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Court of Criminal Appeal 19 June 2015

Vella v R; Siskos v R

[2015] NSWCCA 148

Fraud & dishonesty
APPEAL: CONSPIRACY TO DEFRAUD INSURANCE COMPANY FIRST APPLICANT ULTIMATE BENEFICIARY SECOND APPLICANT DID NOT COMMIT SUICIDE NO SUBMISSIONS IN SUPPORT EVIDENCE OF AGREEMENT VERY STRONG

Citation: Vella v R; Siskos v R [2015] NSWCCA 148
Court: NSW Court of Criminal Appeal
Date: 19 June 2015
Judges: Gleeson JA, Hidden J, Beech-Jones J

Background

In July 2010, two co-accused obtained a life insurance policy worth approximately $1.72 million over the life of one of them (the male applicant), with the other (the female applicant) named as the ultimate beneficiary. The policy included a standard preclusion period of thirteen months, after which it would respond to a claim arising from suicide.

The Crown alleged that the two applicants conspired to defraud the insurer by obtaining the policy in bad faith: specifically, by concealing from the insurer that they had already agreed the insured would commit suicide after the preclusion period expired so the beneficiary could claim the proceeds. The male applicant later stopped attending work and lived at train stations in what witnesses described as preparation for suicide, but he did not go through with it.

Both applicants were tried before a jury in the District Court and convicted on 28 October 2013 of conspiring to defraud the insurer at common law. The female applicant received a sentence of six years and six months with a non-parole period of four years and three months. The male applicant received two years and six months with a non-parole period of fifteen months. Both applicants then sought to appeal their convictions and sentences.

  • Whether the verdicts against both applicants were unreasonable or unsupported by the evidence
  • Whether the trial judge was required to give specific directions to the jury about admissions in evidence and the fact that the insured was still alive
  • Whether trial counsel's failure to raise the good character of both applicants (in the form of lack of recent convictions) amounted to "flagrant incompetence"
  • Whether the trial judge erred in allowing the Crown to adduce additional evidence from an insurance underwriter without adequate notice to the defence
  • Whether the sentencing judge erred in assessing the objective seriousness of the offence, and whether the sentences imposed were manifestly excessive

Decision

Conviction appeals dismissed. The Court found the evidence of the agreement between the two applicants to be very strong. No submissions were advanced in support of the unreasonable verdict ground by the male applicant, and the Court found nothing to disturb the jury's findings. The female applicant's contingent ground (asserting unreasonable verdict only if the male applicant's conviction was set aside) could not succeed once his appeal was dismissed. Even reading that ground more broadly as an independent challenge, the Court was satisfied the evidence supported the verdict.

No error in trial directions. The applicants complained that the trial judge failed to give specific jury directions about admissions and the significance of the insured remaining alive. The Court noted that no such directions had been sought at trial, that Criminal Appeal Rule 4 applied (which generally prevents raising on appeal a matter not raised below without leave), and that no such directions were required in the circumstances.

Good character argument rejected. Both applicants argued their trial counsel was "flagrantly incompetent" in not raising their lack of recent convictions as good character evidence. The Court received evidence from trial counsel and found there were identifiable forensic reasons for that decision: the material before the Court suggested that had character evidence been raised, the Crown may have been able to rebut it. No error was established.

Additional evidence from underwriter. The Crown sought to call an insurance underwriter at trial to address whether coverage would have been offered had the insurer known of the applicants' intention. The applicants argued this was opinion evidence adduced without adequate notice. The Court disagreed, finding the evidence was not properly characterised as opinion evidence under the Evidence Act 1995, and that the trial judge made no error in permitting it. On sentence, the Court found no error in the sentencing judge's assessment of objective seriousness. The duration of the conspiracy, the degree of planning, the motivation of greed, and the extraordinary nature of the scheme (involving one co-conspirator persuading the other to take their own life) all supported a serious assessment. The difference in the sentences imposed on the two applicants reflected the sentencing judge's recognition of their differing roles.

Orders Made

Esther Vella:
- Extension of time granted to appeal conviction and seek leave to appeal sentence, up to and including 3 February 2015
- Leave granted to raise grounds 5, 6 and 7 of the conviction appeal
- Leave to raise grounds 1 and 4 of the conviction appeal refused
- Appeal against conviction dismissed
- Leave to appeal against sentence granted
- Appeal against sentence dismissed

Peter Siskos:
- Extension of time granted to appeal conviction, up to and including 21 April 2015
- Leave granted to raise grounds 2 and 3 of the conviction appeal
- Leave to raise ground 1 of the conviction appeal refused
- Appeal against conviction dismissed
- Leave to appeal against sentence granted
- Appeal against sentence dismissed

Key Takeaways

  • The fraud in a conspiracy to defraud an insurer can lie in the obtaining of the policy itself, not only in the making of a subsequent claim: concealing a pre-existing agreement to trigger the insured event (here, planned suicide) was sufficient to constitute the dishonest means required.
  • A conviction ground asserting unreasonable verdict that is expressed contingently on a co-accused's appeal succeeding cannot be maintained once that co-accused's appeal is dismissed.
  • Where trial counsel had identifiable forensic reasons for not leading good character evidence (including a real risk that the Crown could rebut it), that forensic choice does not amount to flagrant incompetence sufficient to ground a conviction appeal.
  • Additional evidence called by the Crown at trial is not automatically characterised as opinion evidence simply because it comes from an expert witness: the Court of Criminal Appeal confirmed that correct categorisation of evidence under the Evidence Act 1995 governs whether notice requirements are engaged.
  • In sentencing for conspiracy to defraud, a sentencing court is entitled to weigh the full scope and duration of the conspiracy, the degree of planning, and the roles of individual co-conspirators, and different sentences for co-offenders do not of themselves indicate error.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 192E(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44(2)
- Criminal Appeal Act 1912 (NSW), ss 5, 6, 10
- Criminal Appeal Rules, rr 3A, 23C
- Criminal Code 1995 (Cth), s 130
- Criminal Procedure Act 1986 (NSW), s 146
- Evidence Act 1995 (NSW), s 79

Key Cases:
- Peters v R [1998] HCA 7; 192 CLR 493
- Agius v R [2013] HCA 27; 248 CLR 601
- Ahern v R [1988] HCA 39; 165 CLR 87
- M v R [1994] HCA 63; 181 CLR 487
- MFA v R [2002] HCA 53; 213 CLR 606
- Nudd v R [2006] HCA 9, 80 ALJR 614
- Markarian v R [2005] HCA 25; 228 CLR 357
- House v R [1936] HCA 40; 55 CLR 499
- R v Ghosh [1982] QB 1053
- Morris v R [1987] HCA 50; 163 CLR 454
- Matthews v R [2013] NSWCCA 187