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8
Court of Criminal Appeal 18 December 2009

Doja v R

[2009] NSWCCA 303

Also reported as (2009) 198 A Crim R 349
Fraud & dishonesty
CRIMINAL LAW APPEAL CONVICTION APPEAL DEFECTIVE INDICTMENT WHETHER THE DEFECT HAS BEEN WAIVED WHETHER THE PROVISO SHOULD BE APPLIED

Citation: Doja v R [2009] NSWCCA 303
Court: Court of Criminal Appeal, New South Wales
Date: 18 December 2009
Judge(s): Spigelman CJ; McClellan CJ at CL; Grove J

Background

The appellant was convicted in the District Court of multiple offences arising from his conduct as a financial adviser. The offences included charges under s 178BB of the Crimes Act 1900, which concerns obtaining financial advantage by deception. The sentencing judge, Goldring DCJ, found that the appellant had abused his position of trust with unsophisticated clients and financial institutions, that the offences were committed for financial gain as part of a planned operation, and that losses were suffered by both clients and Macquarie Bank.

The appellant challenged both his conviction and the sentence imposed. At the conviction level, the challenge centred on two counts (counts 13 and 14) that failed to expressly plead the mental element of the offence.

  • Whether the failure to state the mental element of the offence in the indictment rendered the indictment invalid and the trial a nullity
  • Whether any such defect was cured by the jury's verdict
  • Whether the defect had been waived by the appellant
  • Whether the proviso under s 6(1) of the Criminal Appeal Act 1912 applied to prevent a miscarriage of justice finding
  • Whether the trial judge misdirected the jury
  • Whether the sentencing judge erred in his findings, particularly regarding the distinction between a "knowing falsehood" and "reckless disregard for the truth"

Decision

Conviction appeal. The Court identified a fundamental principle that an indictment must disclose an offence punishable by law, and recognised that an indictment performs several critical functions: conferring jurisdiction on the court, informing the accused of the charge, enabling proper jury directions, and providing the basis for pleas of autrefois acquit or convict. The failure to plead the mental element of an offence is a recognised species of defect capable, in some cases, of rendering a trial a nullity.

However, the Court concluded that the defect in this case did not deprive the District Court of jurisdiction. Spigelman CJ and McClellan CJ at CL reasoned that, on the facts and circumstances of the trial, the indictment was not rendered invalid. Grove J expressed the additional view that, absent a defect denying jurisdiction, defects or omissions in an indictment's averments are cured by the jury's verdict where the jury has been properly instructed and must have found all necessary elements of the offence adversely to the accused. The Court also rejected the ground that the jury had been misdirected by the trial judge.

Sentence appeal. The appellant argued that the sentencing judge erred in his findings, particularly in how he treated the distinction between a knowing falsehood and reckless disregard for the truth. The Court found there was little practical difference in criminality between those two mental states on the facts of this case. Both states were characterised as involving dishonesty or fraud. Given the findings about the appellant's abuse of trust, the sustained and sophisticated nature of the offending, and the harm caused to victims, the Court found the sentences imposed were appropriate to punish the appellant and deter similar conduct.

Orders Made

  • Appeal against conviction dismissed
  • Leave to appeal against sentence granted, but the appeal dismissed

Key Takeaways

  • An indictment must disclose an offence punishable by law. This is a longstanding fundamental principle of criminal procedure, and statutory provisions permitting defects to be overlooked do not override it where the indictment discloses no offence at all.
  • Not every defective indictment deprives the trial court of jurisdiction. The Court of Criminal Appeal distinguished between defects that are jurisdictional in character and those that fall short of that threshold.
  • Where a jury has been properly directed and must have found all essential elements of an offence adversely to the accused, a defect or omission in the averments of the indictment can be cured by the verdict (absent a jurisdictional defect), as confirmed by Grove J by reference to Heymann v The Queen (1873).
  • In sentencing for offences under s 178BB of the Crimes Act 1900, there is little meaningful difference in criminality between a knowing falsehood and a reckless disregard for the truth. Both involve dishonesty or fraud.
  • Abuse of a position of trust over unsophisticated clients, combined with sustained and planned offending causing financial loss, supported the sentences imposed in this case.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 178BB
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Criminal Procedure Act 1986 (NSW), ss 5, 46, 127
- District Court Act 1973 (NSW), s 166(1)
- Corporations Act 2001 (Cth)

Key Cases:
- R v Mai (1992) 26 NSWLR 371
- Broome v Chenoweth (1946) 73 CLR 583
- Johnson v Miller (1937) 59 CLR 467
- Ex parte Lovell; Re Buckley (1938) 38 SR (NSW) 153
- Lodhi v R [2006] NSWCCA 121; (2006) 199 FLR 303
- R v Halmi [2005] NSWCCA 2; (2005) 62 NSWLR 263
- Swansson v The Queen [2007] NSWCCA 67; (2007) 69 NSWLR 406
- R v Janceski [2005] NSWCCA 281; (2005) 64 NSWLR 10
- John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508
- Heymann v The Queen (1873) LR 8 QB 102
- Wilde v The Queen (1987) 164 CLR 365
- Glennon v The Queen (1993) 179 CLR 1