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Bazouni v R

Bazouni v R

Case [2021] NSWCCA 256 5 November 2021

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Bazouni v R [2021] NSWCCA 256
Hearing dates: 16 June 2021
Decision date: 05 November 2021
Before: Bell P at [1];
Rothman J at [4];
Button J at [40]
Decision:
Appeal against conviction dismissed.

Catchwords:
CRIMINAL LAW – appeal against conviction – fraud by loans manager of bank – directions to jury as to elements of offence – Crown conceded that trial judge had misdirected the jury with regard to mental element of dishonesty – knowledge, as opposed to recklessness, necessary on the part of an accused person as to conduct being dishonest according to the standards of ordinary people – miscarriage of justice established – whether “the proviso” can be applied – whether “no substantial miscarriage of justice has actually occurred” – by majority, appeal dismissed by way of application of the proviso

Legislation Cited:
Crimes Act 1900 (NSW), ss 4B, 192B, 192E, 344A
Crimes Amendment (Fraud, Identity and Forgery Offences) Act 2010 (NSW)
Criminal Appeal Act 1912 (NSW), s 6
Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15
Criminal Code Act1995 (Cth), ss 134.1 and 134.2

Cases Cited:
A.E. Terry's Motors Ltd v Rinder [1948] SASR 167
Bonnard v London General Omnibus (1921) 38 RPC 1
Burford v Clifford [1932] 2 Ch 122
Cesan v The Queen (2008) 236 CLR 358; [2008] HCA 52
Chatsworth Investments Ltd v Amoco (UK) Ltd [1968] 1 Ch 665
Commissioner for Superannuation v Scott, F.o. (1987) 13 FCR 404
Consumer Commission (2003) 216 CLR 53; [2003] HCA 75
Hofer v R [2019] NSWCCA 244
Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7
Marc A Hammond Pty Ltd v Papa Carmine Pty Ltd (1977) 28 FLR 160
O'Brien Glass Industries Ltd v Cool & Sons Pty Ltd (1983) 77 FLR 441
Palser v Grinling [1948] 1 All ER 1
Peters v The Queen (1998) 192 CLR 493; [1998] HCA 7
Priday v The Queen [2019] NSWCCA 272
R v Ghosh (1982) 2 All ER 689; [1982] EWCA Crim 2 (Ghosh)
R v Lockyer (1996) 89 A Crim R 457
ReBonny [1986] 2 Qd R 80
Re: Migliorini; ex parte Silk Brothers (1974) 22 FLR 49
Weiss v The Queen (2005) 224 CLR 300

Category: Principal judgment
Parties: John Bazouni (Appellant)
Regina (Respondent)
Representation:
Counsel:
M McHugh SC with M Fleeton (Appellant)
B K Baker with W Liu (Respondent)
Solicitors:
Streeton Lawyers (Appellant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2015/68058
Publication restriction: Pseudonym adopted for one Crown witness
Decision under appeal

Court or tribunal:

District Court Sydney

Jurisdiction:

Criminal

Date of Decision:

1 November 2019

Before:

Weinstein SC DCJ

File Number(s):

2015/68058

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellant, John Bazouni, was convicted of five counts of dishonestly obtaining a financial advantage by deception, and one count of attempting to dishonestly obtain a financial advantage by deception. The…

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 Bazouni v R

Details

AGLC: Bazouni v R [2021] NSWCCA 256
Case: [2021] NSWCCA 256
Decision Date: 05 November 2021

CaseChat Overview and Summary

The appeal before the High Court involved the conviction of the appellant, Mr Bazouni, on charges of fraud relating to his role as a loans manager at a bank. The central issue was whether the trial judge had adequately directed the jury regarding the mental element required for the offence of fraud. Specifically, the Crown conceded that the trial judge had misdirected the jury by not sufficiently emphasising the need for the appellant to know, rather than merely be reckless, that his conduct was dishonest according to ordinary standards. This misdirection was argued to have potentially led to a miscarriage of justice.

The legal issues before the court encompassed the correct interpretation of the mental element required for the offence of fraud, particularly whether the jury needed to be directed that the accused must know their conduct is dishonest, and not merely be reckless. The court also needed to determine whether the error in the jury direction amounted to a miscarriage of justice and, if so, whether the proviso under the criminal legislation could be applied to dismiss the appeal without a new trial. The application of this proviso depends on whether the court is satisfied that no substantial miscarriage of justice has actually occurred.

The court found that the trial judge’s direction did indeed misdirect the jury by not clearly establishing the necessity of knowledge rather than recklessness. This misdirection constituted a significant error. However, upon considering the evidence and the overall circumstances, the court concluded that no substantial miscarriage of justice had occurred. As a result, the majority of the court dismissed the appeal by applying the proviso, which allowed for the appeal to be dismissed without the need for a new trial. This decision underscores the importance of precise jury directions in criminal cases and the stringent standard required to overturn a conviction on appeal.

Orders