Burnard v R, R v Burnard - [2009] NSWCCA 5

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Burnard v R, R v Burnard [2009] NSWCCA 5

FILE NUMBER(S):
2007/15154

HEARING DATE(S):
10 December 2008

JUDGMENT DATE:
10 February 2009

PARTIES:
BURNARD, Neil Austin v Regina
Regina v BURNARD, Neil Austin

JUDGMENT OF:
Tobias JA James J Price J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
07/11/0720

LOWER COURT JUDICIAL OFFICER:
Charteris DCJ

LOWER COURT DATE OF DECISION:
22 August 2008

COUNSEL:
IM Barker QC / MA Wigney - Appellant/Respondent
WJ Abraham QC / NJ Adams - Respondent/Appellant

SOLICITORS:
Atanaskovic Hartnell, Solicitors
Commonwealth Director of Public Prosecutions

CATCHWORDS:
CRIMIMAL LAW — Crimes Act s 178BB — Crown appeal against sentence — totality in sentencing — suspended sentences for multiple offences — discretion to dismiss the Crown appeal

LEGISLATION CITED:
Banking Act
Corporations Act
Crimes (Sentencing Procedure) Act
Crimes Act
Evidence Act

CASES CITED:
Doney v The Queen (1990) 171 CLR 207
Everett v The Queen (1994) 181 CLR 295
Festa v The Queen (2001) 208 CLR 593
Jones v The Queen (1997) 191 CLR 439
M v The Queen (1994) 181 CLR 487
MFA v The Queen (2002) 213 CLR 606
Pearce v The Queen (1998) 194 CLR 610
R v JRD [2007] NSWCCA 55
R v Petroulias [2005] 62 NSWLR 663
R v Wall [2002] NSWCCA 42
R v Weldon [2002] 136 A Crim R 55
R v Zamagias [2002] NSWCCA 17

TEXTS CITED:

DECISION:
Appeal against conviction dismissed.
Crown appeal against sentence dismissed in exercise of Court's discretion.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2007/15154
TOBIAS JA
JAMES J
PRICE J
TUESDAY 10 FEBRUARY 2009

BURNARD, Neil Austin v R
R v BURNARD, Neil Austin

Judgment

TOBIAS JA: I agree with James J.
JAMES J: Neil Austin Burnard was tried in the District Court before his Honour Judge Charteris and a jury on nine charges brought under s 178BB of the Crimes Act (NSW) of making or publishing a statement knowing it to be false in a material particular with intent to obtain a financial advantage for another person. Although the charges were laid under the New South Wales Crimes Act, the prosecution was conducted by the Commonwealth Director of Public Prosecutions.
At the conclusion of the trial the jury, on 6 May 2008, found Mr Burnard guilty on all nine charges. Sentence proceedings were conducted on 6 May 2008 and 20 June 2008. On 22 August 2008 Judge Charteris delivered his reserved remarks on sentence and passed sentence on Mr Burnard. On each of counts 3, 6, 7 and 9 in the indictment Mr Burnard was sentenced to a term of imprisonment for 12 months the execution of which was suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act, conditionally upon his entering into a bond to be of good behaviour for the period of the sentence. Although not expressly stated in his Honour’s sentencing orders, it is clear that the four sentences of imprisonment were intended to…

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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Details

Case: [2009] NSWCCA 5
Decision Date: 10 February 2009

CaseChat Overview and Summary

In the case of Burnard v R, the appellant, Burnard, faced a criminal appeal against both his conviction and sentence. The primary issue before the court was whether the trial judge erred in allowing certain evidence from Mr David Lewis, a senior employee of APRA, which was crucial in determining the existence of the entity "Kebbel Investment Bank." Additionally, the court had to decide whether the Crown's appeal against the sentence should be dismissed, considering the principles of fairness and the totality of sentencing for multiple offences.

The legal issues centered on the admissibility of Mr Lewis's expert opinion regarding the regulatory requirements for financial institutions, the authorisation to use the word "bank," and the implications of these requirements on the existence of "Kebbel Investment Bank." The appellant argued that Mr Lewis's evidence should have been excluded as impermissible opinion evidence under s 137 of the Evidence Act. However, the trial judge ruled that the evidence was relevant and should not be excluded. The court needed to evaluate the correctness of this ruling.

The court examined the reasoning of the trial judge and concluded that the evidence was indeed relevant to the issue of whether "Kebbel Investment Bank" existed. The court found that Mr Lewis's expertise in prudential supervision and the regulatory framework for financial institutions provided valuable insight into the criteria for being authorised as a bank and the implications of using the word "bank" in an entity's name. The court upheld the trial judge's decision, affirming that the evidence was admissible and properly considered in the context of the case. Regarding the Crown's appeal against sentence, the court exercised its discretion under the totality principle, considering the appellant's release from custody and his efforts towards rehabilitation, and ultimately decided to dismiss the Crown's appeal.

The final orders of the court were to dismiss the appeal against conviction and, in the exercise of its discretion, to dismiss the Crown's appeal against sentence, aligning with the principles of fairness and the totality of sentencing.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Mr Millmore said that his understanding had been that “Kebbel Investment Bank” was a trading name intended to cover all of the companies within the Kebbel group. The evidence of Mr Lewis and Mr Foran at the trial Another witness called by the Crown was Mr David Lewis, a senior employee of APRA (the Australian Prudential Regulation Authority). Counsel for Mr Burnard at the trial objected to the evidence the Crown proposed to lead from Mr Lewis. After extensive argument the trial judge ruled that the evidence was relevant to the issue of whether the entity Kebbel Investment Bank did not exist, that it should not be excluded pursuant to s 137 of the Evidence Act and that it should not be excluded as being impermissible opinion evidence. Mr Lewis’ evidence was summarised in the appellant’s written submissions on the appeal against conviction and the summary appears to me to accord with the summary by the Crown of the evidence of the same witness and, on a comparison I have made with the transcript of Mr Lewis’ evidence, appears to me to be accurate. The summary of Mr Lewis’ evidence in the appellant’s written submissions on the conviction appeal was as follows:-“(a)He held degrees in economics and law from Macquarie University and the University of London.(b)He had over 25 years experience at APRA and the Reserve Bank in relation to “the prudential supervision of financial institutions” and “banks”.(c)APRA is a prudential regulator of banks and other deposit taking institutions. Its role is to ensure that the institutions are best able to meet their obligations to beneficiaries under all reasonable circumstances. In relation to banks, that refers to their ability to meet obligations to depositors.(d)There are “entry requirements” in relation to financial institutions. APRA looks at the capacity of the institution to meet its obligations under the Banking Act and to meet APRA’s regulatory requirements. When those requirements are met, the institutions become authorised deposit taking institutions.(e)Mr Lewis identified a list of authorised deposit taking institutions in Australia. The institutions on this list had made application through “the legislation” and APRA had authorised them as deposit-taking institutions. (f)“Banking business” is defined in the Act by reference to the definition in the Constitution as “taking money on deposit and making loans.”(g)APRA applies the “reservoir test” in determining whether an entity is carrying on the business of banking. That test refers to “the obligation to take money on deposit and hold that for when depositors wish to make available.”(h)The ability to use the word bank in an entity’s name involves a two stage process: a licence to conduct the business and approval to use a restricted word.(i)Use of the word “bank” serves as “some kind of trademark” in that “it’s a certification that you’ve been authorised under the Act, that you are subject to the requirements of APRA, and that you are obliged to meet the obligations under the Banking Act.”(j)There are depositor protection arrangements: essentially if the institution goes into liquidation, depositors have a certain ranking in relation to eligibility for payment out of the funds obtained as a result of liquidation.(k)A non-bank financial institution cannot use the word “bank”. There are a number of non-bank financial institutions that operate in Australia: you don’t have to be authorised as a bank to operate a financial business or to take funds. (l)APRA considers a merchant bank to be an entity that typically operates in wholesale markets. It arranges finance rather than raising funds directly from the public. It might do project finance, it might do syndicated loans.(m)Merchant banks are “not part of the Banking Act.” The term merchant bank is not defined in the Banking Act.(n)Merchant Banks, along with some other non-bank financial institutions, are required to register under the Financial Sector (Collection Data) Act. That is purely for “macroeconomic purposes.”(o)These institutions “get an exemption…from carrying on authorised banking business pursuant to an exemption order.” A condition attached to the exemption is that they have to disclose that they are not authorised under the Act and not subject to APRA supervision. (p)It is rare for consent to be granted to a non-ADI entity conducting a financial business to use the restricted word “bank”. An example would be a manufacturer of teller machines who could say they were in the business of “bank equipment supplies”.(q)Merchant banks have a general exemption from section 66 [of the Banking Act] for the use of the word “merchant bank” in a descriptive sense.(r)There are no authorisations, general or otherwise, for the use of the words “investment bank”. You must be a bank to use them.(s)No entity with the name “Kebbel” has ever applied for or been granted consent to the assumption or use of the word “bank” within its name or at all. There has been no application for an exemption pursuant to category (d) under the Financial Corporations Act in relation to an entity by the name of Kebbel.(t) The Banking Act does not contain a definition of “bank”.”

Decision

Reasons for decision

In these circumstances counsel for the respondent referred, appropriately, to the following passage in the joint judgment of Brennan, Deane, Dawson and Gaudron JJ in Everett v The Queen (1994) 181 CLR 295 at 305:-“…the deep rooted notions of fairness which underlie the common law principle against double jeopardy require that a Court of Criminal Appeal approach an application by the Crown for leave to appeal against sentence on the basis that such leave should only be granted in the rare and exceptional case. Indeed, that approach was particularly appropriate in the present cases where the effect of the sentencing judge’s orders had been that each of the appellants had been released from custody and had been permitted and encouraged to resume his place in the community and to set out on the path of rehabilitation.”Conclusion In my opinion, the appeal against conviction should be dismissed and the Court should, in the exercise of its discretion, dismiss the Crown appeal against sentence. PRICE J: I agree with James J.**********

Ratio Decidendi

Legal Principle Established

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