Chung v The King - [2024] NSWCCA 71

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Chung v R [2024] NSWCCA 71
Hearing dates: 22 April 2024
Date of orders: 13 May 2024
Decision date: 13 May 2024
Before: Basten AJA at [1];
Campbell J at [73];
Cavanagh J at [74]
Decision:
(1) With respect to grounds 2, 3, 4 and 5, refuse leave to appeal.
(2) With respect to grounds 1 and 6, grant leave, but dismiss the appeal.

Catchwords:
CRIME – appeals – appeal against conviction – fraud – dishonestly obtaining financial advantage by deception – offender overpaid herself salary, overtime and superannuation – problem gambling – evidence of offender’s ATM withdrawals at casino – whether relevant and not unfairly prejudicial
EVIDENCE – cross-examination – whether trial judge erred in not allowing defence questions directed to motivation to lie – whether questioning capable of supporting an inference that witness had motivation to lie – questions peripheral and not capable of supporting the inference sought by the defence
CRIMINAL PROCEDURE – appeal – directions to jury – jury directed that monetary amount in each count on the indictment need not be proven beyond reasonable doubt – particulars are not elements of offence – only elements required to be proved beyond reasonable doubt
CRIMINAL PROCEDURE – appeal – directions to jury – whether summing up unbalanced – summation to be examined as a whole – whether trial judge dismissive of defence case

Legislation Cited:
Crimes Act 1900 (NSW), s 192E(1)
Criminal Appeal Act 1912 (NSW), s 5(1)
Evidence Act 1995 (NSW), s 137

Cases Cited:
Doney v The Queen (1990) 171 CLR 207; [1990] HCA 51
Fantakis v R [2023] NSWCCA 3
Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36
R v Passmore (2021) 110 NSWLR 293; [2021] NSWCCA 201
The Queen v A2 (2019) 269 CLR 507; [2019] HCA 35

Category: Principal judgment
Parties: Yvonne Chung (Appellant)
Rex (Respondent)
Representation:
Counsel:
B Levet (Appellant)
S Lind (Respondent)
Solicitors:
Kinghan & Associates (Appellant)

File Number(s):
Solicitor for Public Prosecutions (NSW) (Respondent)
2020/365228
Publication restriction: There is to be no publication of the name of Mr Hooker’s daughter or her child.
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Citation:

[2023] NSWDC 257

Date of Decision:

17 July 2023

Before:

Sutherland DCJ

File Number(s):

2020/365228

JUDGMENT

BASTEN AJA: From June 2008 until November 2015, the applicant, Yvonne Chung, was the financial controller of a surveying business, Lynton Surveys Pty Ltd. By an indictment dated 19 August 2021, she was charged with one count of dishonestly obtaining a financial advantage by deception, by withdrawing a total of $301,300 from her employer’s bank account between 4 July 2010 and 1 December 2015. By way of alternative, the indictment charged 175 individual withdrawals, the first of which occurred on 5 July 2010 and the last in November 2015. All the offences were formulated by reference to s 192E(1)(b) of the Crimes Act 1900 (NSW).
Following a trial…

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 Chung v The King

Details

AGLC: Chung v The King [2024] NSWCCA 71
Case: [2024] NSWCCA 71
Decision Date: 13 May 2024

CaseChat Overview and Summary

The appeal before the court involved a conviction for fraud, where the appellant had dishonestly obtained a financial advantage by deception. The appellant, Chung, had overpaid herself in salary, overtime, and superannuation. Evidence of ATM withdrawals at a casino was presented as part of the prosecution's case, which Chung argued was both relevant and not unfairly prejudicial. The appellant contested the admissibility of this evidence, arguing that it was both pertinent and not unduly prejudicial to her case. The appellant also argued that the trial judge erred in not allowing certain questions during cross-examination, which she believed could have supported an inference that a witness had a motivation to lie. The appellant submitted that these questions were peripheral and not capable of supporting the inference sought by the defence.

The court examined several legal issues, including whether the trial judge correctly excluded certain questions during cross-examination and whether the evidence of ATM withdrawals at a casino was both relevant and not unfairly prejudicial. The court also considered whether the trial judge's directions to the jury were correct, particularly in relation to the proof of monetary amounts in each count on the indictment. Additionally, the court assessed whether the summing up to the jury was balanced and fair, considering the entire summation rather than isolated parts.

In its reasoning, the court determined that the evidence of ATM withdrawals at a casino was relevant and not unfairly prejudicial, as it provided context to the appellant's financial situation and potential motive. The court also found that the trial judge's exclusion of certain cross-examination questions did not result in a miscarriage of justice, as the questions were peripheral and did not support the inference that the witness had a motivation to lie. Furthermore, the court concluded that the trial judge's directions to the jury were correct, as the monetary amounts in each count on the indictment were not elements of the offence that needed to be proven beyond reasonable doubt. Finally, the court held that the summing up to the jury was balanced and fair when considered as a whole, and that the trial judge was not dismissive of the defence case.

The appeal was ultimately dismissed, and the appellant's conviction was upheld. The court found no error in the trial judge's handling of the case and no basis to overturn the appellant's conviction.

Orders