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Court of Criminal Appeal 20 September 2012

Bangaru v R

[2012] NSWCCA 204

Fraud & dishonesty
CRIME APPEAL AGAINST CONVICTION OBTAIN MONEY BY DECEPTION WHETHER MISCARRIAGE OF JUSTICE S 97(1) EVIDENCE ACT APPEAL AGAINST SENTENCE

Citation: Bangaru v R [2012] NSWCCA 204
Court: NSW Court of Criminal Appeal
Date: 20 September 2012
Judge(s): Beazley JA, Hall J, Beech-Jones J (unanimous)

Background

The appellant was the managing director and ultimate controller of a group of property development companies. Between approximately November 2001 and December 2003, the Crown alleged he dishonestly obtained around $3.7 million from seventeen investors by inducing them to invest on the basis that funds would be used only for specific property developments, when in fact they were dissipated on unrelated expenditure. Between January 2004 and July 2005, he was further alleged to have obtained or retained approximately $19.8 million in loan and finance facilities from lending institutions by making statements, with reckless disregard as to their accuracy, that company financial statements presented a "true and fair view" when they did not.

A District Court jury convicted the appellant on 13 counts: four under former s 178BB of the Crimes Act 1900 (obtaining money by false or misleading statements, relating to the lending institutions) and nine under former s 178BA (obtaining money by deception, relating to the investors). He was sentenced to terms of imprisonment on each count in December 2010.

The appellant appealed to the Court of Criminal Appeal against both conviction and sentence, raising seven grounds in total.

  • Whether trying the appellant on counts 6 to 13 contravened the "specialty rule" in s 42 of the Extradition Act 1988 (Cth), given he had been extradited from the United States on charges under a different provision of the Crimes Act
  • Whether the trial judge should have directed the jury to acquit on counts 1 to 4, on the basis that the Crown had not properly articulated or pursued the false statement case as framed on the indictment
  • Whether the trial judge failed to give necessary directions to the jury on a particular limb of counts 1 to 4
  • Whether the jury verdicts on counts 6 to 13 (the investor counts) were unreasonable, unsafe or unsatisfactory
  • Whether the trial judge erred by failing to give a tendency direction under s 97(1) of the Evidence Act 1995 in respect of counts 5 to 13
  • Whether the non-parole period as stated in the sentencing judgment was uncertain
  • Whether the sentencing judge failed to find special circumstances, failed to make a meaningful allowance for rehabilitation, and imposed sentences that were manifestly excessive, having regard to the totality principle

Decision

Ground one: Extradition specialty rule. The appellant had been surrendered to face charges under former s 178A of the Crimes Act but was ultimately tried under former s 178BB. The Court applied the High Court's approach in Truong v R, which requires the comparison between surrendering and trial offences to be conducted by reference to the actual conduct alleged, at a level of abstraction between a formal statement of elements and a mere account of evidence. The Court held that the conduct constituting the offences for which he was surrendered was, at that level of analysis, the same conduct underlying the counts on which he was tried. No breach of s 42 was established, and this ground was dismissed.

Grounds two to five: The lending institution counts (counts 1 to 4). The appellant argued the Crown had run an inconsistent or impermissible case concerning the "true and fair view" statements in the companies' financial accounts, and that the trial judge should have directed acquittal or given corrective directions. The Court examined the conduct of the Crown case in detail, including the indictment, opening, evidence from accountants, and the sequence of submissions. It concluded that the case was sufficiently coherent and that no miscarriage of justice resulted. The trial judge's directions, read as a whole, adequately addressed the jury on the relevant issues. These grounds were dismissed.

Ground seven: Unsafe verdicts on the investor counts. The Court examined each of the eight investor counts individually, reviewing the evidence of each investor and the appellant's case on each. It concluded that, for each count considered, the jury verdicts were not unreasonable and were supported by the evidence. This ground was dismissed.

Ground six: Tendency direction. The appellant argued the trial judge was required to give a tendency direction under s 97(1) of the Evidence Act in relation to the investor counts. The Court found no error in the trial judge's approach in this respect and dismissed the ground.

Sentence appeal. The Court granted leave to appeal on all sentence grounds but rejected each in turn. The non-parole period was not shown to be uncertain, special circumstances had been adequately considered, the allowance for rehabilitation was not insufficient as a matter of principle, and the total sentence, though structured by grouping counts and managing accumulation pragmatically, was not manifestly excessive. The Court noted one minor error: the sentencing judge had incorrectly described count 5 as occurring in the same period as counts 6 to 8, when it had in fact occurred earlier. However, as the error operated in the appellant's favour (concurrency where partial accumulation may have been appropriate), it did not warrant intervention.

Orders Made

  • The appeal against conviction on all counts is dismissed.
  • The application for leave to appeal against sentence on all counts is granted.
  • The appeal against sentence on all counts is dismissed.

Key Takeaways

  • Under s 42 of the Extradition Act 1988 (Cth), the comparison between the offence for which a person was surrendered and the offence for which they are tried is not a purely technical, elements-based exercise. Following Truong v R, it is conducted by reference to the actual conduct alleged, at a level between formal elements and raw evidence.
  • A discrepancy between the section of the Crimes Act named in the extradition request and the section under which a person is ultimately tried does not automatically breach the specialty rule, provided the underlying conduct is the same.
  • Where a Crown case is developed at trial through evidence and submissions in a manner that may differ from the strict terms of the indictment, a miscarriage of justice will not necessarily follow unless the departure caused actual prejudice to the accused.
  • In dismissing the sentence appeal, the Court confirmed that a sentencing judge's pragmatic grouping of offences for the purposes of accumulation and concurrency is not inherently erroneous, so long as the overall sentence reflects the totality of the criminality involved.
  • A minor factual error in a sentencing judgment does not warrant appellate intervention where the error operated in the appellant's favour and no complaint was raised by the appellant about it.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW): ss 178A, 178BA, 178BB
- Extradition Act 1988 (Cth): ss 10(2), 42
- Evidence Act 1995 (NSW): ss 97(1), 110
- Criminal Appeal Act 1912 (NSW): ss 5, 6(1)
- Criminal Procedure Act 1986 (NSW): s 20
- Corporations Act 2001 (Cth): ss 200, 292, 299
- Trade Practices Act 1974 (Cth): s 52

Cases:
- Truong v R [2004] HCA 10; 223 CLR 122
- SKA v R [2011] HCA 13; 243 CLR 400
- M v R [1994] HCA 63; 181 CLR 487
- MFA v R [2002] HCA 53; 213 CLR 606
- Morris v R [1987] HCA 50; 163 CLR 454
- MWJ v R [2005] HCA 74; 80 ALJR 329
- House v The King [1936] HCA 40; 55 CLR 499
- Dao v R [2011] NSWCCA 63; 278 ALR 765
- DSJ v R; NS v R [2012] NSWCCA 9; 259 FLR 262
- R v Fletcher [2005] NSWCCA 338; 156 A Crim R 308
- R v PWD [2010] NSWCCA 209; 205 A Crim R 75
- R v Zhang [2005] NSWCCA 437; 158 A Crim R 504
- Rasic v R [2009] NSWCCA 202
- Prasad v R (1979) 23