Johnson J at [1] Harrison J at [444] Adamson J at [445]
Decision:
With respect to the conviction and sentence of the Appellant following a trial before Armitage ADCJ in 2007:
(i) appeal against conviction dismissed;
(ii) leave to appeal against sentence granted, but appeal dismissed.
With respect to the conviction and sentence of the Appellant following a trial before Knox DCJ in 2009:
(i) appeal against conviction dismissed;
(ii) leave to appeal against sentence granted, but appeal dismissed.
Catchwords:
CRIMINAL LAW - conviction appeal - Appellant convicted in 2009 after trial by judge alone - Crown alleged Appellant falsely represented himself to be a solicitor - Appellant deceived a vulnerable victim - convicted of obtain benefit by deception (one count), obtain benefit by making false statement (three counts) and use false instrument (one count) - Appellant acquitted of further count of obtain benefit by deception - whether inconsistent verdicts in relation to obtain benefit by deception counts - whether counts alleging obtain benefit by making false statement charged offences not known to law or were bad for duplicity - whether defect in terms of use false instrument count - ground based upon suggested fresh or new evidence - all conviction grounds rejected - conviction appeal dismissed
CRIMINAL LAW - sentence appeal - whether error in use of evidence of adverse impact of offences upon victim - whether error in use made of Appellant's pretence to be solicitor - whether error in approach to theoretical prospect of summary disposal - whether error in approach to delay between arrest and sentence - whether error in approach to Appellant's claimed assistance to authorities - claim of manifest excess - objective gravity of offences - no sentence ground established - sentence appeal dismissed
CRIMINAL LAW - conviction appeal - Appellant convicted in 2007 after jury trial - one count of obtain benefit by deception and four counts of use false instrument - Crown alleged elaborate deception by Appellant pretending to be a solicitor - use of false documents to dishonestly obtain loan advance secured by mortgage over property of innocent victim - claim that Crown case based upon fabricated evidence and incompetent police investigation - whether trial Judge erred in failing to direct acquittal - claim of error in admission of identification evidence - claim that trial defence counsel failed to advance arguments and adduce evidence exculpatory of Appellant - ground based upon suggested fresh or new evidence - claim that verdicts unreasonable - all conviction grounds rejected - conviction appeal dismissed
CRIMINAL LAW - sentence appeal - concurrency and accumulation - special circumstances - claim of manifest excess - objective gravity of offences - substantial moral culpability of Appellant - sentence appeal dismissed
[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.
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Details
AGLC
Miller v R [2014] NSWCCA 34
Case
[2014] NSWCCA 34
Decision Date
CaseChat Overview and Summary
In Miller v R, the appellant was convicted in 2009 after a trial by judge alone for falsely representing himself as a solicitor and deceiving a vulnerable victim. He was found guilty of obtaining a benefit by deception, making false statements, and using a false instrument. The appellant was acquitted of an additional count of obtaining a benefit by deception. The case before the court involved a series of legal issues regarding the consistency of the verdicts, the validity of the charges, and potential defects in the terms of the charges. The court was also asked to consider whether there was fresh or new evidence that should have been taken into account during the appeal.
The court examined the appellant's arguments that the verdicts were inconsistent, that the charges of obtaining a benefit by making false statements were either unknown to law or were bad for duplicity, and that there was a defect in the terms of the use false instrument charge. Additionally, the court considered whether there was fresh or new evidence that warranted a different outcome. However, the court found that none of these grounds were persuasive, and rejected all the arguments put forward by the appellant. The conviction appeal was dismissed.
The court also reviewed the sentence appeal, which raised issues about the use of evidence regarding the impact of the offences on the victim, the appellant's pretence to be a solicitor, the theoretical prospect of summary disposal, the delay between arrest and sentence, and the appellant's claimed assistance to authorities. The court considered whether the sentence was manifestly excessive, the objective gravity of the offences, and the appellant's moral culpability. Ultimately, the court found no merit in the grounds for appeal and dismissed the sentence appeal.