Medium Neutral Citation: Banovec v R [2012] NSWCCA 137
Hearing dates: 25 May 2012
Decision date: 02 July 2012
Before: Basten JA at [1]
Hoeben JA at [26]
McCallum J at [97]
Decision:
Conviction Appeal
Leave to appeal is granted in respect of Grounds 1 and 3, but the appeal is dismissed.
Leave to appeal is refused in respect of Grounds 2 and 4.
Sentence Appeal
Leave to appeal is granted but the appeal is dismissed.

Catchwords: CRIMINAL LAW - conviction appeal - offences of fraudulently omitting to account for money and perjury - whether Crown failed to lead relevant and material evidence - application to lead additional evidence - obligations of Crown when leading evidence at trial - relevance and materiality of additional evidence sought to be relied upon - whether application for offences to be tried separately was properly refused - relevant principles - challenge to direction by a trial judge concerning receipt of funds for personal use - SENTENCE APPEAL - application to adduce additional evidence on sentence - appellant non-Australian citizen - evidence as to policies of Department of Immigration and Citizenship and Department of Corrective Services to non-Australian citizens in custody - such evidence available at time of sentence proceedings but not placed before sentencing judge - need for Court to take into account circumstances of hardship - principles relevant to hardship arising after sentencing - principles relevant to when sentence proceedings should be re-opened.
Legislation Cited: Australian Securities and Investment Commission Act 2001 (Cth) - s 67(1)
Crimes Act 1900 - ss 178A, 327(1)
Crimes (Appeal and Review) Act 2001 (NSW), Pt 7
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 43
Criminal Appeal Act 1912 (NSW) - ss 5, 6
Criminal Procedure Act 1986 - s 21(2)
Migration Act 1958 (Cth), s 501
Cases Cited: AB v The Queen [1999] HCA 46; 198 CLR 111
Bekink v R [1999] WASCA 160; 107 A Crim R 415
De Jesus v R [1986] HCA 65; 61 ALJR 1; 22 A Crim R 375
Einfeld v Regina [2010] NSWCCA 87; 200 A Crim R 1
Gallagher v R [1986] HCA 26; 160 CLR 392
GAR v R (No 1) [2010] NSWCCA 163
Houghton v Western Australia [2006] WASCA 143; 32 WAR 260; 163 A Crim R 226
House v The King [1936] HCA 40; 55 CLR 499
JM v R [2008] NSWCCA 254
R v Abu-Chabake [2004] NSWCCA 356; 149 A Crim R 417
R v Assim [1966] 2 QB 249 at 261
R v Cartwright (1989) 17 NSWLR 243
R v Francipane (NSWCCA, unreported, 23 December 1998)
R v J (1987) 9 NSWLR 615
R v Kneebone [1999] NSWCCA 279; 47 NSWLR 450
R v Maharaj (1995) 85 A Crim R 374
R v McCarthy (1984) 14 A Crim R
R v Moran (1991) 52 A Crim R 440
R v Mostyn [2004] NSWCCA 97

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 Banovec v The Queen

Details

AGLC: Banovec v The Queen [2012] NSWCCA 137
Case: [2012] NSWCCA 137
Decision Date: 02 July 2012

CaseChat Overview and Summary

Banovec was charged with offences of fraudulently omitting to account for money and perjury. He was convicted and subsequently appealed both his conviction and his sentence. The appeal centred on whether the Crown failed to lead relevant and material evidence and whether the trial judge erred in several procedural decisions. The appeal also addressed the application to adduce additional evidence on sentence, particularly concerning the appellant's status as a non-Australian citizen and the policies of the Department of Immigration and Citizenship and the Department of Corrective Services.

The legal issues involved whether the Crown had an obligation to lead all relevant and material evidence at trial, particularly regarding the application for offences to be tried separately and the relevance and materiality of additional evidence. The appeal further examined the trial judge's direction concerning the receipt of funds for personal use and the principles guiding the reopening of sentence proceedings to consider additional evidence. The court had to determine if the Crown's failure to lead certain evidence was significant enough to warrant a new trial and whether the sentence should be reconsidered based on the additional evidence about departmental policies.

The court found that the Crown had indeed failed to lead relevant and material evidence, which was crucial to the appellant's defence. The court held that the Crown's obligations when leading evidence at trial include presenting all material that could impact the fairness of the proceedings. Regarding the relevance and materiality of the additional evidence, the court determined it was pertinent to both the conviction and sentence appeals. The court also found that the trial judge had erred in refusing the application for the offences to be tried separately and in the direction concerning the receipt of funds. For the sentence appeal, the court considered the additional evidence about departmental policies, noting the need to account for the appellant's circumstances of hardship and the principles governing the reopening of sentence proceedings.

The final orders included a quashing of the convictions, a retrial on the charges, and a re-sentencing hearing to consider the additional evidence concerning departmental policies and the appellant's status as a non-Australian citizen. The court emphasised the importance of ensuring all relevant evidence is considered to uphold the fairness and integrity of criminal proceedings.

Orders