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Bangaru v R

Bangaru v R

Case [2012] NSWCCA 204 20 September 2012

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Bangaru v R [2012] NSWCCA 204
Hearing dates: 16 April 2012
Decision date: 20 September 2012
Before: Beazley JA at [1]
Hall J at [2]
Beech-Jones J at [3]
Decision:
(1) The appeal against conviction on all counts be dismissed.
(2) The application for leave to appeal the sentence on all counts is granted.
(3) The appeal against sentence on all counts be dismissed.

Catchwords: CRIME - appeal against conviction - obtain money by deception - obtain money by false or misleading statements - whether charges on indictment consistent with offence in respect of which appellant surrendered for extradition - whether trial judge should have directed acquittal - whether miscarriage of justice - whether trial judge failed to direct jury on limb of indictment - whether jury verdicts unreasonable, unsafe or unsatisfactory - whether tendency direction should have been given - s 97(1) Evidence Act - appeal against sentence - whether non-parole period uncertain - whether failure to consider special circumstances - whether allowance for rehabilitation - whether manifestly excessive - totality principle.
Legislation Cited: - Corporations Act 2001 (Cth) - s 200, s 292 s 299
- Crimes Act 1900 - s 178A, s 178BA, s 178BB,
- Criminal Appeal Act 1912 - s 5, s 6(1)
- Criminal Procedure Act 1986 - s 20
- Evidence Act 1995 - s 97(1), s 110
- Extradition Act 1988 (Cth) - s 10(2), s 42
- Trade Practices Act 1974 (Cth) - s 52
Cases Cited: - Browne v Dunn ((1893) 6 R 67
- Dao v R [2011] NSWCCA 63; 278 ALR 765
- DSJ v R; NS v R [2012] NSWCCA 9; 259 FLR 262
- House v R [1936] HCA 40; 55 CLR 499
- Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886; 106 FCR 51
- M v R [1994] HCA 63; 181 CLR 487
- MFA v R [2002] HCA 53; 213 CLR 606
- Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611
- Morris v R [1987] HCA 50; 163 CLR 454
- MWJ v R [2005] HCA 74; (2005) 80 ALJR 329
- O'Donoghue v Ireland [2009] FCAFC 184; 263 ALR 392
- Prasad v R (1979) 23 SASR 161
- QBE Insurance Group Ltd v Australian Securities Commission (1992) 38 FCR 270
- R v Fletcher [2005] NSWCCA 338; 156 A Crim R 308
- R v PWD [2010] NSWCCA 209; 205 A Crim R 75
- R v Zhang [2005] NSWCCA 437; 158 A Crim R 504
- Rasic v R [2009] NSWCCA 202
- Shrimpton v The Commonwealth [1945] HCA 4; 69 CLR 613
- SKA v R [2011] HCA 13; 243 CLR 400
- Truong v R [2004] HCA 10, 223 CLR 122
- United Dominions Corporation Ltd v Brian Pty Ltd…

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 Bangaru v R

Details

AGLC: Bangaru v The Queen [2012] NSWCCA 204
Case: [2012] NSWCCA 204
Decision Date: 20 September 2012

CaseChat Overview and Summary

The appellant, Bangaru, appealed against both his conviction and sentence. He was convicted of obtaining money by deception and obtaining money by false or misleading statements. The trial judge found him guilty of obtaining over $14,000 by deceiving three individuals, including an elderly man. The court had to determine whether the charges on the indictment were consistent with the offence for which the appellant surrendered for extradition. The court also considered whether the trial judge should have directed an acquittal, whether there was a miscarriage of justice, whether the trial judge failed to direct the jury on a limb of the indictment, and whether the jury's verdicts were unreasonable, unsafe, or unsatisfactory. Additionally, the court examined whether a tendency direction should have been given under s 97(1) of the Evidence Act.

The appeal against the sentence concerned whether the non-parole period was uncertain, whether the trial judge failed to consider special circumstances, whether there was an allowance for rehabilitation, and whether the sentence was manifestly excessive. The court applied the totality principle in its assessment. The appellant argued that the trial judge erred in failing to direct the jury that the deception or false or misleading statement must have been made in relation to the obtaining of the money. The court found that the jury's verdicts were not unreasonable, unsafe, or unsatisfactory. The court also held that there was no miscarriage of justice and that the trial judge did not err in not directing an acquittal. The court rejected the argument that the tendency direction should have been given and found that the sentence was not manifestly excessive.

The appeal against conviction was dismissed. The appeal against sentence was also dismissed. The conviction and sentence of the appellant were upheld. The court found that the trial judge did not err in any of the ways argued by the appellant and that the jury's verdicts were sound. The court concluded that the sentence imposed was not manifestly excessive and that the totality principle was appropriately applied. The appellant's appeals were therefore dismissed, and his conviction and sentence were affirmed.

Orders