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Court of Criminal Appeal 23 November 2015

El-Hilli v R; Melville v R

[2015] NSWCCA 289

Fraud & dishonesty
CRIMINAL LAW CONVICTION APPEAL JUDGE ONLY TRIAL NO OMISSION ESTABLISHED SENTENCE APPEAL WHETHER MISCARRIAGE OF JUSTICE

Citation: El-Hilli v R; Melville v R [2015] NSWCCA 289
Court: NSW Court of Criminal Appeal
Date: 23 November 2015
Judges: Basten JA at [1]; Hall J at [112]; Wilson J at [113]

Background

Two co-accused, a male appellant and a female appellant, were convicted in the District Court on two counts each of obtaining a financial advantage by deception under s 178BA(1) of the Crimes Act 1900 (NSW). The trial was conducted before North DCJ sitting without a jury. Both accused appeared unrepresented at trial and again before the Court of Criminal Appeal.

The offending arose from a scheme operating between August and November 2008. The male appellant presented himself as having access to capital from a wealthy sheikh that could be made available as loans to business people in financial difficulty. The female appellant acted as his agent, negotiating loan arrangements with prospective borrowers and collecting substantial upfront fees. After the fees were paid, both appellants left Australia. No loan funds were ever provided, and no fees were refunded.

The District Court sentenced the female appellant to an effective term of two years and three months imprisonment with a non-parole period of one year and three months. The male appellant received an effective five-year term with a non-parole period of four years and two months. Both sought leave to appeal against their convictions and sentences.

  • Whether the trial judge was obliged to inform the unrepresented accused of their right to seek an adjournment to arrange legal representation, and whether any failure to do so caused a miscarriage of justice.
  • Whether the trial judge erred by not ruling on the admissibility of tendency and coincidence evidence before trial commenced.
  • Whether evidence of the male appellant's 2003 prior conviction was properly admitted and used as tendency or coincidence evidence, or as evidence of state of mind, and whether that use prejudiced the female appellant.
  • Whether incomplete copies of contracts were wrongly admitted into evidence, and whether any inference drawn from missing pages constituted a miscarriage of justice.
  • Whether the sentencing judge erred by failing to backdate the sentence to account for a lengthy prior period of conditional liberty.
  • Whether the sentencing judge failed to give proper consideration to the impact of full-term imprisonment on the female appellant's child, and whether circumstances were exceptional within the meaning of the relevant sentencing provisions.

Decision

Legal representation (Ground 1). The Court found no omission by the trial judge. The appellants had already applied for legal aid, appealed its refusal, and then informed the District Court they would proceed unrepresented. Where an accused arrives at trial having already gone through that process, the obligation on a judge to advise them of the possibility of seeking an adjournment does not arise in the same way. Even if such an obligation existed, the Court noted that any failure must also have resulted in a miscarriage of justice to warrant setting aside the conviction, and no such miscarriage was established on the facts.

Tendency, coincidence evidence, and prior convictions (Grounds 2 and 3). This was the central and most arguable issue. The male appellant's 2003 convictions for similar conduct were admitted and used by the trial judge. The Court considered whether that evidence was deployed for tendency or coincidence reasoning and whether the timing of the ruling, which emerged in the final judgment rather than as a pre-trial ruling, caused prejudice. The Court granted leave to challenge convictions on these grounds but ultimately dismissed the appeal, finding no error of principle or miscarriage of justice on the material before it.

Incomplete contract documents (Ground 5). Leave was granted to the female appellant to challenge the admission of incomplete contract copies. The Court examined whether the trial judge had drawn permissible inferences about the content of missing pages. It dismissed the appeal on this ground, finding no miscarriage of justice was demonstrated.

Sentence appeals. The female appellant was granted leave to appeal against sentence but her appeal was dismissed. The Court did not find that the sentencing judge had failed to account for the impact of imprisonment on her child or that exceptional circumstances existed that would have required a different sentencing approach. The male appellant was refused leave to appeal against sentence.

Orders Made

Mr El-Hilli:
- Leave granted to challenge convictions on grounds (2) and (3) of his final submissions; leave to appeal otherwise refused.
- Appeal on those grounds dismissed.
- Leave to appeal against sentence refused.

Ms Melville:
- Leave granted to appeal against conviction on grounds (3) and (5) of her final submissions; leave to appeal otherwise refused.
- Appeal on those grounds dismissed.
- Leave to appeal against sentence granted.
- Appeal against sentence dismissed, with effect from 15 March 2016.

Key Takeaways

  • A self-represented accused who has already exhausted legal aid avenues and requested a trial date on a self-represented basis does not automatically establish a ground of appeal by asserting the trial judge failed to advise them of a right to seek an adjournment for representation. A miscarriage of justice must also be shown.

  • Where tendency or coincidence evidence emerges through the reasoning in a final judgment rather than by way of a formal pre-trial ruling, the timing alone does not automatically constitute an error. The Court examined whether actual prejudice resulted before determining whether any ground of appeal was made out.

  • Incomplete documentary evidence may be admitted where a court draws permissible inferences about missing content, but the correctness of those inferences remains a ground on which leave to appeal may be granted for further scrutiny.

  • In sentencing for serious fraud offences, the impact of imprisonment on a co-offender's child does not automatically generate exceptional circumstances sufficient to alter the sentencing outcome. The sentencing court must consider the issue, but its weight is a matter for the exercise of sentencing discretion.

  • No question of principle was raised by any of the successful leave grounds in this appeal, and the Court's dismissal of all grounds signals that the factual and evidentiary findings at trial were well within the range of permissible judicial reasoning.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 178BA
- Crimes Act 1914 (Cth), s 16A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44, 50
- Criminal Appeal Act 1912 (NSW), ss 5, 5F
- Criminal Procedure Act 1986 (NSW), ss 137, 142
- Evidence Act 1995 (NSW), ss 55, 56, 57, 95, 97, 98, 101, 137

Cases:
- Dietrich v The Queen (1992) 177 CLR 292
- Dipangkear v Regina [2010] NSWCCA 156
- Elomar v R [2014] NSWCCA 303
- Gassy v The Queen (2008) 236 CLR 293; [2008] HCA 18
- R v Adamson [2005] NSWCCA 7
- R v Edwards (1996) 90 A Crim R 510
- R v Shamouil (2006) 66 NSWLR 228; [2006] NSWCA 154
- R v Steffan (1993) 30 NSWLR 633
- R v Togias [2001] NSWCCA 522; 127 A Crim R 23
- White v Johnston [2015] NSWCA 18
- The Queen v Wirth (1976) 14 SASR 291