Citation: Jin v Regina [2006] NSWCCA 198
Court: NSW Court of Criminal Appeal
Date: 28 June 2006
Judge(s): Grove J, Hidden J, Kirby J
Background
The appellant was convicted in the District Court on two counts of dishonestly obtaining money by deception. The Crown case was that he formed a relationship with a woman studying English in Sydney, falsely represented himself as a wealthy American businessman, and induced her to hand over $80,000 and then $390,000 in cash on the basis that he needed the funds for pharmaceutical business dealings and would repay her promptly.
The appellant did not give evidence at trial. His defence, advanced through cross-examination, was that the money was paid as the purchase price of a valuable painting, not as loans obtained by deception. The complainant denied this account. The jury returned guilty verdicts after approximately one hour and twenty-two minutes of deliberation.
The appellant was sentenced to an aggregate term of three years' imprisonment with a non-parole period of one year and nine months. He appeared in person on appeal, having abandoned a companion application for leave to appeal against sentence at the hearing.
Legal Issues
- Whether the trial judge erred in directing the jury that their verdicts must be unanimous without also explaining they could be discharged if unable to agree
- Whether the trial judge erred in responding to a jury question concerning a written document signed by both the appellant and the complainant
- Whether the trial judge failed to adequately address inconsistencies between the complainant's trial evidence and an earlier incident report she made to a security officer
- Whether the conduct of the trial was otherwise affected by error, including complaints about the appellant's legal representation and the adequacy of responses to jury questions
- Whether criticisms of the evidence, including material not led at trial, provided any basis to set aside the verdicts
Decision
On the first ground, the Court found no occasion had arisen at trial requiring the judge to explain the possibility of jury discharge. The jury never indicated difficulty reaching agreement and returned their verdicts in under one hour and thirty minutes. The direction to decide unanimously was appropriate in the circumstances.
On the second ground, the appellant complained that the jury had asked about "fraudulent signatures" on a promise-to-marry document and that the judge dismissed the question. The Court found the transcript did not support this account. What the transcript recorded was a jury note requesting a translation of the document, to which the judge appropriately responded by reminding the jury of the complainant's evidence about it.
On the third ground, concerning inconsistencies in the complainant's account relative to the security officer's incident report, the Court found the inconsistencies had in fact been the subject of cross-examination and dealt with by counsel in addresses. They were matters for the jury to assess, and no error arose in how they were handled.
The appellant's remaining complaints, including allegations about his legal representation preventing him from giving evidence, were not borne out by the transcript. The Court noted that signed written instructions from the appellant confirmed he had directed his legal team not to call him as a witness. Criticisms directed at the evidence generally, and material not led at trial, provided no basis for the verdicts to be set aside.
Orders Made
- Appeal dismissed
Key Takeaways
- A direction to the jury that verdicts must be unanimous does not require any accompanying explanation about the possibility of discharge unless the jury has actually indicated difficulty agreeing; no such indication arose here.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that inconsistencies between a complainant's trial evidence and an earlier statement do not constitute trial error where they were fully explored in cross-examination and addressed in closing addresses.
- Material not led at trial cannot be relied upon on appeal without establishing a proper basis for the court to receive it as fresh evidence.
- Signed written instructions from a defendant confirming they did not wish to give evidence will be treated as a complete answer to a later complaint that legal representatives prevented them from testifying.
- No question of principle arose in this appeal; the grounds raised were characterised as criticisms of the evidence and fact-finding that were the proper province of the jury.
Legislation and Cases Referenced
Cases:
- Black v The Queen (1993) 179 CLR 44