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Court of Criminal Appeal 19 November 2021

Carnaby v R

[2021] NSWCCA 275

Fraud & dishonesty

Citation: Carnaby v R [2021] NSWCCA 275
Court: NSW Court of Criminal Appeal
Date: 19 November 2021
Judges: McCallum JA, Davies J, Adamson J (reasons by Adamson J, others agreeing)

Background

The appellant was convicted by a jury in the District Court at Sydney on 18 counts of dishonestly obtaining a financial advantage by deception (fraud counts) and four counts of recruiting others to assist in criminal activity (recruitment counts), contrary to ss 192E(1)(b) and 351A(1) of the Crimes Act 1900 (NSW). Two further counts were dismissed by direction. The convictions arose from a scheme in which the appellant allegedly orchestrated fraudulent finance applications for luxury motor vehicles, using false documentation submitted to finance companies between early 2013 and early 2016. The total value of loans obtained was approximately $2.56 million, with losses to lenders of approximately $2.29 million.

The scheme involved the appellant approaching third parties, who applied for finance in the names of themselves or their companies. The principal dispute at trial was not whether the documentation was false (that was agreed) but whether the appellant was involved in producing or submitting the false documents and whether he acted dishonestly. Partway through the trial, the appellant withdrew his instructions to his legal representatives and proceeded to conduct his own defence.

Following conviction, the appellant sought leave to appeal on 14 grounds, covering alleged trial irregularities, evidentiary errors, the unreasonableness of the verdicts, and procedural complaints. He also applied for bail pending the appeal.

  • Whether the trial judge erred in refusing to vacate the trial or grant a further adjournment after the appellant dismissed his counsel, requiring him to self-represent
  • Whether witnesses who gave evidence under s 128 certificates (which provide a form of use immunity) amounted to condoned perjury
  • Whether the trial judge should have directed a verdict of not guilty on count 6
  • Whether the Crown breached its obligations by failing to call or make available material witnesses
  • Whether the trial judge erred in admitting certain exhibits (Exhibits M, N, X and bank statements) into evidence
  • Whether the trial judge erred in refusing to admit evidence of a co-offender's prior conviction for grievous bodily harm
  • Whether the guilty verdicts on each group of counts were unsafe, unreasonable or inconsistent with each other
  • Whether the jury's deliberation time was unreasonably short
  • Whether the appellant should be released on bail given the appeal was pending

Decision

The Court of Criminal Appeal dismissed all grounds of appeal and refused leave on one ground. On the adjournment ground, the court found it was open to the trial judge to refuse a further adjournment given the delays already experienced, the length of the trial to date, and the appellant's demonstrated capacity to conduct the proceedings himself. The transcript showed the trial judge had taken considerable care to ensure the appellant received a fair trial despite being unrepresented.

On the witness-related grounds, the court confirmed that the Crown's obligation to call or make witnesses available for cross-examination cannot apply to witnesses who cannot be located. Evidence of genuine attempts to locate missing witnesses had been adduced. The court also noted that no appeal lies against a verdict of not guilty (count 6 resulted in acquittal, so there was nothing to remedy on that ground), and that it is the jury's function to accept or reject witness evidence.

On the evidentiary challenges, the court held the trial judge was correct to exclude evidence of a co-offender's prior conviction for grievous bodily harm because the circumstances of that conviction were unknown, making its relevance and probative value uncertain. The agreed documents had been settled before trial counsel was dismissed, and the appellant was bound by the forensic choices made during his represented period. The admission of bank statements and other exhibits disclosed no appealable error.

On the verdicts, the court found no fundamental inconsistency in the evidence that ought to have caused the jury a reasonable doubt about the appellant's involvement. The verdicts were open to the jury on the evidence. As to the complaint that the jury deliberated for an unreasonably short time, the court found the period was neither unreasonably short nor indicative of a failure to discharge their function properly.

Orders Made

  • Application for release on bail: dismissed
  • Leave to appeal granted on all grounds except ground 4 (directed verdict on count 6)
  • Leave to appeal refused on ground 4
  • Appeal dismissed

Key Takeaways

  • A trial judge may refuse a further adjournment to obtain new counsel where significant delays have already occurred, the trial is well advanced, and the accused is capable of conducting the proceedings personally.
  • The Crown's obligation to call or make available material witnesses does not extend to witnesses who genuinely cannot be located, provided there is evidence of reasonable attempts to find them.
  • No appeal lies against a verdict of not guilty: where a jury acquits on a particular count, the acquittal itself is the remedy and provides no basis for appeal.
  • In dismissing the appeal, the court confirmed that an accused is bound by the forensic choices made by trial counsel before instructions are withdrawn, including agreements on documentary evidence.
  • Refusing bail after the appeal was dismissed, the court applied s 18(1)(j) of the Bail Act 2013 (NSW), which requires consideration of whether a pending appeal has a reasonably arguable prospect of success. Once the appeal failed, the basis for release fell away entirely.

Legislation and Cases Referenced

Legislation
- Bail Act 2013 (NSW), ss 18, 22
- Crimes Act 1900 (NSW), ss 192E, 351A
- Evidence Act 1995 (NSW), ss 128, 137, 191

Cases
- Browne v Dunn (1893) 6 R 67
- Carnaby v R [2021] NSWCCA 203
- Doney v The Queen (1990) 171 CLR 207; [1990] HCA 51
- Dublin, Wicklow & Wexford Railway Co v Slattery (1878) 3 App Cas 1155
- Elias v The Queen; Issa v The Queen (2013) 248 CLR 483; [2013] HCA 31
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- McInnis v The Queen (1979) 143 CLR 575; [1979] HCA 65
- R v Birks (1990) 19 NSWLR 677
- R v Suteski (2002) 56 NSWLR 182; [2002] NSWCCA 509
- The Queen v Apostilides (1984) 154 CLR 563; [1984] HCA 38