Day v R (No 2)

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Decision restricted [2023] NSWCCA 312
Decision date: 06 December 2023
Before: Simpson AJA at [1];
Lonergan J at [98];
Dhanji J at [99]
Catchwords:
CRIME – appeals – appeal against conviction – embezzlement by clerk or servant – statutory construction of ss 155 and 157 of the Crimes Act 1900 (NSW) – definition of “clerk or servant” – meaning of “employed” and “collector of moneys” – where complainant had contractual relationship with a company controlled by applicant
CRIME – appeals – appeal against conviction – miscarriage of justice – closing address to jury by Crown Prosecutor – prohibition on comment on the accused’s failure to give evidence – references to “no evidence” or a lack of “explanation” – reversal of onus of proof – further improprieties – whether improprieties could be redeemed by trial judge’s directions – whether proviso to s 6(1) of the Criminal Appeal Act 1912 (NSW) applied

The text of this decision has been restricted

CaseChat Overview and Summary

The appellant, Day, was convicted of embezzlement by a clerk or servant under section 155 of the Crimes Act 1900 (NSW), and appealed against his conviction on the basis that the trial judge had erred in law in relation to the definition of “clerk or servant”, “employed” and “collector of moneys” in section 157 of the same Act. Day argued that he did not fit the definition of a clerk or servant, as he had a contractual relationship with a company controlled by him, rather than being directly employed by the complainant. The appeal was heard by the Court of Criminal Appeal in New South Wales.

The appeal raised questions about the interpretation of statutory provisions and the applicability of the proviso to section 6(1) of the Criminal Appeal Act 1912 (NSW). The court needed to determine whether the trial judge’s directions to the jury could redeem the alleged improprieties in the Crown Prosecutor’s closing address, including references to the appellant’s failure to give evidence and a lack of explanation for his actions. The court had to consider whether the proviso applied, which allows for the dismissal of an appeal if the court is satisfied that no substantial miscarriage of justice has occurred.

The Court of Criminal Appeal held that the trial judge’s directions were sufficient to redeem the improprieties in the Crown Prosecutor’s closing address. The court found that the proviso to section 6(1) of the Criminal Appeal Act 1912 (NSW) applied, and therefore dismissed the appeal against conviction. The court held that the appellant’s contractual relationship with the company did not preclude him from being considered a clerk or servant, as he was effectively employed by the complainant through the company. The court also held that the trial judge had not erred in law in interpreting the relevant statutory provisions.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Medium Neutral Citation:	Decision restricted [2023] NSWCCA 312
Decision date:	06 December 2023
Before:	Simpson AJA at [1]; Lonergan J at [98]; Dhanji J at [99]
Catchwords:	CRIME – appeals – appeal against conviction – embezzlement by clerk or servant – statutory construction of ss 155 and 157 of the Crimes Act 1900 (NSW) – definition of “clerk or servant” – meaning of “employed” and “collector of moneys” – where complainant had contractual relationship with a company controlled by applicant CRIME – appeals – appeal against conviction – miscarriage of justice – closing address to jury by Crown Prosecutor – prohibition on comment on the accused’s failure to give evidence – references to “no evidence” or a lack of “explanation” – reversal of onus of proof – further improprieties – whether improprieties could be redeemed by trial judge’s directions – whether proviso to s 6(1) of the Criminal Appeal Act 1912 (NSW) applied