AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
2
Court of Criminal Appeal 9 November 2016

Younan v R

[2016] NSWCCA 248

Fraud & dishonestyPublic order & justice offences
CRIMINAL LAW APPEAL AGAINST CONVICTION APPEAL AGAINST CONVICTION SUBSTANTIAL MISCARRIAGE OF JUSTICE APPEAL AGAINST SENTENCE WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Younan v R [2016] NSWCCA 248
Court: Court of Criminal Appeal, NSW
Date: 9 November 2016
Judge(s): Beazley P; R A Hulme J; R S Hulme AJ

Background

The appellant was convicted by a jury of one count of dealing with proceeds of crime contrary to s 400.4(1) of the Criminal Code (Cth), carrying a maximum penalty of 20 years imprisonment. The Crown's case was that the appellant had directed an accountant, with whom he was in an intimate relationship, to fraudulently submit false business activity statements to the Australian Taxation Office (ATO), claiming GST refunds in the names of fictitious entities. Over the period from June 2006 to September 2007, a total of $322,600 was transferred into the appellant's bank accounts from those fraudulently obtained refunds.

At trial, the accountant gave evidence as the principal Crown witness. During her testimony, she made statements suggesting the appellant had threatened her and her family, and had made remarks about kidnapping a former partner. These remarks prompted two applications by defence counsel for the discharge of the jury, both of which the trial judge refused.

The appellant was sentenced to six years imprisonment with a four-year non-parole period, and was ordered to pay reparation of $322,600. He appealed against both conviction and sentence.

  • Whether the trial judge erred in refusing to discharge the jury following prejudicial remarks made by the Crown witness
  • Whether the conduct of the Crown's case resulted in a substantial miscarriage of justice, denying the appellant a fair trial
  • Whether trial counsel's performance was so incompetent as to constitute a miscarriage of justice
  • Whether the appellant had been unduly pressured into signing a statement of agreed facts
  • Whether the sentence imposed was manifestly excessive

Decision

Jury discharge. The Court confirmed that on appeal from a refusal to discharge a jury, the appellate court must determine for itself whether that refusal resulted in a substantial miscarriage of justice. The trial judge's incidental reference to the expense of a discharge was not an error, as it was only one of several considerations. The Court found no error in the trial judge's conclusion that the witness's prejudicial remarks could be adequately addressed through appropriate directions to the jury.

Conduct of the Crown's case. The Court examined each of the appellant's specific complaints in turn: that the Crown adduced inadmissible or prejudicial evidence, engaged in repetitive questioning, used leading questions improperly, and conflated the offences of the appellant with those of the accountant. Each complaint was rejected. The prosecution was found to have been conducted properly, and the evidence of the accountant regarding her own conviction for related offences was held to be neither misleading nor unfair. Taken together, these findings meant the appellant had not established a miscarriage of justice.

Incompetence of counsel. The Court acknowledged that flagrant incompetence of trial counsel can, in some circumstances, give rise to a miscarriage of justice. However, it found that trial counsel had been alive to the issues at trial and had competently represented the appellant. This ground was not upheld.

Agreed facts and sentence. The Court rejected the claim of undue pressure over the agreed facts, noting both the appellant and trial counsel had signed the document, the facts were supported by documentary evidence, and they were consistent with the appellant's own trial evidence. On sentence, the Court found the trial judge had not erred in his treatment of the appellant's age, as immaturity was not raised as a significant factor in the offending. However, the language used by the trial judge when finding "special circumstances" (a term used when adjusting the standard ratio between head sentence and non-parole period) disclosed an error in that finding. That error required the Court of Criminal Appeal to re-exercise the sentencing discretion afresh. Despite identifying the error, the Court ultimately dismissed the sentence appeal.

Orders Made

  • Appeal against conviction dismissed
  • Leave to appeal against sentence granted
  • Appeal against sentence dismissed

Key Takeaways

  • On a jury discharge application, an appellate court independently determines whether the refusal to discharge resulted in a substantial miscarriage of justice, rather than merely reviewing whether the trial judge's decision was unreasonable.
  • A trial judge's reference to the cost of discharging a jury is not an error if mentioned as one consideration among several, rather than as a determinative factor.
  • Flagrant incompetence of trial counsel can ground a miscarriage of justice claim, but the threshold is high. Evidence of counsel being alert to the trial issues and acting on instructions will generally defeat the ground.
  • Where an appellant signs a statement of agreed facts supported by documentary evidence and consistent with their own evidence, the Court will require compelling proof of pressure or misunderstanding before intervening.
  • An error in the reasoning behind a special circumstances finding triggers the Court of Criminal Appeal's obligation to re-sentence afresh under s 6(3) of the Criminal Appeal Act 1912 (NSW), even where the ultimate sentence imposed may not change.

Legislation and Cases Referenced

Legislation:
- Criminal Code (Cth), s 400.4(1)
- Crimes Act 1914 (Cth), s 16A
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Evidence Act 1995 (NSW)
- Judiciary Act 1903 (Cth)
- Criminal Appeal Rules (NSW)

Cases:
- Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22
- Nudd v The Queen (2006) 80 ALJR 614; [2006] HCA 9
- Bugmy v The Queen (1990) 169 CLR 525; [1990] HCA 18
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- R v Birks (1990) 19 NSWLR 677
- R v Simpson (2001) 53 NSWLR 702; [2001] NSWCCA 534
- R v Bartle [2003] NSWCCA 329
- Loury v R [2010] NSWCCA 158
- KT v R (2008) 182 A Crim R 571; [2008] NSWCCA 51
- MS2 v The Queen (2005) 158 A Crim R 93; [2005] NSWCCA 397
- R v Hearne (2001) 124 A Crim R 451; [2001] NSWCCA 37
- Miller v R [2015] NSWCCA 206
- Santo v R [2009] NSWCCA 269
- Qing An v R [2007] NSWCCA 53
- R v Ahola (No 6) [2013] NSWSC 703
- Flaherty v R; R v Flaherty [2016] NSWCCA 188