Citation: PAGE v R [2007] NSWCCA 175
Court: NSW Court of Criminal Appeal
Date: 21 June 2007
Judge(s): McClellan CJ at CL; Howie J; Hall J
Background
The appellant was convicted in the District Court of a single count of conspiracy to cheat and defraud, a common law offence, spanning approximately five years between December 1998 and January 2004. The alleged scheme involved persuading an elderly woman living alone to hand over large sums of cash on the false promise that she would receive a substantial refund cheque. Bank records indicated she lost in excess of $397,500.
The central figure in the fraud presented himself to the victim as a man called "Tony." The appellant admitted to meeting the victim on one occasion in April 2003 and acknowledged he was the "Tony" recorded on telephone intercepts. However, he denied being the same Tony involved in the earlier transactions, claiming those meetings involved a different, clean-shaven individual. He said he had always worn a goatee beard and acted only on instructions from a man called George.
The victim identified the appellant both in a police parade and from a photograph, saying she recognised him by his eyes regardless of whether he had a beard. She acknowledged inconsistencies in her evidence, particularly around the number of meetings and amounts paid, but remained firm in her identification. The appellant appealed both conviction and sentence.
Legal Issues
- Whether the indictment was flawed by latent duplicity, specifically whether a single conspiracy count improperly combined a primary conspiracy with separate, consequential conspiracies
- Whether the prosecution failed to adequately distinguish between the primary conspiracy and any consequential conspiracies
- Whether the trial judge's directions to the jury on the elements of conspiracy to defraud were adequate
- Whether the jury's verdict was unreasonable given the inconsistencies in the identification evidence
- Whether the sentencing judge erred by failing to exclude an alternate basis for conviction before assessing the appellant's culpability
- Whether the sentencing judge erred in taking into account the overt acts done in furtherance of the conspiracy when determining the appropriate sentence
Decision
The Court dismissed all four conviction grounds. On the duplicity and conspiracy structure grounds, the Court was satisfied that the indictment charged a single, continuing conspiracy and that the Crown's case had been put coherently to the jury. No miscarriage of justice arose from any failure to distinguish sharply between a primary conspiracy and later manifestations of it.
On the adequacy of the jury directions, the Court found no error in the trial judge's explanation of the elements of the offence. The jury had been sufficiently directed on what the Crown was required to prove, including the existence of an agreement and the appellant's knowing participation in it.
On the unreasonable verdict ground, the Court accepted that the victim's evidence contained inconsistencies, particularly around her memory of specific transactions after the passage of several years. Nonetheless, the Court held that the jury was entitled to accept her identification evidence, which included recognition of the appellant's eyes, a voice identification from telephone intercepts, and an identification parade. The verdict was not unreasonable.
On sentence, the Court rejected both proposed errors. The sentencing judge was entitled to proceed on the basis of the appellant's established participation without needing to formally exclude alternate routes to conviction. The Court also confirmed that the overt acts carried out in furtherance of the conspiracy were properly considered when assessing criminality, because those acts demonstrated the scale and duration of the offending. The appellant had exploited a vulnerable woman living alone in a calculated and repeated manner over many years, and the sentence of two years and six months non-parole within an overall five-year term was held to be entirely justified.
Orders Made
- Appeal against conviction dismissed.
- Leave to appeal against sentence granted but the appeal dismissed.
Key Takeaways
- A single conspiracy count covering a prolonged course of fraudulent conduct is not necessarily duplicitous merely because the scheme involved multiple transactions or different participants at different stages.
- Identification evidence from an elderly witness with imperfect memory of specific transactions can still support a conviction where the witness remains consistent and certain in identifying the accused across multiple modes of identification, including voice recognition, photograph identification, and an identification parade.
- Where a jury verdict is challenged as unreasonable, it is not sufficient that the complainant's evidence contained inconsistencies. The question is whether, on the whole of the evidence, a reasonable jury could have been satisfied beyond reasonable doubt.
- In dismissing the sentence appeal, the Court of Criminal Appeal confirmed that a sentencing judge need not formally exclude an alternate route to conviction before assessing culpability, provided the sentence is based on what the evidence established.
- Overt acts carried out in furtherance of a conspiracy are relevant sentencing considerations because they inform the court about the nature, scale, and duration of the criminal agreement, rather than attracting separate punishment in their own right.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), including s 178BA
Cases:
- Cheung v The Queen (2001) 209 CLR 1
- R v Hoar (1981) 148 CLR 32
- R v Mok (1987) 27 A Crim R 438
- Olbrich v The Queen (1999) 199 CLR 270