AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 17 December 2008

Nikolaidis v R

[2008] NSWCCA 323

Also reported as (2008) 191 A Crim R 556
Fraud & dishonesty
CRIMINAL LAW APPEAL AND NEW TRIAL MISCARRIAGE OF JUSTICE MISDIRECTION AND NON DIRECTION CRIMES ACT 1900 S 300, S 305 CRIMINAL LAW

Citation: Nikolaidis v R [2008] NSWCCA 323
Court: New South Wales Court of Criminal Appeal
Date: 17 December 2008
Judge(s): McClellan CJ at CL; Simpson J; Hislop J

Background

The appellant was a solicitor who had acted for a client, Mr Preston, from 1984. A dispute over legal fees arose after the professional relationship ended in 1992, leading to costs assessment proceedings in the mid-1990s. During those proceedings, a letter dated 19 April 1984, purporting to record the agreed terms of engagement, emerged from the appellant's firm's files.

The Crown alleged the letter was a forgery, created on the appellant's instructions years after its stated date, to support a higher charge-out rate than the regulated scale would otherwise permit. The appellant's former secretary gave detailed evidence that she had typed the letter on the appellant's instructions on old firm letterhead, using a typewriter, to make it appear authentic. The appellant denied giving those instructions.

This was the fourth time the appellant faced the charge. The first trial was aborted, and two juries were discharged without verdict following deadlocks. The fourth trial before Knox DCJ in the District Court resulted in conviction on one count of making a false instrument under s 300(1) of the Crimes Act 1900, carrying a maximum of ten years' imprisonment.

  • Whether the trial judge gave adequate jury directions on the elements of the offence of making a false instrument under s 300(1) of the Crimes Act 1900
  • Whether a substantial miscarriage of justice arose from the trial judge granting the Crown leave to cross-examine the appellant on an alleged misappropriation of $5,000 and on alleged concealment of a potential witness
  • Whether a substantial miscarriage of justice arose from the Crown's failure to seek leave under s 108(3) of the Evidence Act 1995 before adducing complaint evidence from Ms Middleton about a prior consistent statement made by the appellant's former secretary, Ms Moffatt

Decision

Ground 1: Jury directions on the elements of the offence. The court examined whether the trial judge's directions adequately conveyed the nature and scope of s 300(1). The charge as formulated required the Crown to prove that the appellant made the false instrument with the intention of using it himself to induce the costs assessor to accept it as genuine and act on it to the prejudice of Mr Preston. Simpson J, with whom Hislop J agreed, found the directions were sufficient given the narrow and simple way the case was ultimately put to the jury. No substantial miscarriage of justice was established.

Ground 2: Cross-examination of the appellant. The appellant challenged the grant of leave to cross-examine him on two matters: an alleged $5,000 misappropriation from Mr Preston and alleged concealment of a witness. The court considered the relevant provisions of the Evidence Act 1995, including ss 104, 112, and 192. After examining the manner and form of the cross-examination, the court was not satisfied that any error in granting leave, or in how the cross-examination was conducted, gave rise to a substantial miscarriage of justice.

Ground 3: Complaint evidence and the absence of a leave application. Ms Moffatt had given evidence that she typed the false letter on the appellant's instructions. The Crown adduced evidence from Ms Middleton that Ms Moffatt had made a statement consistent with that account back in 1999, before any alleged motive to fabricate arose. The Crown did not seek leave under s 108(3) of the Evidence Act 1995 before adducing this evidence, and the trial judge did not formally grant it. The court found, however, that the preconditions for leave under s 108(3)(b) were satisfied: the alleged motive to fabricate post-dated the earlier statement. Simpson J held that had leave been sought, it would inevitably have been granted, and that none of the s 192 factors militated against granting it. The failure to follow the formal leave procedure did not occasion any miscarriage of justice.

All three grounds of appeal against conviction were rejected. Leave to appeal against sentence was granted but the sentence appeal was also dismissed.

Orders Made

  • Appeal against conviction dismissed.
  • Leave granted to appeal against sentence.
  • Appeal against sentence dismissed.

Key Takeaways

  • In dismissing the conviction appeal, the Court of Criminal Appeal confirmed that a failure to follow the formal leave procedure under s 108(3) of the Evidence Act 1995 will not automatically constitute a miscarriage of justice where the preconditions for leave were clearly satisfied and no objection was raised at trial.
  • Under s 108(3)(b), prior consistent statements are admissible to rebut a suggestion of recent fabrication where the statement was made before the alleged motive to fabricate arose; the court found that requirement was met on the evidence.
  • A conviction for making a false instrument under s 300(1) of the Crimes Act 1900 requires proof that the accused made the instrument and intended to use it to induce another to accept it as genuine and act on it to someone's prejudice; the charge as formulated fixed the Crown to proving the appellant intended to use the document himself.
  • No substantial miscarriage of justice arose from cross-examination permitted under ss 104 and 112 of the Evidence Act 1995, even where the cross-examination touched on alleged prior misconduct, provided the overall conduct of the trial did not produce an unfair result.
  • Where the central factual issue at trial is a narrow credibility contest, the adequacy of jury directions falls to be assessed in the context of how the case was actually presented, including the simplicity of the final addresses.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 300, 305
- Evidence Act 1995 (NSW), ss 104, 108, 112, 128, 165, 192
- Legal Profession Act 1987 (NSW) (repealed)

Cases cited:
- DPP v Hamman (NSWCCA, 1 December 1998, unreported)
- Law Society of NSW v Carol Foreman (1994) 34 NSWLR 408
- Leung v R (2003) 144 A Crim R 441
- More v R (1988) 86 Cr App R 234
- R v BD (1997) 94 A Crim R 131
- R v Bragias (1997) 92 A Crim R 330
- R v Campbell (1985) 80 Cr App Rep 150
- R v Ceylan (2002) 4 VR 208
- R v Garcia (1988) 87 Cr App Rep 175
- R v Hovan [2005] NSWCCA 179
- R v Kukunoski (NSWCCA, 17 August 1989, unreported)
- R v Marvin (NSWCCA, 1 November 1995, unreported)
- R v Ondhia [1998] 2 Cr App R 150
- R v Pont (2001) 121 A Crim R 302
- R v Smith (2000) 114 A Crim R 8
- R v Stalder [1981] 2 NSWLR 9
- R v Tobierre [1986] 1 All ER 346
- R v Vincent Cofini (NSWCCA, 4 March 1997, unreported)
- R v Zorad (1990) 19 NSWLR 91