Citation: Watkins v R [2008] NSWCCA 88
Court: New South Wales Court of Criminal Appeal
Date: 29 April 2008
Judge(s): McClellan CJ at CL, Simpson J, Price J
Background
The appellant was employed from April 1998 as financial controller of a family-owned timber company, Tasman KB Pty Ltd. He was a qualified accountant whose duties included preparing cheques for payment of company accounts. He did not hold cheque-signing authority himself.
Following a first trial and successful appeal, the appellant was retried and convicted by a jury on 43 counts of doing an act as an officer of a body corporate with intent to cheat or defraud the body corporate, contrary to s 176A of the Crimes Act 1900. The maximum penalty for each offence was ten years' imprisonment. Berman DCJ sentenced the appellant to an effective term of seven years with a non-parole period of four and a half years.
The appellant did not challenge the sentence but sought to have the convictions overturned on two grounds: fresh evidence said to undermine the verdicts, and an alleged misdirection (or failure to direct) by the trial judge.
Legal Issues
- Whether proposed fresh evidence, if accepted, was capable of casting doubt on the reasonableness of the guilty verdicts
- Whether the trial judge erred by failing to give a Longman v The Queen direction, which requires a jury to be warned about the dangers of convicting where a defendant may have been prejudiced by delay or the unavailability of evidence
Decision
Ground 1: Fresh Evidence
The Court examined the proposed fresh evidence, assessing both its credibility and the impact it could realistically have had on the trial. Simpson J (with whom McClellan CJ at CL and Price J agreed) concluded that the fresh evidence was not capable of casting doubt on the reasonableness of the verdicts. The evidence did not meet the threshold required to warrant intervention.
Ground 2: Absence of a Longman Direction
The appellant argued that the trial judge should have directed the jury about the disadvantage caused by the absence of certain documents, specifically that the missing documents made it difficult to test the Crown witnesses' evidence adequately. The Court found this was not a case of presumed prejudice of the kind that attracts a mandatory Longman direction.
The trial judge had in fact raised the missing documents issue and explicitly invited defence counsel to address it further. Counsel declined to do so. The transcript showed that this was, at least in part, a deliberate tactical decision. Senior counsel for the appellant on appeal was also unable to articulate with precision what an adequate direction would have said. Trial counsel had accepted during the trial that relevant documents would likely have been sparse regardless, which Simpson J described as an insuperable difficulty for the ground.
The Court rejected both grounds and dismissed the appeal against conviction.
Orders Made
- Appeal against conviction dismissed
Key Takeaways
- Fresh evidence will not disturb a conviction unless it is credible and capable of casting doubt on the reasonableness of the guilty verdicts; evidence falling short of that threshold will be rejected.
- A Longman direction is not automatically required wherever documents are missing. The Court of Criminal Appeal confirmed this was not a case of presumed prejudice and that the Longman principle did not compel a direction in these circumstances.
- Where a trial judge explicitly invites defence counsel to seek a particular jury direction and counsel declines, an appellate ground based on the absence of that direction is significantly weakened.
- Tactical decisions made by trial counsel, including a deliberate choice not to press for a direction after weighing potential benefits and pitfalls, will not readily found a successful appeal.
- An appellant advancing a claim that a jury direction should have been given must be able to articulate what that direction ought to have said; inability to do so undermines the ground.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 176A
- Family Provision Act 1982 (NSW)
- Financial Transaction Reports Act 1988 (Cth)
Cases
- R v Watkins [2005] NSWCCA 164; 153 A Crim R 434 (earlier successful appeal by the same appellant)
- Longman v R [1989] HCA 60; 168 CLR 79
- R v Abou-Chabake [2004] NSWCCA 356; 149 A Crim R 417