AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 29 September 2025

Martorano v R

[2025] NSWCCA 152

Fraud & dishonesty
CRIME APPEALS APPEAL AGAINST CONVICTION IRREGULARITY IN CRIMINAL TRIAL MATERIALITY MISCARRIAGE OF JUSTICE

Citation: Martorano v R [2025] NSWCCA 152
Court: Court of Criminal Appeal, New South Wales
Date: 29 September 2025
Judge(s): Bell CJ (principal judgment); Free JA and McGuire J (agreeing)

Background

The appellant was convicted by jury of dishonestly causing a loss to the Commonwealth, contrary to s 135.1(5) of the Criminal Code Act 1995 (Cth). The offending concerned the transfer of assets, including cash, contracts, and staff, from one company (referred to here as Old Premier) to a newly incorporated company (New Premier), at a time when Old Premier owed substantial tax debts to the Australian Taxation Office. Old Premier was ultimately placed into liquidation, leaving the Commonwealth with an unpaid tax liability of approximately $1.35 million. The appellant had sold his shares in Old Premier to his co-accused two days after New Premier was incorporated.

The co-accused was acquitted of the equivalent count, and both were acquitted of a separate count of attempting to pervert the course of justice. The appellant was sentenced to two years and six months' imprisonment, with release on recognizance after 15 months.

The appellant appealed his conviction on two grounds, both alleging irregularities at trial that caused a miscarriage of justice. He later withdrew his appeal against sentence.

  • Whether the Crown's attempted tender of the criminal record of the appellant's accountant constituted a material irregularity that gave rise to a miscarriage of justice.
  • Whether the trial judge erred in upholding a Crown objection to a line of cross-examination directed at a Federal Agent, and in refusing to admit a related article, in circumstances where the evidence was said to be relevant to an honest belief defence.

Decision

Ground 1: Attempted tender of the accountant's criminal record

The Crown attempted to tender the criminal record of Mr La Rocca, who was the appellant's accountant. The record was never admitted into evidence. The trial judge issued directions to the jury to disregard the attempted tender and to consider only evidence properly before the court. Critically, the attempted tender did not directly identify whose criminal record it was.

Bell CJ held there was no material irregularity. The accountant's role in the proceedings was not central to the Crown case, and the connection between his criminal record and the issues at trial was not material. The appellant's counsel made a rational forensic decision not to seek a discharge of the jury, reinforcing the conclusion that the episode did not deprive the appellant of a fair trial. Any irregularity, even if established, was not of a kind that occasioned a miscarriage of justice.

Ground 2: Objection upheld during cross-examination of Federal Agent; refusal to admit article

Defence counsel sought to question a Federal Agent about an article apparently referenced by the co-accused during a recorded telephone conversation on 1 June 2017. The Federal Agent had already indicated he had not been able to locate the article. Bell CJ held that upholding the Crown's objection was entirely proper: any answer the Federal Agent could have given would necessarily have been speculative.

As to the article itself, even accepting it might have had some relevance to the co-accused's honest belief defence, it had no apparent relevance to the appellant. There was no evidence the appellant had read the article, and no attempt was made to explain how its admission could have assisted his defence. The phone call itself postdated the conduct that formed the basis of the offences, which occurred primarily in 2013. The submission that the article supported a shared honest belief did not rise above assertion.

Orders Made

  • The appeal against conviction was dismissed.

Key Takeaways

  • An attempted tender of evidence that is never admitted, and is followed by a curial direction to disregard it, will not ordinarily constitute a material irregularity sufficient to establish a miscarriage of justice.
  • Where defence counsel makes a rational forensic decision not to seek a jury discharge following a problematic episode at trial, this weighs against a finding that the episode caused a miscarriage of justice on appeal.
  • Cross-examination that would necessarily call for speculation from the witness is properly rejected, and no error arises from upholding such an objection.
  • Evidence said to be relevant to a co-accused's honest belief defence does not assist the appellant unless a cogent basis is established for connecting that evidence to the appellant's own defence.
  • In dismissing both grounds of appeal, the Court of Criminal Appeal confirmed that materiality is a central consideration: not every irregularity at trial gives rise to a miscarriage of justice.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), ss 135.1(5), 11.2A(1)
- Crimes Act 1914 (Cth), ss 20(1)(b), 43(1)
- Criminal Appeal Act 1912 (NSW), ss 5(1)(b), 6(1)
- Evidence Act 1995 (NSW), s 191

Cases
- Brawn v R (2025) 99 ALJR 872; [2025] HCA 20
- MDP v R (2025) 99 ALJR 969; [2025] HCA 24
- Hamilton (a pseudonym) v R (2021) 274 CLR 531; [2021] HCA 33
- Hofer v R (2021) 274 CLR 351; [2021] HCA 21
- Baini v R (2012) 246 CLR 469; [2012] HCA 59
- Weiss v R (2005) 224 CLR 300; [2005] HCA 81
- Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15
- Nudd v R (2006) 80 ALJR 614; [2006] HCA 9
- Mahmood v Western Australia (2008) 232 CLR 397; [2008] HCA 1
- Wilde v R (1988) 164 CLR 365; [1988] HCA 6
- Astill v R [2024] NSWCCA 118
- Zhou v R [2021] NSWCCA 278
- Hamide v R [2019] NSWCCA 219
- Dragojlovic v R (2013) 40 VR 71; [2013] VSCA 151
- R v Strawhorn (2008) 19 VR 101; [2008] VSCA 101
- Regina v Yeo [2005] NSWCCA 49