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14
Court of Criminal Appeal 25 September 2013

GIOURTALIS, Angelos v R

[2013] NSWCCA 216

Fraud & dishonesty
CRIMINAL LAW APPEAL APPEAL APPEAL APPEAL SENTENCING

Citation: GIOURTALIS, Angelos v R [2013] NSWCCA 216
Court: NSW Court of Criminal Appeal
Date: 25 September 2013
Judge(s): Bathurst CJ, Hidden J, Button J

Background

The appellant was an accountant who operated through a company at Brighton Le Sands. He was not a registered tax agent and could not himself electronically lodge income tax returns. His clients were predominantly unsophisticated members of the Greek community who sought his assistance with financial affairs.

The prosecution alleged that the appellant collected personal and financial information from clients, caused false tax returns to be prepared using fabricated group certificates and profit-and-loss statements, and arranged for those returns to be lodged electronically through a registered tax agent. Refunds received from the Australian Taxation Office were deposited into accounts he controlled. In none of the charged cases did the relevant client receive the full refund.

The appellant was convicted after trial of 49 counts of defrauding the Commonwealth and 8 counts of attempting to do so, under ss 29D and 7 of the Crimes Act 1914 (Cth). He was sentenced to an effective term of nine years with a non-parole period of six years and three months. He appealed both his conviction and his sentence.

  • Whether the trial judge misdirected the jury on the defence of honest and reasonable mistake
  • Whether the trial judge misdirected the jury on the rule in Browne v Dunn (which requires a party to put inconsistent evidence to a witness before calling contradicting testimony)
  • Whether the trial judge misdirected the jury on the tax obligations of foreign residents
  • Whether tendency and coincidence evidence was wrongly admitted, causing prejudice
  • Whether, even if errors were established, the statutory proviso in s 6(1) of the Criminal Appeal Act 1912 applied to preserve the convictions (that is, whether no substantial miscarriage of justice actually occurred)
  • Whether the sentencing judge gave insufficient weight to delay in bringing the prosecution
  • Whether the overall sentence was manifestly excessive

Decision

Conviction appeal: errors established but proviso applied

The Court found that grounds 1 and 2 were made out. The trial judge's direction on honest and reasonable mistake was erroneous, and the direction on Browne v Dunn was also flawed. The misdirection on foreign residents' tax obligations (ground 3) was also established. Hidden J described the misdirection on mistake as "indeed serious."

Despite these errors, the Court applied the proviso under s 6(1) of the Criminal Appeal Act 1912. That section permits a conviction to stand notwithstanding a legal error if no substantial miscarriage of justice actually occurred. Bathurst CJ conducted a detailed count-by-count analysis of the evidence against the appellant across all 57 counts. He concluded that the evidence on each count under challenge was compelling and that the jury would inevitably have reached the same verdicts even absent the misdirections. Hidden J agreed, observing that mistake did not loom large in the overall case and that the prosecution evidence was strong throughout.

Tendency and coincidence evidence

The Court found no error warranting a new trial on ground 4 concerning the admission of tendency and coincidence evidence. This ground did not succeed.

Sentence appeal

The Court granted leave to appeal against sentence but dismissed the appeal. On the question of delay, Bathurst CJ noted that the investigation was complex, involving numerous clients, false documents, and entities that had been wound up and deregistered. The delay was not characterised as inordinate or unconscionable in those circumstances. The Court also observed that the appellant had declined to cooperate with investigators and that, far from demonstrating rehabilitation during the delay period, he had been convicted in 2006 of a separate offence of obtaining a financial advantage by deception arising from conduct in 2002. No error was found in the sentencing judge's approach.

Orders Made

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

Key Takeaways

  • In dismissing the conviction appeal, the Court of Criminal Appeal confirmed that even serious misdirections at trial will not necessarily produce a new trial if the proviso applies: where the evidence on each count is compelling and the jury would inevitably have convicted, no substantial miscarriage of justice is taken to have occurred.
  • A finding that multiple grounds of appeal were made out did not preclude application of the proviso, provided the errors did not go to the fundamental fairness of the trial in a way that rendered the proviso unavailable.
  • Under s 6(1) of the Criminal Appeal Act 1912, the proviso requires the appellate court to assess the evidence count by count, and here the Court undertook an extensive review across all charged counts before reaching its conclusion.
  • Delay in prosecution will not automatically attract greater mitigation in sentencing where the investigation was objectively complex, the accused declined to cooperate, and the accused's conduct during the delay period did not reflect rehabilitation.
  • A prior conviction for a similar type of offence committed during the period of delay is a relevant consideration that weighs against treating delay as a significant mitigating factor.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), ss 7, 29D
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Evidence Act 1995 (NSW), ss 97, 101
- Income Tax Assessment Act 1997 (Cth), s 6-5
- Criminal Procedure Act 1986 (NSW), s 33
- Corporations Act 2001 (Cth), ss 232, 998
- Bankruptcy Act 1966 (Cth), Pt X
- Misuse of Drugs Act 1981 (WA)

Cases
- Browne v Dunn (1893) 6 R 67
- AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438
- Andrews v The Queen [1968] HCA 84; (1968) 126 CLR 198
- Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; (2012) 246 CLR 92
- Bangaru v The Queen [2012] NSWCCA 204; (2012) 297 ALR 108
- Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358
- Darkan v The Queen [2006] HCA 34; (2006) 227 CLR 373
- Dao v The Queen [2011] NSWCCA 63; (2011) 81 NSWLR 568
- DSJ v The Queen [2012] NSWCCA 9; (2012) 259 FLR 262
- Evans v The Queen [2007] HCA 59; (2007) 235 CLR 521
- Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593
- Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250
- Gassy v The Queen [2008] HCA 18; (2008) 236 CLR 293
- Glennon v The Queen [1994] HCA 7; (1994) 179 CLR 1
- Handlen v The Queen [2011] HCA 51; (2011) 245 CLR 282
- Homsi v R [2011] NSWCCA 164
- House v The King [1936] HCA 40; (1936) 55 CLR 499
- Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886; (2000) 106 FCR 51
- Khamis v The Queen [2010] NSWCCA 179; (2010) 203 A Crim R 121
- Krakouer v The Queen [1998] HCA 43; (1998) 194 CLR 202