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District Court 25 September 2020

Belan v R

[2020] NSWDC 715

Fraud & dishonesty
CRIMINAL APPEAL AGAINST CONVICTION DUPLICITY CREDIBILITY AND DEMEANOUR

Citation: Belan v R [2020] NSWDC 715
Court: District Court of New South Wales
Date: 25 September 2020
Judge: King SC DCJ

Background

The appellant was a former official of the National Union of Workers (NUW). He faced 64 charges in the Local Court, the majority being counts of dishonestly obtaining a financial advantage or causing a financial disadvantage to the NUW by deception, contrary to s 192E(1)(b) of the Crimes Act 1900. One count charged him with participating in a criminal group by directing its activities, contrary to s 93T(1A) of the same Act. The alleged offending spanned October 2010 to November 2016, with the total financial advantage or disadvantage originally quantified at approximately $650,849.

The matter was heard over eight days before a Local Court Magistrate, with 22 prosecution witnesses, 100 exhibits, and the appellant giving evidence in his own defence. The Magistrate convicted the appellant on the charges that proceeded to judgment. The appellant appealed to the District Court, which conducted a rehearing on the certified transcript and all original exhibits under s 18(1) of the Crimes (Appeal and Review) Act 2001.

On appeal, the prosecution itself identified that the evidence did not support a conviction on Sequence 64 and recalculated the total financial advantage or disadvantage as $585,413.11.

  • Whether a number of the charges (Sequences 1, 2, 5, 8, 12, 13, 18, 40 and 41) were bad for latent duplicity, meaning each charge improperly encompassed more than one offence.
  • Whether the prosecution had proved the elements of each fraud charge beyond reasonable doubt, including deception, dishonesty, and the obtaining of a financial advantage or causing of a financial disadvantage.
  • Whether the prosecution had proved the elements of the criminal group participation charge beyond reasonable doubt.
  • Whether the convictions on certain sequences should be quashed for want of sufficient evidence.
  • What weight to give to the Magistrate's credibility and demeanour findings, given the rehearing was conducted on the transcript rather than in person.

Decision

The District Court conducted a full rehearing on the transcript and exhibits, forming its own view of the facts before considering the Magistrate's reasons. Both parties agreed the District Court should have regard to the Magistrate's reasons only to the extent they reflected observations about the credibility and demeanour of witnesses, given the Magistrate had seen and heard those witnesses directly.

On the duplicity argument, the Court considered the relevant sequences individually. On the fraud charges generally, the Court found the prosecution had proved the elements of each offence beyond reasonable doubt across the overwhelming majority of counts, accepting the prosecution's evidence as convincing and rejecting the appellant's evidence entirely on grounds of credibility.

The Court quashed the conviction on Sequence 46, finding the prosecution had not proved the elements to the required standard. The Court also quashed the conviction on Sequence 64, accepting the prosecution's own concession that the evidence was insufficient to support a guilty verdict.

Convictions on all remaining sequences were upheld. The appellant's evidence in his own defence was given no weight, the Court finding he had no credibility as a witness.

Orders Made

• Quash the conviction in respect of Sequence 46
• Quash the conviction in respect of Sequence 64

Key Takeaways

  • The District Court confirmed that on a conviction appeal under s 18(1) of the Crimes (Appeal and Review) Act 2001, the appeal proceeds as a rehearing on the certified transcript and is not a fresh trial (de novo). The appellate judge must form an independent view of the facts while recognising the Magistrate's advantage in observing witnesses.
  • Although the Magistrate's reasons do not form part of the certified transcript, the District Court held those reasons could not be wholly excluded from the appellate process. Reference to them was appropriate at least for the purpose of drawing on credibility and demeanour findings.
  • Where the prosecution itself identifies insufficient evidence supporting a count on appeal, the appellate court may quash that conviction. Here two convictions (Sequences 46 and 64) were quashed on that basis.
  • A defendant who gives evidence in their own defence and is found to have no credibility gains no forensic benefit from that evidence, even when the charges are numerous and the documentary record voluminous.
  • Under s 192E(1)(b) of the Crimes Act 1900, dishonesty is assessed against the standards of ordinary people and must be known by the defendant to be dishonest by those same standards, per the definition in s 4B of the Act.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 192B, 192D, 192E(1)(b), 93T(1A), 4B
- Crimes (Appeal and Review) Act 2001 (NSW), s 18(1)
- Interpretation Act 1987 (NSW)

Cases
- R v SKL; R v JY; R v XGL [2019] NSWCCA 43