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Hill v The Queen

Hill v The Queen

Case [2017] NSWCCA 136 21 June 2017

Appeal

Amendment of Indictment

Statutory Construction

Evidence

Sentencing

Summing-up by Trial Judge

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Hill v R [2017] NSWCCA 136
Hearing dates: 31 May 2017
Date of orders: 21 June 2017
Decision date: 21 June 2017
Before: Hoeben CJ at CL at [1]
Johnson J at [2]
Bellew J at [3]
Decision:
1. The appeal against conviction is dismissed.
2. Leave to appeal against sentence is refused.
Catchwords:
CRIMINAL LAW – Appeal – Practice and Procedure – Amendment of indictment – Where appellant was charged with 7 counts of fraudulent misappropriation of money paid to him on particular terms – Where some counts in the indictment originally presented alleged that the money had been received by the appellant from a superannuation fund – Where trial judge allowed the Crown to amend those counts by substituting the name of an individual for the name of the superannuation fund – Whether trial judge erred in doing so – Whether the appellant was unfairly prejudiced by the amendment

CRIMINAL LAW – Appeal – Statutory Construction - Where appellant was charged with 7 counts of fraudulent misappropriation of money paid to him on particular terms – Where the counts in the indictment alleged in each case that the money the subject of the misappropriation had been received by the appellant on terms which required him to pay it towards “seed capital” in house and land packages in Queensland – Whether a charge pleaded in those terms disclosed an offence known to the law – Whether it was an element of the offence that the Crown prove that the money was received on terms requiring to be paid to a particular person

CRIMINAL LAW – Appeal – Where appellant was charged with 7 counts of fraudulent misappropriation of money paid to him on particular terms – Where the Crown relied upon evidence of individual investors in support of each count – Where the Crown also relied upon documentary evidence to support the various counts - Whether a so-called “Murray” direction was required in those circumstances

CRIMINAL LAW – Appeal – Where appellant was charged with 7 counts of fraudulent misappropriation of money paid to him on particular terms – Where Crown did not rely upon tendency evidence and had not served any tendency notice – Where a tendency evidence direction was nevertheless sought by counsel for the accused – No direction given - Whether error on the part of the trial judge in failing to give such direction

CRIMINAL LAW – Appeal – Summing-up by trial judge - Where appellant was charged with 7 counts of fraudulent misappropriation of money paid to him on particular terms – Where appellant asserted a number of errors arising from the summing-up of the trial judge – Where trial counsel sought no further direction at the time of the trial when specifically given an opportunity to do so by the trial judge – Application of rule 4 of the Criminal Appeal Rules – Duty upon trial counsel…

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 Hill v The Queen

Details

AGLC: Hill v The Queen [2017] NSWCCA 136
Case: [2017] NSWCCA 136
Decision Date: 21 June 2017

CaseChat Overview and Summary

Hill appealed against his conviction and sentence for seven counts of fraudulent misappropriation of money. The trial judge had allowed the Crown to amend certain counts in the indictment, which Hill argued prejudiced his defence. The court was required to determine whether the trial judge's decision to allow the amendment was correct and whether Hill was unfairly prejudiced by the amendment. Additionally, the court had to consider whether the terms of the charges were sufficient to disclose an offence under the law, whether a "Murray" direction was necessary, and whether the trial judge erred in not giving a tendency evidence direction. Hill also claimed that the summing-up by the trial judge contained errors, and that the verdicts on certain counts were unsafe and unsatisfactory. Finally, Hill argued that the sentencing judge did not adequately consider the delay between the offences and the trial as a mitigating factor.

The court found that the trial judge did not err in allowing the amendment to the indictment, and that Hill was not unfairly prejudiced by the amendment. The court held that the terms of the charges were sufficient to disclose an offence under the law and that a "Murray" direction was not necessary. The court also found that there was no error in the trial judge's failure to give a tendency evidence direction. Regarding the summing-up, the court found that Hill's trial counsel had not sought any further direction at the time of the trial, and thus the appeal on this point was not valid under rule 4 of the Criminal Appeal Rules. The court held that it was open to the jury to be satisfied beyond reasonable doubt that the counts in question were established. Finally, the court found that the sentencing judge had taken the delay into account, and that Hill had not discharged the onus of establishing the specific asserted effects of delay.

The court dismissed Hill's appeal against his conviction and sentence. The appeal against sentence was also dismissed, as the court found that the sentencing judge had properly considered the delay between the offences and the trial. The court held that there was no basis upon which to assert that the sentencing judge failed to give proper weight to the delay. The appeal against sentence was therefore refused.

The court's final orders were to dismiss the appeal against conviction and sentence, and to refuse leave to appeal against sentence.

Orders