Bathurst CJ at [1]; Hoeben CJ at CL at [712]; Leeming JA at [713]
Decision:
(1) Appeal allowed.
(2) Quash the verdict of guilty on each count of the indictment dated 9 May 2017 and enter a verdict of acquittal on each count.
Catchwords:
CRIME – appeals – appeal against conviction – unreasonable verdict – offences contrary to s 1307(1) of the Corporations Act 2001 (NSW) – sham agreement – whether sufficient evidence of the parties’ intentions and knowledge to convict – whether Crown able to exclude a particular hypothesis beyond reasonable doubt
CRIME – appeals – appeal against conviction – miscarriage of justice – prosecutor’s closing address – rhetorical questions – obligation of prosecutor – references to “no evidence” – reversal of onus of proof
CRIME – appeals – appeal against conviction – miscarriage of justice – written summing up – whether trial judge’s summing up presented the case for each party in a fair and balanced manner
CRIME – appeals – appeal against conviction – error of law – evidence – relevance – opinion evidence – whether trial judge erred in admitting evidence
CRIME – appeals – appeal against conviction – error of law – evidence – relevance – authenticity of a document – whether trial judge erred in refusing to admit evidence – National Australia Bank Ltd v Rusu not followed
CRIME – appeals – appeal against conviction – error of law – jury directions – change in Crown case – definition of “false” in the context of sham – direction on sham – direction as to who was the directing mind of a company
CRIME – appeals – appeal against conviction – error of law – jury directions – question trail which was said to require “yes” or “no” answers – direction that the jury needed only to be satisfied that the Crown case was reasonable – reversal of the burden of proof
CRIME – appeals – appeal against conviction – error of law – whether trial judge erred in refusing to give a Mahmood direction
CRIME – appeals – appeal against conviction – verdict of acquittal substituted
[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 Gregg v R
Sign in free to access the full text
Details
AGLC
Gregg v R [2020] NSWCCA 245
Case
[2020] NSWCCA 245
Decision Date
CaseChat Overview and Summary
The appeal in Gregg v R was brought against the conviction of the appellant, who had been found guilty by a jury of offences under section 1307(1) of the Corporations Act 2001 (NSW), concerning sham agreements. The central issue was whether the evidence presented at the trial was sufficient to establish the appellant's intent and knowledge regarding the sham agreements beyond reasonable doubt. The appeal also raised concerns about whether the Crown could exclude certain hypotheses beyond reasonable doubt and whether the trial judge correctly admitted and excluded specific pieces of evidence.
The court examined several legal issues, including whether the trial judge's summing up to the jury was fair and balanced, and whether the prosecutor's closing address contained any prejudicial remarks that might have affected the jury's impartiality. Additionally, the court considered if there were any errors in the admission or exclusion of evidence, particularly opinion evidence and the authenticity of certain documents. The court also scrutinised the jury directions given by the trial judge, particularly in light of changes in the Crown's case and the definition of "false" in the context of sham agreements.
In its reasoning, the court found several significant errors in the trial process. The prosecutor's closing address was deemed prejudicial, as it included rhetorical questions and references to "no evidence," which the court believed could have reversed the onus of proof and undermined the presumption of innocence. The trial judge's summing up was also found to be inadequate as it did not present the case for each party in a fair and balanced manner. Furthermore, the court held that the trial judge erred in both admitting and excluding certain pieces of evidence, leading to a potential miscarriage of justice. The jury directions were also found to be inadequate, particularly in light of the change in the Crown's case and the definition of "false" in the context of sham agreements.
Consequently, the appeal was allowed, and the convictions were quashed. The verdict of acquittal was substituted in its place.