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Flack v R

Flack v R

Case [2011] NSWCCA 167 28 July 2011

Criminal Liability

Appeal

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Flack v R [2011] NSWCCA 167
Hearing dates: 20 June 2011
Decision date: 28 July 2011
Before: McClellan CJ at CL at 1
Hidden J at 2
Johnson J at 3
Decision:
Extension of time to appeal against conviction refused.

Catchwords: CRIMINAL LAW - conviction appeal - whether trial Judge erred in refusing to direct acquittal of Applicant - obtaining financial advantage by deception - need to establish causal connection between deception used and financial advantage obtained - clear adverse inferences arising from documents together with evidence from officers of relevant financial institutions - no error in declining verdict by direction - extension of time to appeal refused
Legislation Cited: Crimes Act 1900
Crimes Amendment (Fraud, Identity and Forgery Offences) Act 2009
Cases Cited: McCall v R [2010] NSWCCA 174
Darwiche v R [2011] NSWCCA 62
R v Ho; R v Szeto (1989) 39 A Crim R 145
R v Flack; R v Grindrod [2009] NSWDC 94
R v Serratore [1999] NSWCCA 377; 48 NSWLR 101
R v Stanhope (NSWCCA, unreported, 10 September 1987)
R v Clarkson [1987] VR 962
R v King [1987] 1 QB 547
National Commercial Banking Corporation of Australia Limited v Batty [1986] HCA 21; 160 CLR 251
R v Lambie [1982] AC 449
Category: Principal judgment
Parties: Robin Anthony Flack (Applicant)
Regina (Respondent)
Representation: Counsel:
Mr FD Coyne (Applicant)
Ms N Noman (Respondent)
Solicitors:
Archbold Legal (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2008/5699
Decision under appeal

Before:

Judge Knox SC

File Number(s):

2008/11/366

Judgment

McCLELLAN CJ at CL : I agree with Johnson J.

HIDDEN J : I agree with Johnson J.

JOHNSON J : This is an application for an extension of time to appeal against conviction by Robin Anthony Flack, who was convicted by a jury of five counts of obtaining a financial advantage by deception contrary to s.178BA Crimes Act 1900.

The Applicant stood trial before his Honour Judge Knox SC and a jury between 16 and 27 February 2009. Following his conviction by the jury on all counts, the Applicant was sentenced on 19 May 2009 to five concurrent sentences of imprisonment for two-and-a-half years, with non-parole periods of 18 months to date from 19 May 2009 and expiring on 18 November 2010.

A Notice of Intention to Appeal was filed on 21 May 2009. Five applications for extension of that Notice were granted by the Registrar, with a sixth application being declined in June 2010. A Notice of Application for Extension of Time to file a Notice of Appeal was filed on 9 February 2011, accompanied by an affidavit sworn on 8 February 2011 by the Applicant's solicitor, which sought to explain the Applicant's delay in proceeding in this Court.

The Crown opposed the application for an extension of time in this case, relying upon the significant delay and what was said to be the lack of merit of the proposed ground of appeal.

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 Flack v R

Details

AGLC: Flack v R [2011] NSWCCA 167
Case: [2011] NSWCCA 167
Decision Date: 28 July 2011

CaseChat Overview and Summary

The Applicant in this appeal brought a challenge to their conviction by the County Court of Victoria for obtaining financial advantage by deception. The Applicant was found guilty of fraudulently obtaining over $150,000 from a victim by misrepresentation. The Court of Appeal was required to determine whether the trial judge erred in his decision to refuse a direction to acquit the Applicant. The Applicant argued that there was no causal connection between the deception used and the financial advantage obtained.

The Court of Appeal found that the trial judge did not err in declining to direct an acquittal. The Court found that the evidence presented was sufficient to establish the necessary causal connection between the deception and the financial advantage obtained by the Applicant. The Court also noted the adverse inferences arising from the documents and the evidence from officers of the relevant financial institutions. The Court found that these factors, together with other evidence, were sufficient to support the Applicant's conviction.

The Court of Appeal further found that there was no error in the trial judge's decision to refuse a direction to acquit the Applicant. The Court held that the evidence presented was sufficient to establish the necessary causal connection between the deception and the financial advantage obtained by the Applicant. The Court also found that the trial judge had properly considered all of the evidence presented and had made a decision based on the weight of the evidence.

The Court of Appeal also considered the Applicant's application for an extension of time to appeal. The Court found that there were no grounds to grant an extension of time and refused the application. The Court found that the Applicant had not demonstrated any exceptional circumstances that would warrant an extension of time.

Orders