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Martorano v The King

Martorano v The King

Case [2025] NSWCCA 152 29 September 2025

Appeal

Jurisdiction

Miscarriage of Justice

Admissibility of Evidence

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Martorano v R [2025] NSWCCA 152
Hearing dates: 15 September 2025
Date of orders: 29 September 2025
Decision date: 29 September 2025
Before: Bell CJ at [1];
Free JA at [78];
McGuire J at [79].
Decision:
Appeal dismissed.

Catchwords:
CRIME – appeals – appeal against conviction – irregularity in criminal trial – materiality – miscarriage of justice – where criminal record of appellant’s accountant was sought to be tendered but not admitted – no irregularity disclosed – any irregularity was not material – no miscarriage of justice
CRIME – appeals – appeal against conviction – materiality – where trial judge upheld an objection to questioning of a Federal Agent which called for speculation – no error disclosed

Legislation Cited:
Crimes Act 1914 (Cth) ss 20(1)(b)
Criminal Appeal Act 1912 (NSW) ss 5(1)(b), 6(1)
Criminal Code Act 1995 (Cth) ss 135.1(5), 11.2A(1)
Evidence Act 1995 (NSW) s 191

Cases Cited:
Astill v R [2024] NSWCCA 118
Baini v R (2012) 246 CLR 469; [2012] HCA 59
Brawn v R (2025) 99 ALJR 872; [2025] HCA 20
Dragojlovic v R (2013) 40 VR 71; [2013] VSCA 151
Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15
Hamide v R [2019] NSWCCA 219
Hamilton (a pseudonym) v R (2021) 274 CLR 531; [2021] HCA 33
Hofer v R (2021) 274 CLR 351; [2021] HCA 36
Mahmood v Western Australia (2008) 232 CLR 397; [2008] HCA 1
MDP v R (2025) 99 ALJR 969; [2025] HCA 24
Nudd v R (2006) 80 ALJR 614; [2006] HCA 9
R v Strawhorn (2008) 19 VR 101; [2008] VSCA 101
Regina v Yeo [2005] NSWCCA 49
Weiss v R (2005) 224 CLR 300; [2005] HCA 81
Wilde v R (1988) 164 CLR 365; [1988] HCA 6
Zhou v R [2021] NSWCCA 278

Texts Cited:
Judicial Commission of New South Wales, Criminal Trial Courts Bench Book

Category: Principal judgment
Parties: Robert Frank Martorano (Appellant)
Crown (Respondent)
Representation:
Counsel:
J Stratton SC with M Coroneos (Appellant)
P McDonald SC with D Bhutani (Respondent)
Solicitors:
Justinian Legal (Appellant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2021/00307560
Publication restriction: N/A
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

27 March 2024

Before:

Girdham SC DCJ

File Number(s):

2021/307560

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 27 March 2024, Mr Robert Frank Martorano (the Appellant) was convicted by a jury of the offence of dishonestly causing a loss to the Commonwealth, knowing or believing that the loss would occur, contrary to s 135.1(5) of the Criminal Code Act 1995 (Cth) (the Criminal Code). His co-accused, Mr Steven Davies, was found not guilty of the same offence. The Appellant was sentenced to two years and six months’ imprisonment, but is due for release on recognizance after…

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 Martorano v The King

Details

AGLC: Martorano v The King [2025] NSWCCA 152
Case: [2025] NSWCCA 152
Decision Date: 29 September 2025

CaseChat Overview and Summary

The case of Martorano v The King involved the appellant's appeal against his conviction. The central dispute was whether any irregularities during the trial amounted to a miscarriage of justice. The case was heard in the High Court of Australia. The appellant argued that the exclusion of his accountant's criminal record and the trial judge's decision to uphold an objection against a question posed to a Federal Agent constituted irregularities that led to a miscarriage of justice.

The court had to determine if the exclusion of the appellant's accountant's criminal record constituted an irregularity that was material enough to cause a miscarriage of justice. Additionally, the court had to examine whether the trial judge's decision to uphold an objection to a question posed to a Federal Agent, which required speculation, was an error. The appellant argued that these irregularities significantly impacted his trial's fairness and integrity.

The High Court held that there was no irregularity in the exclusion of the accountant's criminal record, and even if there was, it was not material enough to cause a miscarriage of justice. Furthermore, the court found no error in the trial judge's decision to uphold the objection to the speculative question posed to the Federal Agent. The court concluded that the trial's outcome was not influenced by these alleged irregularities and that the appellant's conviction was therefore upheld.

The court dismissed the appeal, affirming the appellant's conviction. The judges found no grounds for a new trial, as the alleged irregularities did not impact the trial's fairness and integrity.

Orders