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District Court 2 June 2021

Ming v R

[2021] NSWDC 223

Fraud & dishonesty

Citation: Ming v R [2021] NSWDC 223
Court: District Court of New South Wales
Date: 2 June 2021
Judge: Bennett SC DCJ

Background

The appellant was convicted in the Local Court (Downing Centre) of dishonestly obtaining a financial advantage by deception, contrary to s 192E(1)(b) of the Crimes Act 1900. The charge concerned conduct between 28 August and 9 October 2015, during which the appellant allegedly presented documentation to sell 50% equity in two companies to Mega Platinum Group on behalf of the complainant, thereby obtaining $51,200 for himself.

The Local Court proceedings ran for 14 days across a period from October 2017 to March 2019. The appellant appealed to the District Court, challenging both the conviction and raising procedural arguments about the conduct of the original proceedings.

  • Whether the appeal, conducted as a rehearing on the original evidence, established guilt beyond reasonable doubt
  • Whether two written statements from an overseas witness should be admitted as fresh evidence under s 65(8) of the Evidence Act 1995
  • Whether the first statement, previously tendered and excluded in the Local Court under s 135 of the Evidence Act, qualified as "fresh evidence" under the Crimes (Appeal and Review) Act 2001
  • Whether the charge was defective for encompassing a course of conduct and a global sum
  • Whether the elements of dishonesty, deception, and financial advantage had been established
  • Whether the appellant had a claim of right over the funds, including as reward for services rendered
  • Whether the representations made by the appellant had induced the payment

Decision

Nature of the appeal: The District Court conducted a rehearing on the transcript and exhibits from the Local Court, assembled in folders tendered as Exhibit A. Consistent with the applicable legislation, the Court formed its own view of the facts without needing to identify error on the part of the magistrate. The Court noted, however, that the magistrate had the advantage of observing witnesses as they gave evidence.

Fresh evidence application: The Court refused to admit either of the two statements attributed to an overseas witness, Manoel Bronilla Banawa. The first statement had been tendered and excluded in the Local Court under s 135 of the Evidence Act 1995 and therefore did not meet the definition of "fresh evidence" under the Crimes (Appeal and Review) Act 2001. Its admissibility fell to be considered as part of the conviction appeal. The second statement, offered after the finding of guilt in the Local Court, qualified as fresh evidence but the Court was not satisfied it was in the interests of justice to admit it. Both documents were also refused under s 135 of the Evidence Act, with the Court noting concerns about the absence of any person who could attest to having seen, heard, or otherwise perceived the representations being made.

Substantive grounds of appeal: The Court rejected each of the appellant's arguments in turn. It was not persuaded that the charge was defective for addressing a course of conduct. It found the Crown had established dishonesty, that no genuine claim of right existed over the funds, and that the appellant had obtained the $51,200 through deception by presenting the relevant documentation. The Court was satisfied the representations induced the payment, and that the financial advantage accrued to the appellant personally, notwithstanding the involvement of corporate entities. The appellant's good character was taken into account but did not displace the findings.

Criticism of the prosecution: The appellant contended the Crown should have done more to make the overseas witness available. The Court rejected this, noting that the witness had been uncooperative with police early in the investigation. The Court observed that the witness appeared willing to assist the defence, but not to the point of travelling to Australia or giving evidence by audio visual link.

Orders Made

  • The appeal from conviction is dismissed.

Key Takeaways

  • Under the Crimes (Appeal and Review) Act 2001, a District Court hearing a conviction appeal must form its own view of the facts on the original evidence, without needing to identify error by the magistrate below.
  • Evidence tendered and excluded in the Local Court does not constitute "fresh evidence" within the statutory definition; its admissibility is instead assessed as part of the conviction appeal itself.
  • A document purporting to contain representations from an unavailable witness under s 65(8) of the Evidence Act 1995 may still be excluded under s 135 where there is no witness who can attest to having seen, heard, or otherwise perceived the representations being made.
  • In dismissing the appeal, the Court confirmed that a charge framed as a course of conduct resulting in a global sum was not defective in the circumstances presented.
  • A claim of right argument will not displace a finding of dishonesty where the court is satisfied the defendant had no genuine entitlement to the relevant funds.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 192E(1)(b)
- Crimes (Appeal and Review) Act 2001 (NSW), ss 3(1), 18, 19
- Evidence Act 1995 (NSW), ss 65(8), 135

Cases:
- Hannes v DPP (Cth) (No 2) [2006] NSWCCA 373
- Johnson v Millar (1937) 59 CLR 467
- Montgomery v Stewart (1967) 116 CLR 220
- R v Locchi (1991) 22 NSWLR 309
- R v SKL; R v JY; R v XG; L [2019] NSWCCA 43
- S v The Queen (1988-1990) 168 CLR 266