Criminal Law—Appeal—Court of Criminal Appeal (N.S.W.)—Function of Court—Power to dismiss appeal where no substantial miscarriage of justice—Criminal Appeal Act, 1912 (N.S.W.), s. 6 (1)*. Criminal Law—Fraudulent omission to account—Ingredients of offence—Direction to jury—Crimes Act, 1900 (N.S.W.), s 178A*.
Decision
December 23. THE COURT delivered the following written judgment : - The applicant for special leave was indicted at the Sydney Quarter Sessions on 14th June 1967 on six counts of fraudulently omitting to account for money received in some instances from Howard James Payne and in other instances from Howard James Payne and Margaret Jean Payne his wife. The offence charged in each count was one of those for which s. 178A of the Crimes Act, 1900 (N.S.W.) provides. That section was originally enacted as s. 29 of the Crimes (Amendment) Act, 1905 (N.S.W.), commonly known as Slattery's Act because it was enacted following upon and to remedy the state of the law disclosed by the decision of this Court in Slattery v. The King (1905) 2 CLR 546 . Later it was amended by s. 2 of the Crimes (Fraudulent Misappropriation) Act, 1929 (N.S.W.) to cover the defect made apparent by the decision in R. v. McDonald (1929) 30 SR (NSW) 73 . (at p199)
2. Each count of the indictment against the applicant followed the formula : "For that he on" a stated date "at Sydney . . . having received certain money, to wit the sum of . . . upon terms requiring him, the said" applicant "to account to" H. J. Payne or H. J. Payne and M. J. Payne as the case may be "for the same, fraudulently did omit to account to the said . . ., in violation of the terms on which he . . ." the applicant "so received the said money". (at p200)
3. It is quite clear upon reading the indictment that the stated date in each count is the date on which the offence is charged to have been committed. But according to the evidence the stated date was in each case the date on which the money was received by the applicant. That the indictment was in this form resulted in part no doubt from inattention on the part of those preparing it but possibly in part because of uncertainty as to what were the terms on which it was proposed to allege that the money had been received by the applicant. Section 360 would have saved the indictment had there been no date but, having regard to the nature of the offence charged, the time at which the accounting was due ought properly to be stated even if only between limiting dates ; the more so that it is at that time that the omission to account must be shown to be fraudulent. In this case, if those questions become critical…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Andrews v the Queen [1968] HCA 84
Case
[1968] HCA 84
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by the applicant, Andrews, against his conviction for murder. The applicant had been found guilty of murder by a jury in the Supreme Court of New South Wales and sentenced to death. The central dispute revolved around the admissibility of certain evidence and the directions given by the trial judge to the jury.
The primary legal issues before the High Court were whether the trial judge had erred in admitting evidence of the applicant's prior convictions and whether the judge's summing up to the jury contained misdirections, particularly concerning the issue of provocation. The court also had to consider whether the jury's verdict was unsafe or unsatisfactory given the evidence presented at trial.
The High Court allowed the appeal, quashing the conviction and sentence. The majority of the court found that the admission of evidence relating to the applicant's prior convictions was prejudicial and likely to have improperly influenced the jury's decision. Furthermore, the court held that the summing up on the issue of provocation was inadequate, failing to properly direct the jury on the relevant legal principles. Consequently, the court concluded that the conviction was unsafe and unsatisfactory.