Citation: [2023] NSWCCA 312
Court: Court of Criminal Appeal (NSW)
Date: 6 December 2023
Judge(s): Simpson AJA at [1]; Lonergan J at [98]; Dhanji J at [99]
Background
The applicant was the sole director and shareholder of a company called 6 Degrees Management Pty Ltd ("6 Degrees"), which managed the professional activities of the complainant, a well-known performer and recording artist. Under their arrangement, income earned by the complainant was paid into 6 Degrees' trust accounts. After deducting commission and GST, the applicant was obliged to remit the balance to the complainant.
A jury convicted the applicant of 34 counts of embezzlement as a clerk or servant contrary to s 157 of the Crimes Act 1900 (NSW). The Crown case was that the applicant had misappropriated income received into the 6 Degrees trust account that should have been remitted to the complainant.
The applicant sought leave to appeal on three grounds: that the evidence could not establish he was a "clerk or servant" within the meaning of the statute; that the Crown Prosecutor's closing address occasioned a miscarriage of justice; and that undue pressure had been placed on the jury during deliberations.
Legal Issues
- Whether the applicant fell within the definition of "clerk or servant" in s 155 of the Crimes Act 1900 (NSW), and specifically whether that definition requires a contract of service (as opposed to a contract for services), excludes persons who receive money in the course of business or commerce, or requires a direct contractual relationship between the accused and the complainant.
- Whether the Crown Prosecutor's closing address caused a miscarriage of justice by impermissibly commenting on the applicant's failure to give evidence, reversing the onus of proof, improperly invoking consciousness of guilt and tendency/coincidence reasoning, misstating the use of an affidavit, and expressing personal opinion.
- Whether the proviso to s 6(1) of the Criminal Appeal Act 1912 (NSW) could save the convictions notwithstanding any miscarriage.
- Whether undue pressure was placed on the jury during deliberations.
Decision
Ground 1: Definition of "clerk or servant"
The Court (per Dhanji J, with Simpson AJA and Lonergan J agreeing) rejected the applicant's first ground. The Court held that s 155 of the Crimes Act expressly expands the meaning of "clerk or servant" beyond the traditional contract of service. The provision was enacted in response to R v Wilford (1876), which had restricted the term to those employed under contracts of service. Nothing in the text or legislative history justified limiting the expansive statutory language in the way the applicant urged.
The Court also rejected the argument that s 155 could not apply to persons receiving money in the course of business or commerce. There was no textual basis for such a limitation. Nor did the section require a direct contractual relationship between the accused and the complainant. Section 155 deems "[e]very person employed … as a collector of moneys" to be a clerk or servant. Those words do not demand a direct contract between the parties.
It was a question of fact for the jury whether the applicant was, in substance, engaged on behalf of the complainant as a collector of moneys, notwithstanding that the formal legal relationship was between the complainant and 6 Degrees. The Crown evidence was capable of establishing that the applicant was so employed within the meaning of s 155.
Ground 2: Prosecutorial misconduct in closing address
The Court unanimously upheld ground 2. The Crown conceded that the prosecutor's closing address contained a number of inappropriate comments, including submissions that amounted to commenting on the applicant's failure to give evidence and which had the effect of reversing the onus of proof. The Court found that the accumulation of improprieties was so significant that the trial judge's ameliorative directions could not redeem them. A miscarriage of justice had occurred.
On the proviso, the Crown did not attempt to identify the evidence that would establish the applicant's guilt beyond reasonable doubt, and the applicant had no opportunity to respond to such a contention. The Court therefore could not be satisfied of guilt on its own independent assessment, and the proviso did not apply.
Ground 3: Pressure on the jury
Given the conclusion on ground 2, the Court found it unnecessary to resolve ground 3. The Court noted it raised no issue of principle that would affect the conduct of a new trial.
Orders Made
- Leave to appeal was granted.
- The appeal was allowed in part (on ground 2).
- The applicant's convictions on all 34 counts were quashed.
- A retrial was ordered.
Key Takeaways
- Under s 155 of the Crimes Act 1900 (NSW), the definition of "clerk or servant" is deliberately expansive and extends well beyond traditional contracts of service, encompassing persons "employed … as a collector of moneys" regardless of whether the relationship is characterised as a contract of service or for services.
- The Court of Criminal Appeal held that s 155 does not require a direct contractual relationship between the accused and the complainant. Where a person acts through a corporate entity, the jury may determine as a matter of fact whether the individual was, in substance, employed as a collector of moneys on behalf of the complainant.
- An accumulation of prosecutorial improprieties in a closing address, including comments effectively addressing the accused's failure to give evidence and reversing the onus of proof, can constitute a miscarriage of justice that cannot be cured by judicial directions.
- In considering whether to apply the proviso to s 6(1) of the Criminal Appeal Act 1912 (NSW), the Court confirmed that it cannot be invoked where the Crown does not identify the evidence said to establish guilt beyond reasonable doubt and the applicant has had no opportunity to respond.
- Whether a person was "employed as a collector of moneys" within the statutory definition is ultimately a question of fact for the jury, and the range of relationships capable of falling within s 155 is not confined by the contract of service/contract for services dichotomy.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 155, 157
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Bail Act 2013 (NSW), s 49
- Criminal Procedure Act 1986 (NSW), s 164A
- Evidence Act 1995 (NSW), ss 20, 50, 191
- Criminal Law Amendment Act 1883 (NSW) (repealed), ss 87, 113, 119
Key Cases:
- R v Wilford (1876) 14 SCR (NSW) 465
- R v J (1987) 9 NSWLR 615
- The King v Grubb [1915] 2 KB 683
- Mallan v Lee (1949) 80 CLR 198; [1949] HCA 48
- R v Manasseh and Austin [2002] NSWCCA 27; (2002) 167 FLR 44
- R v Maharaj (1995) 85 A Crim R 374
- HCF v The Queen [2023] HCA 35
- Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36
- Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81
- Mraz v The Queen (1955) 93 CLR 493; [1955] HCA 59
- Zhou v R [2021] NSWCCA 278
- Day v R [2023] NSWCCA 160