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Court of Criminal Appeal 24 September 2015

R v Hiba CORNELL

[2015] NSWCCA 258

Fraud & dishonesty
CRIMINAL LAW APPEAL AGAINST CONVICTION AND SENTENCE APPELLANT WAS A BANK OFFICER CONVICTION APPEAL NO REFERENCE TO TENDENCY EVIDENCE TRIAL RULING

Citation: R v Hiba Cornell [2015] NSWCCA 258
Court: Court of Criminal Appeal, New South Wales
Date: 24 September 2015
Judge(s): Hoeben CJ at CL, Johnson J, Beech-Jones J (judgment delivered by Beech-Jones J)

Background

The appellant was a lending officer employed by St George Bank Ltd at its Chester Hill branch. The Crown alleged that in June 2006 she participated in a fraudulent scheme to extract a home loan of $460,000 ostensibly in favour of a borrower (whose identity was suppressed at trial) but ultimately for the benefit of the alleged scheme organiser. The scheme involved submitting bogus payslips and an employment letter in support of the loan application. The property being purchased had been bought by the vendor only weeks earlier for $140,000 and was being on-sold for $582,000, a grossly inflated price.

The appellant was charged with two offences under the former Crimes Act 1900: using a false instrument (two payslips) knowing them to be false, with intent to induce the bank to approve the loan (former s 301(2)); and making a false entry on the bank's computer system recording that she had verified the applicant's employment details, knowing that entry to be false or misleading (former s 178BB). She pleaded not guilty to both counts. After trial in the District Court, the jury returned verdicts of guilty on both counts on 10 April 2014.

The appellant was sentenced to five years' imprisonment on count 1, comprising a non-parole period of two years and a balance of term of three years. The 18-month fixed term on count 2 was wholly subsumed within that sentence. She appealed against both conviction and sentence.

  • Whether a deviation between the trial judge's pre-trial ruling (which distinguished between tendency evidence and coincidence evidence relating to six other loan applications the appellant had processed) and the Crown's closing address and summing-up (which treated all that evidence as coincidence evidence) occasioned a miscarriage of justice or a wrong decision on a question of law under s 6(1) of the Criminal Appeal Act 1912.
  • Whether the evidence concerning the other home loan applications was in fact properly admissible for coincidence purposes.
  • Whether the verdicts were unreasonable or could not be supported having regard to the evidence, under s 6(1) of the Criminal Appeal Act 1912.
  • Whether the sentencing judge erred in assessing the appellant's level of involvement in the fraudulent scheme by reference to her involvement in other fraudulent loan applications.
  • Whether the sentencing judge erred in failing to reduce the head sentence, having already reduced the non-parole period on the basis that the appellant's incarceration constituted exceptional circumstances due to the hardship occasioned to her daughter.

Decision

Conviction appeal: deviation from the pre-trial ruling

Before empanelment, the trial judge had ruled that evidence relating to other loan applications processed by the appellant was admissible partly as tendency evidence and partly as coincidence evidence. During the trial, however, the Crown addressed the jury as though all of that evidence was admissible only for coincidence purposes, making no reference to tendency. The trial judge's summing-up followed the Crown's approach rather than the pre-trial ruling. Critically, defence counsel raised no objection at trial and, on the Court of Criminal Appeal's analysis, embraced the departure from the pre-trial ruling. The Court held that no unfairness resulted from the deviation and therefore no miscarriage of justice was established.

The Court also held that the departure did not constitute a wrong decision on any question of law within s 6(1) of the Criminal Appeal Act 1912. Pre-trial rulings under s 192A of the Evidence Act 1995 are advisory in nature; they do not irrevocably bind the trial judge. The Court further found that the evidence of the other loan applications was properly admissible for coincidence purposes in any event, satisfying the requirements of s 98(1) of the Evidence Act 1995.

Conviction appeal: unreasonable verdict

The Court rejected the contention that the verdicts were unreasonable or unsupported by the evidence. Without the coincidence evidence, the Crown case was described as strong. With the coincidence evidence properly admitted, the Crown case was overwhelming. No basis to interfere with the verdicts was established.

Sentence appeal

The Court found no error in the sentencing judge's assessment of the appellant's level of involvement. The sentencing judge was entitled to regard the appellant as more culpable than a co-offender, given what the evidence of the other loan applications revealed about the appellant's role. On the question of the head sentence, the Court accepted that the hardship to the appellant's daughter constituted exceptional circumstances warranting a substantial reduction in the non-parole period. However, the sentencing judge's decision not to also reduce the head sentence on that basis was not shown to involve error of the kind described in House v R (1936) 55 CLR 499. The Court reasoned that in most cases, including this one, the hardship to family members caused by the offender's imprisonment dissipates upon their release on parole, making the non-parole period the more appropriate vehicle for reflecting that consideration.

Orders Made

  • Leave to raise grounds 1, 2 and 3 of the conviction appeal was granted.
  • The appeal against conviction was dismissed.
  • Leave to appeal against sentence was granted.
  • The appeal against sentence was dismissed.

Key Takeaways

  • A pre-trial ruling on admissibility made under s 192A of the Evidence Act 1995 is advisory rather than binding. A trial judge is not irrevocably bound by such a ruling, and a deviation from it does not automatically constitute a wrong decision on a question of law for the purposes of s 6(1) of the Criminal Appeal Act 1912.
  • No miscarriage of justice arises from a departure from a pre-trial evidentiary ruling where defence counsel raises no objection at trial and effectively embraces the departure in their own closing address.
  • Evidence of an accused's involvement in a series of similar transactions can be properly admissible for coincidence purposes under s 98(1) of the Evidence Act 1995, even where a pre-trial ruling had characterised some of that evidence as going only to tendency.
  • Hardship to a third party that constitutes "exceptional circumstances" in sentencing is most appropriately reflected in a reduction to the non-parole period rather than the head sentence, particularly where the hardship will dissipate upon the offender's release on parole.
  • In dismissing the sentence appeal, the Court of Criminal Appeal confirmed that it will not interfere with a sentencing judge's discretionary balancing of aggravating and mitigating factors absent a demonstrated error of the kind identified in House v R.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), former ss 178BB and 301(2)
- Criminal Appeal Act 1912 (NSW), ss 5(1) and 6(1)
- Criminal Procedure Act 1986 (NSW), s 130A
- Evidence Act 1995 (NSW), ss 95, 97(1), 98(1) and 192A
- Statute Law (Miscellaneous Provisions) Act (No 2) 2014 (NSW)

Key Cases
- House v R [1936] HCA 40; 55 CLR 499
- Bugmy v The Queen [1990] HCA 18; 169 CLR 525
- Baini v The Queen [2012] HCA 59; 246 CLR 469
- Filippou v The Queen [2015] HCA 29
- Patel v The Queen [2012] HCA 29; 247 CLR 531
- Harriman v R [1989] HCA 50; 167 CLR 590
- DSJ v R; NS v R [2012] NSWCCA 9; 84 NSWLR 758
- Cheikho v Regina [2008] NSWCCA 191; 75 NSWLR 323
- R v Ford [2009] NSWCCA 306; 273 ALR 286
- El-Haddad v R [2015] NSWCCA 10
- Delaney v R; R v Delaney [2013] NSWCCA 150