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…
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- AGLC
- Hill v The Queen [2017] NSWCCA 136
- Case
- [2017] NSWCCA 136
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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