirability of including the names of persons to whom payments were to be made when drafting indictments of this kind.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 178A
- Criminal Appeal Act 1912 (NSW), s 6

Cases:
- Andrews v The Queen (1968) 126 CLR 198
- Council of the City of Shoalhaven v State Pollution Control Commission (1991) 52 A Crim R 291
- Wilde v Regina (1998) 164 CLR 365
- Cheng v The Queen (2000) 208 CLR 248
- Regina v Giri [2001] NSWCCA 197 (unreported, 12 June 2001)
- McQueeney (1989) 39 A Crim R 58
- Spies (2000) 113 A Crim R 448