Gorgis v The Queen - [2021] NSWCCA 31

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Gorgis v R [2021] NSWCCA 31
Hearing dates: 31 August 2020
Decision date: 15 March 2021
Before: Hoeben CJ at CL at [1]
Button J at [2]
N Adams J at [99]
Decision:
(1) Leave to appeal against conviction granted.
(2) Appeal against conviction dismissed.

Catchwords:
CRIME — dishonestly obtain financial advantage by deception — plea of guilty entered and agreed facts signed whilst represented — co-accused in joint criminal enterprise acquitted by direction at subsequent trial — application for withdrawal of guilty plea refused — where guilty plea said to be entered for convenience and not genuine consciousness of guilt — asserted defect in Crown case with regard to causation

Legislation Cited:
Crimes Act 1900 (NSW), s 192E
Criminal Appeal Act 1912 (NSW), s 6

Cases Cited:
Director of Public Prosecutions Reference No 1 of 2017 [2019] HCA 9; 93 ALJR 424
Meissner v the Queen (1995) 184 CLR 132; [1995] HCA 41
R v Ho (1989) 39 A Crim R 145
R v Prasad (1979) 23 SASR 161
R v SL [2004] NSWCCA 397
R v Thalari (2009) 75 NSWLR 307; [2009] NSWCCA 170
Wong v DPP (NSW) [2005] NSWSC 129; (2005) 155 A Crim R 37

Category: Principal judgment
Parties: Alan Gorgis (Applicant)
Regina (Respondent)
Representation:
Counsel:
D Edwardson QC with N Mikhaiel (Applicant)
M Millward (Respondent)
Solicitors:
Michael Abboud and Co (Applicant)
Director of Public Prosecutions (Respondent)

File Number(s): 2015/90383
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

11 October 2019

Before:

Flannery SC DCJ

File Number(s):

2015/90383

Judgment

HOEBEN CJ at CL: I agree with the Button J and the orders which he proposes.
BUTTON J:

Introduction

This is an application for leave to appeal against conviction by Mr Alan Gorgis (the applicant) in relation to the offence of dishonestly obtaining a financial advantage by deception, contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW).
Although the applicant pleaded guilty to the offence whilst represented, and signed an agreed statement of facts that was tendered in the proceedings on sentence and that set out evidence of the elements of the offence, the submission is that the conviction constitutes a miscarriage of justice, and should therefore be quashed.
In short, that is said to be because: first, the plea of guilty was in truth one of convenience, and was not founded on a real acceptance of guilt; secondly, the Crown case was irretrievably flawed in any event, in that an essential element could not be proven; and thirdly, the subsequent acquittal by direction at trial of two co-accused demonstrates that the applicant should also not have been convicted.

The Crown case

The following summary of the Crown case against the applicant is derived from the agreed facts signed by the applicant and his lawyer, to which I have referred above. I shall explain later the way…

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 Gorgis v The Queen

Details

AGLC: Gorgis v The Queen [2021] NSWCCA 31
Case: [2021] NSWCCA 31
Decision Date: 15 March 2021

CaseChat Overview and Summary

The case of Gorgis v The Queen involves the appellant who was charged with dishonestly obtaining a financial advantage by deception. The appellant entered a guilty plea, which was subsequently challenged on the grounds that it was not entered with a genuine consciousness of guilt, but rather for convenience. The case was heard in the High Court of Australia. The appellant applied to withdraw his guilty plea, but the application was refused. The respondent argued that the appellant's plea was valid and that the application should be dismissed.

The court was required to decide whether the appellant's plea of guilty was valid, and whether the appellant's application to withdraw the plea should be granted. The court had to consider whether the appellant's plea was entered with a genuine consciousness of guilt, and whether there was any defect in the Crown's case with regard to causation. The court also had to consider whether the appellant's plea was a result of a joint criminal enterprise with a co-accused, who was acquitted at a subsequent trial.

The court held that the appellant's plea of guilty was valid and that the application to withdraw the plea should be dismissed. The court found that the appellant's plea was entered with a genuine consciousness of guilt, and that there was no defect in the Crown's case with regard to causation. The court also held that the fact that the co-accused was acquitted at a subsequent trial did not affect the validity of the appellant's plea. The court found that the appellant's plea was a result of his own free will, and that there was no evidence to suggest that it was entered for convenience or any other improper reason. The court also found that the appellant had been properly represented by legal counsel at the time of entering the plea.

The final orders of the court were that the appellant's application to withdraw his guilty plea was dismissed, and that the conviction and sentence imposed upon the appellant were upheld. The court held that the appellant's plea of guilty was valid and that the conviction and sentence were properly imposed. The court also held that there was no defect in the Crown's case with regard to causation, and that the appellant's co-accused being acquitted at a subsequent trial did not affect the validity of the appellant's plea. The court found that the appellant's plea was a result of his own free will, and that there was no evidence to suggest that it was entered for convenience or any other improper reason.

Orders