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Court of Criminal Appeal 6 May 2011

Kearns v R

[2011] NSWCCA 103

Also reported as 213 A Crim R 150
Fraud & dishonesty
CRIMINAL LAW SUBSEQUENT APPEAL DISMISSED WHETHER LEAVE TO APPEAL NECESSARY DIFFERING OBITER VIEWS ON FACTS WAS OPEN ON FACTS WAS OPEN

Citation: Kearns v R [2011] NSWCCA 103
Court: Court of Criminal Appeal, New South Wales
Date: 6 May 2011
Judges: Giles JA at [1], Latham J at [97], Rothman J at [98]

Background

The appellant was convicted in the District Court in December 2002 on nine counts arising from his conduct between 1994 and 1995. The offences involved the improper use of his position as an officer of three companies in the Nambucca Group, a debenture-funded investment and property development operation based in northern New South Wales, and dishonestly obtaining money from investors by deception and false statements.

The appellant received a custodial sentence of six years with a non-parole period of four and a half years. His initial conviction appeal was dismissed in 2003, and a subsequent application for special leave to the High Court was refused in 2004.

In 2007, both the Commonwealth and New South Wales Attorneys referred the whole case under the relevant ministerial referral provisions, with the matter to be dealt with as an appeal under the Criminal Appeal Act 1912 (NSW). Three grounds of appeal were ultimately maintained, focusing on the sufficiency of evidence as to officer status, the sufficiency of evidence as to knowingly false representations, and an allegation that the trial judge had been asleep for significant periods during the trial.

  • Whether leave to appeal was required where the referral came via the ministerial referral mechanism and the grounds did not involve questions of law alone
  • Whether the jury could reasonably have been satisfied beyond reasonable doubt that the appellant was an officer of the relevant companies
  • Whether the jury could reasonably have been satisfied beyond reasonable doubt that the appellant made knowingly false representations to investors
  • Whether the trial judge was asleep or apparently asleep during the trial, and if so whether that produced a miscarriage of justice

Decision

Leave to appeal: The court noted a genuine tension in the legislation and case law on whether leave to appeal is required when a case is referred under the ministerial referral provisions. Giles JA identified competing views expressed in R v Catt and GAR v R (No 1), with no definitive resolution reached in either. The court declined to resolve the question finally, noting that even if leave were required it would be granted in any event.

Officer status (Counts 1 to 5): The appellant argued the evidence was insufficient to establish that he held the position of officer in the three Nambucca Group companies. The court found the jury's verdicts were open on the evidence. The combination of the appellant's alleged de facto control, the documents relating to his retirement and acceptance of office, and the disputed facsimile transmission collectively provided a sufficient factual basis for the jury's conclusions.

Knowingly false representations (Counts 6 and 9, and Count 7): The court similarly found that the evidence supported the jury's conclusions that the appellant had made representations he knew to be false when soliciting funds from investors. The verdicts were open on the evidence adduced at trial.

Sleeping judge (Ground 13): This was the ground that had prompted the original ministerial referral. The court assessed the evidence carefully, including the appellant's own evidence and affidavit material from a court officer who had been present throughout the trial. The court found that the appellant's evidence was inconsistent across different accounts and could not be accepted. While there was some evidence that the trial judge's positioning occasionally gave an uninformed observer the impression he might be nodding off, the evidence also showed he was demonstrably attentive when objections arose and procedural matters required his engagement. The court was not satisfied the trial judge was in fact asleep at any point, and no miscarriage of justice was established.

Orders Made

  • The appeal was dismissed.

Key Takeaways

  • A ministerial referral of a whole case under s 77(1)(b) of the Crimes (Appeal and Review) Act 2001 (NSW) is to be dealt with as a Criminal Appeal Act appeal, but whether leave is required for grounds not involving questions of law alone remains an unresolved question, with differing obiter views expressed across multiple CCA decisions.
  • Sufficient evidence existed on the facts for the jury to be satisfied beyond reasonable doubt that the appellant was an officer of the relevant companies, even where that status rested on a combination of de facto control, formal documents, and a contested facsimile.
  • Where an appellant alleges the trial judge was asleep, the mere appearance of drowsiness, unaccompanied by any demonstrated failure to supervise the proceedings, does not establish a miscarriage of justice.
  • In dismissing Ground 13, the Court of Criminal Appeal applied the principles from Cesan v The Queen [2008] HCA 52 in the context of a trial judge rather than a juror, requiring evidence of actual inattention and consequent distraction or unfairness, not merely an occasional visual impression.
  • An appellant's credibility in proceedings addressing a sleeping judge allegation can be assessed against contemporaneous accounts from independent witnesses; inconsistencies across multiple versions of the appellant's account weighed heavily against the ground succeeding.

Legislation and Cases Referenced

Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), ss 77(1)(b), 79(1)(b), 86
- Criminal Appeal Act 1912 (NSW), ss 5(1), 6
- Corporations Law (Cth), ss 232(6), 1317FA(1)
- Crimes Act 1900 (NSW), ss 178BA, 178BB
- Criminal Appeal Rules, r 78

Cases:
- Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358
- Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125
- GAR v R (No 1) [2010] NSWCCA 163; (No 2) [2010] NSWCCA 164; (No 3) [2010] NSWCCA 165
- R v Catt [2005] NSWCCA 279
- R v JJT [2006] NSWCCA 283; (2006) 67 NSWLR 152
- The Queen v Nguyen [2010] HCA 38; (2010) 271 ALR 493
- Mickelberg v The Queen (1989) 167 CLR 259
- Re Coldham; Ex Parte Brideson [1989] HCA 2; (1989) 166 CLR 338
- R v Chard (1984) AC 279