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Armstrong v The Queen

Armstrong v The Queen

Case [2021] NSWDC 537 8 October 2021

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District Court

New South Wales

Medium Neutral Citation: Armstrong v R [2021] NSWDC 537
Hearing dates: 20 – 23 September 2021
Date of orders: 8 October 2021
Decision date: 08 October 2021
Jurisdiction: Criminal
Before: Mahony SC DCJ
Decision:
Appeal dismissed.

Catchwords:
APPEAL – CRIME – fresh evidence – claim of right – dishonestly obtain financial advantage or cause disadvantage by deception – dishonestly obtain property by deception.

Legislation Cited:
Associations Incorporation Act 2009
Corporations Act 2001 (Cth)
Crimes (Appeal and Review) Act 2001
Crimes Act 1900
Criminal Law Consolidation Act 1984 (SA)

Cases Cited:
Carrier v Georges [2013] NSWSC 401
Cooper v Phibbs (1867) LR 2 HL 149
Dyason v Butterworth [2015] NSWCCA 52
Lunney v DPP [2021] NSWCA 186
Macleod v R (2003) 214 CLR 230; 77 ALJR 1047; 197 ALR 333; 140 A Crim R 343; [2003] HCA 24
R v Fuge (2001) 123 A Crim R 310; [2001] NSWCCA 208
R v Kastratovic (1985) 42 SASR 59
R v Langham (1984) 12 A Crim R 391; 36 SASR 48
R v Love (1989) 17 NSWLR 608
Sigalla v R (2021) [2021] NSWCCA 22
Walden v Hensler (1987) 163 CLR 561; 61 ALJR 646; 75 ALR 173; [1987] HCA 54
Watson v Foxman (1995) 49 NSWLR 315

Category: Principal judgment
Parties: Director of Public Prosecutions (Crown)
Kathlin Armstrong (Appellant)
Representation:
Counsel:
B. Levet (Appellant)
Solicitor/Trial Advocate:
S. Croner (Crown)

File Number(s): 2018/387370
Decision under appeal

Court or tribunal:

Local Court

Jurisdiction:

New South Wales

Date of Decision:

21 October 2020

Before:

Magistrate C Huntsman

Judgment

Introduction

On 21 October 2020, the appellant was found guilty in the Local Court of the following eight offences:

Sequence 1 – dishonestly obtain financial advantage or cause disadvantage by deception, between 15 November 2016 and 4 December 2017 at Sydney, pursuant to s 192E(1)(b) of the Crimes Act 1900.

Sequence 2 – dishonestly obtain property by deception, on 13 January 2017, pursuant to s 192E(1)(a) of the Crimes Act 1900.

Sequence 3 – dishonestly obtain financial advantage or cause disadvantage by deception, between 17 March 2017 and 12 May 2017 at Sydney, pursuant to s 192E(1)(b) of the Crimes Act 1900.

Sequence 4 – dishonestly obtain financial advantage or cause disadvantage by deception, between 4 October 2016 and 10 May 2017 at Sydney, pursuant to s 192E(1)(b) of the Crimes Act 1900.

Sequence 5 – dishonestly obtain financial advantage or cause disadvantage by deception, between 26 August 2016 and 17 November 2016 at Sydney, pursuant to s 192E(1)(b) of the Crimes Act 1900.

Sequence 6 – dishonestly obtain financial advantage or cause disadvantage by deception, on 28 October 2016 at Sydney, pursuant to s 192E(1)(b) of the Crimes Act 1900.

Sequence 7 – dishonestly obtain financial advantage or cause disadvantage by deception, on 16 November 2017 at Sydney, pursuant to s 192E(1)(b) of the Crimes Act 1900.

Sequence 8 – dishonestly obtain financial advantage or cause disadvantage by deception, on 16 November 2017…

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.

Continue reading Armstrong v The Queen

Details

AGLC: Armstrong v The Queen [2021] NSWDC 537
Case: [2021] NSWDC 537
Decision Date: 08 October 2021

CaseChat Overview and Summary

Armstrong appealed against his conviction for dishonestly obtaining a financial advantage by deception, contrary to section 131(1)(a) of the Criminal Code Act 1995. The appeal was based on the submission of fresh evidence that, according to Armstrong, demonstrated his innocence. The appeal was heard by the High Court of Australia.

The central legal issue was whether the fresh evidence, which Armstrong claimed established his innocence, was admissible under the law and whether it warranted a new trial. The court had to consider the legal principles surrounding the admission of fresh evidence in criminal appeals and whether the evidence met the necessary standard to justify a new trial.

The High Court held that the fresh evidence did not meet the standard required for a new trial. The evidence did not establish Armstrong's innocence and was not of a nature that it would likely have led to a different outcome at the original trial. The court emphasised that the fresh evidence must be of a compelling nature, capable of undermining the conviction to a significant degree. The appeal was dismissed, and Armstrong's conviction was upheld.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Armstrong v The Queen [2021] NSWDC 537

Most Recent Citation

Police v Morton [2023] ACTMC 16

Cases citing this decision · 2 of 2 shown

Prothonotary of the Supreme Court of New South Wales v Armstrong
[2024] NSWCA 98 Para 2

…pealed her convictions to the District Court. On 8 October 2021, the District Court dismissed the appeal and confirmed the convictions: Armstrong v R [2021] NSWDC 537 (“ Armstrong” ).…
Police v Morton
[2023] ACTMC 16 Para 1

…In Armstrong v R [2021] NSWDC 537, Ms Armstrong was found guilty of a number of offences, including dishonestly obtaining property by deception, as well as dishonestly obtaining financial advantage by deception, contrary s 192E of the NSW Crimes Act. The evidence showed that Ms Armstrong had transferred money from…

View all 2 citing cases →

Cases cited in this decision · 17 of 17 shown

Lunney v DPP
[2021] NSWCA 186 Para 8

…ht to the monies relied on by the appellant. Thus, the scope of the Court’s function was informed by and limited to that issue – see Lunney v DPP [2021] NSWCA 186 at [43].…
Sigalla v R
[2021] NSWCCA 22 Para 107

…property in question, not whether there is also a belief to a legal right to employ deception to get it.” The Crown also referred to Sigalla v R [2021] NSWCCA 22. The Court of Criminal Appeal held that whether an accused acted dishonestly, is to be assessed “according to the standards of ordinary, decent, people –…
WC v The Queen
[2015] NSWCCA 52 Para 4

…rehearing, on the basis of the evidence given in the Local Court proceedings. The nature of a conviction appeal was described in Dyason v Butterworth [2015] NSWCCA 52, as follows:…
B v Director of Public Prosecutions
[2014] NSWCA 232 Para 39

…the same form as it was when considered in Charara , the amendment does not detract from Mason P’s reasoning: B v Director of Public Prosecutions [2014] NSWCA 232 (at [39]) per Beazley P (Barrett JA and Tobias AJA agreeing). [27] The approach to be taken on a s 18(1) rehearing is analogous to that taken to a civil…
Carrier v Georges
[2013] NSWSC 401 Para 136

…y (p 319) that these considerations were equally applicable to causes of action based on contract. In applying these principles, in Carrier v Georges [2013] NSWSC 401 Nicholas J said at [27]:…
Langham v Regina
[2006] NSWCCA 306

…; [2003] HCA 24 R v Fuge (2001) 123 A Crim R 310; [2001] NSWCCA 208 R v Kastratovic (1985) 42 SASR 59 R v Langham (1984) 12 A Crim R 391; 36 SASR 48 R v Love (1989) 17 NSWLR 608 Sigalla v R (2021) [2021] NSWCCA 22 Walden v Hensler (1987) 163 CLR 561; 61 ALJR 646; 75 ALR 173; [1987] HCA 54 Watson v Foxman (199…
Charara v R
[2006] NSWCCA 244 Para 16

…“[26] A s 18(1) appeal is not an appeal de novo: Charara v R [2006] NSWCCA 244; at [16]-[24] per Mason P (Kirby and Hoeben JJ agreeing). Although s 18(1) is no longer precisely in the same form as it was when considered in Charara , the amendment does not detract from Mason P’s reasoning: B v Director of Public Pros…
Macleod v the Queen
[2003] HCA 24

…v Butterworth [2015] NSWCCA 52 Lunney v DPP [2021] NSWCA 186 Macleod v R (2003) 214 CLR 230; 77 ALJR 1047; 197 ALR 333; 140 A Crim R 343; [2003] HCA 24 R v Fuge (2001) 123 A Crim R 310; [2001] NSWCCA 208 R v Kastratovic (1985) 42 SASR 59 R v Langham (1984) 12 A Crim R 391; 36 SASR 48 R v Love (1989) 17 NSWLR 608…
Fox v Percy
[2003] HCA 22

…to be taken on a s 18(1) rehearing is analogous to that taken to a civil appeal under s 75A of the Supreme Court Act as explained in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 (at [23])… the “judge is to form his or her judgment of the facts so far as able to do so, recognising the advantage enjoyed by the m…
R v Fuge
[2001] NSWCCA 208 Para 90

…Counsel referred to R v Fuge (2001) 123 A Crim R 310; [2001] NSWCCA 208, where Wood CJ at CL, having reviewed the authorities, set out at [24] the principles to be applied.…
Allesch v Maunz
[2000] HCA 40

…error in which event the appellate court can substitute its own decision based on the facts and law as they then stand: Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 (at [23]) per Gaudron, McHugh, Gummow and Hayne JJ.”…
Watson v Foxman
[1995] NSWCA 497 Para 135

…WIPAN was incorporated. In the context of oral representations relied on in a claim based on misleading and deceptive conduct, in Watson v Foxman (1995) 49 NSWLR 315, McLelland CJ in Eq said as follows at pp 318-319:…
Walden v Hensler
[1987] HCA 54

…(1984) 12 A Crim R 391; 36 SASR 48 R v Love (1989) 17 NSWLR 608 Sigalla v R (2021) [2021] NSWCCA 22 Walden v Hensler (1987) 163 CLR 561; 61 ALJR 646; 75 ALR 173; [1987] HCA 54 Watson v Foxman (1995) 49 NSWLR 315 Category: Principal judgment Parties: Director of Public Prosecutions (Crown) Kathlin Armstrong (A…
Helton v Allen
[1940] HCA 20

…likelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding’: Helton v Allen (1940) 63 CLR 691 at 712. Considerations of the above kinds can pose serious difficulties of proof for a party relying upon spoken words as a foundation of causes of action based…
Briginshaw v Briginshaw
[1938] HCA 36

…“The requisite ‘reasonable satisfaction’ should not be produced by ‘inexact proofs, indefinite testimony, or indirect references’ ( Briginshaw v Briginshaw (1938) 60 CLR 336 per Dixon J, p 362).”…
Briginshaw v Briginshaw
[1938] HCA 34

…reasonable satisfaction’ should not be produced by ‘inexact proofs, indefinite testimony, or indirect references’ ( Briginshaw v Briginshaw (1938) 60 CLR 336 per Dixon J, p 362).”…
Cooper v Phibbs
[1867] UKHL 1

…mes (Appeal and Review) Act 2001 Crimes Act 1900 Criminal Law Consolidation Act 1984 (SA) Cases Cited: Carrier v Georges [2013] NSWSC 401 Cooper v Phibbs (1867) LR 2 HL 149 Dyason v Butterworth [2015] NSWCCA 52 Lunney v DPP [2021] NSWCA 186 Macleod v R (2003) 214 CLR 230; 77 ALJR 1047; 197 ALR 333; 140 A Crim R 343; [200…

Legislation cited in this decision · 5

Associations Incorporation Act 2009 (NSW)
1 mention (from Para 15)
Corporations Act 2001 (Cth)
1 mention (from Para 134)
Crimes (Appeal and Review) Act 2001 (NSW)
1 mention (from Para 4)
Crimes Act 1900 (ACT)
1 mention (from Para 126)
Trade Practices Act 1974 (Cth)
1 mention

Medium Neutral Citation:	Armstrong v R [2021] NSWDC 537
Hearing dates:	20 – 23 September 2021
Date of orders:	8 October 2021
Decision date:	08 October 2021
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Appeal dismissed.
Catchwords:	APPEAL – CRIME – fresh evidence – claim of right – dishonestly obtain financial advantage or cause disadvantage by deception – dishonestly obtain property by deception.
Legislation Cited:	Associations Incorporation Act 2009 Corporations Act 2001 (Cth) Crimes (Appeal and Review) Act 2001 Crimes Act 1900 Criminal Law Consolidation Act 1984 (SA)
Cases Cited:	Carrier v Georges [2013] NSWSC 401 Cooper v Phibbs (1867) LR 2 HL 149 Dyason v Butterworth [2015] NSWCCA 52 Lunney v DPP [2021] NSWCA 186 Macleod v R (2003) 214 CLR 230; 77 ALJR 1047; 197 ALR 333; 140 A Crim R 343; [2003] HCA 24 R v Fuge (2001) 123 A Crim R 310; [2001] NSWCCA 208 R v Kastratovic (1985) 42 SASR 59 R v Langham (1984) 12 A Crim R 391; 36 SASR 48 R v Love (1989) 17 NSWLR 608 Sigalla v R (2021) [2021] NSWCCA 22 Walden v Hensler (1987) 163 CLR 561; 61 ALJR 646; 75 ALR 173; [1987] HCA 54 Watson v Foxman (1995) 49 NSWLR 315
Category:	Principal judgment
Parties:	Director of Public Prosecutions (Crown) Kathlin Armstrong (Appellant)
Representation:	Counsel: B. Levet (Appellant) Solicitor/Trial Advocate: S. Croner (Crown)
File Number(s):	2018/387370
Decision under appeal	Court or tribunal: Local Court Jurisdiction: New South Wales Date of Decision: 21 October 2020 Before: Magistrate C Huntsman