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Court of Criminal Appeal 21 June 2017

Hill v R

[2017] NSWCCA 136

Fraud & dishonesty
CRIMINAL LAW APPEAL PRACTICE AND PROCEDURE AMENDMENT OF INDICTMENT WHETHER TRIAL JUDGE ERRED IN DOING SO APPEAL

Citation: Hill v R [2017] NSWCCA 136
Court: Court of Criminal Appeal, New South Wales
Date: 21 June 2017
Judge(s): Hoeben CJ at CL, Johnson J, Bellew J (majority judgment by Bellew J; other judges agreeing)

Background

The appellant was convicted in the District Court on six counts of fraudulent misappropriation of money contrary to s 178A of the Crimes Act 1900 (NSW), a provision since repealed. The charges arose from his receipt of funds totalling hundreds of thousands of dollars from various investors and superannuation funds between 2006 and 2007, on terms requiring that money to be applied as "seed capital" in Queensland house and land packages. He instead misappropriated some or all of those funds for other purposes.

The appellant was sentenced to a total term of imprisonment of 2 years and 9 months, with a non-parole period of 1 year and 6 months. Notably, approximately 10 years elapsed between the commission of the offences and the trial, a gap the appellant relied upon in challenging his sentence.

The appellant appealed against his convictions on 16 grounds and also sought leave to appeal against the sentence. He additionally applied for release pending the outcome of his appeal. The Court refused all three applications.

  • Whether the trial judge erred in permitting the Crown to amend one count in the indictment by substituting the name of an individual investor with the name of a superannuation fund
  • Whether the charges, as pleaded, disclosed a known offence at law, given that the terms described required the money to be applied towards "seed capital" rather than paid to a specific person
  • Whether a so-called "Murray direction" (a warning about using evidence across multiple counts) was required in the circumstances
  • Whether the trial judge erred by failing to give a tendency evidence direction, where no tendency notice had been served and the Crown had not relied on tendency evidence
  • Whether various alleged errors in the trial judge's summing-up warranted appellate intervention, noting that trial counsel raised no objection at the time despite being given the opportunity to do so
  • Whether the verdicts on particular counts were unsafe and unsatisfactory
  • Whether the sentencing judge gave appropriate weight to the 10-year delay between the offences and the trial

Decision

Indictment amendment: The Court found no error in allowing the Crown to amend count 4 by substituting the name of a superannuation fund for that of the individual investor originally named. The amendment did not cause unfair prejudice to the appellant.

Known offence and pleading: The Court rejected the argument that the counts failed to disclose an offence known to law. It was not an element of the offence under s 178A that the money be received on terms requiring payment to a particular identified person. Pleading the terms as requiring application towards "seed capital" in Queensland house and land packages was sufficient.

Murray direction and tendency evidence: The Court concluded that no Murray direction was required on the facts of this case. As to tendency evidence, the Crown had not served a tendency notice and had not sought to rely on tendency evidence. The trial judge was correct not to give a tendency direction, and no error arose from the failure to do so.

Rule 4 and summing-up grounds: Many of the appellant's 16 grounds sought to agitate issues not raised at trial. The Court applied rule 4 of the Criminal Appeal Rules, which requires leave to raise such matters on appeal where no objection was taken at trial. Trial counsel had been given a specific opportunity to seek further directions and did not do so. Leave was refused on these grounds.

Unsafe verdicts: The Court found that the evidence was sufficient to support the verdicts. The jury was entitled to be satisfied beyond reasonable doubt on each of the counts of which the appellant was convicted.

Sentencing and delay: The Court confirmed that delay can be a mitigating factor in sentencing, particularly where it has caused an offender significant stress or left them in a state of uncertain suspense. However, the onus lies on the offender to establish those effects, and the appellant gave no evidence on sentence. The sentencing judge had expressly acknowledged the delay and taken it into account. The Court also noted that applying a specific, discrete percentage discount for delay would itself have been erroneous, citing Chung v R [2017] NSWCCA 48. Leave to appeal against sentence was refused.

Orders Made

  • The appeal against conviction is dismissed.
  • Leave to appeal against sentence is refused.

Key Takeaways

  • Under s 178A of the Crimes Act 1900 (NSW), it was not an element of fraudulent misappropriation that money be received on terms requiring payment to a specific identified person. A description of the terms by reference to the purpose of the payment was sufficient to disclose a known offence.
  • Where trial counsel is given a specific opportunity to seek further directions from a trial judge and declines to do so, rule 4 of the Criminal Appeal Rules operates to require leave before those omitted directions can be raised as grounds on appeal. The Court of Criminal Appeal confirmed that counsel carries a duty to address issues as they arise at trial.
  • Delay between offending and sentencing is capable of being a mitigating factor, but the burden rests on the offender to establish its specific effects through evidence. An appellant who gives no evidence on sentence faces a significant obstacle in asserting that delay caused particular harm.
  • Refusing bail pending appeal, the Court of Criminal Appeal found that none of the 16 grounds of appeal were "more than arguable" or "likely to succeed," and the appellant therefore failed to establish the special or exceptional circumstances required under s 22(1)(a) of the Bail Act 2013 (NSW).
  • In dismissing the sentence appeal, the Court confirmed that applying a specific and discrete percentage discount to reflect delay would be an erroneous approach to sentencing, consistent with the Court's earlier decision in Chung v R [2017] NSWCCA 48.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 178A (repealed)
- Criminal Appeal Act 1912 (NSW)
- Criminal Appeal Rules (NSW), rule 4
- Criminal Procedure Act 1986 (NSW)
- Evidence Act 1995 (NSW)
- Bail Act 2013 (NSW), s 22(1)(a)

Cases:
- R v Murray (1987) 11 NSWLR 12
- Chung v R [2017] NSWCCA 48
- Obeid v R [2016] NSWCCA 321
- Giourtalias v R [2013] NSWCCA 216
- Andrews v R (1968) 126 CLR 198
- Domican v R (1992) 173 CLR 555
- R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308
- Papakosmas v R (1999) 196 CLR 297
- R v Soma (2003) 212 CLR 299
- Cleland v R (1982) 151 CLR 1
- Aravena v R (2015) 91 NSWLR 258
- Germakian v R (2007) 70 NSWLR 467
- R v Apostilides (1984) 154 CLR 563
- Greenhalgh v R [2017] NSWCCA 94