Page v The Queen - [2007] NSWCCA 175

New South Wales
Court of Criminal Appeal

CITATION: PAGE v R [2007] NSWCCA 175

HEARING DATE(S): 12 April 2007

JUDGMENT DATE:
21 June 2007

JUDGMENT OF: McClellan CJ at CL at 1; Howie J at 72; Hall J at 73

DECISION: 1. Appeal against conviction dismissed; 2. Leave to appeal against sentence granted but appeal dismissed.

CATCHWORDS: CRIMINAL LAW - Conviction and sentence appeal - conspiracy to defraud spanning 5 years - identification evidence - elderly victim living alone - whether indictment was flawed for latent duplicity - whether prosecution failed to distinguish between primary conspiracy and consequential conspiracies - whether directions on the elements of the offence were adequate - whether jury verdict unreasonable - sentencing - whether error in failing to exclude the alternate basis for conviction prior to determining culpability - whether error in taking into account overt acts of conspiracy

LEGISLATION CITED: Crimes Act 1900 (NSW)

CASES CITED: Cheung v The Queen (2001) 209 CLR 1
R v Hoar (1981) 148 CLR 32
R v Mok (1987) 27 A Crim R 438
Olbrich v The Queen (1999) 199 CLR 270

PARTIES: Joseph Nathan Page (Appl)
The Crown

FILE NUMBER(S): CCA 2006/2731

COUNSEL: G Bashir (Appl)
J A Girdham (Crown)

SOLICITORS: Hanby & Associates (Appl)
Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/11/0071

LOWER COURT JUDICIAL OFFICER: Phegan DCJ

LOWER COURT DATE OF DECISION: 29 March 2006

2006/2731

McCLELLAN CJ at CL
HOWIE J
HALL J
THURSDAY 21 JUNE 2007

PAGE, Joseph Nathan v R

Judgment

1 McCLELLAN CJ at CL: The appellant was tried on an indictment which charged that:

“Between on or about 10 December 1998 and 20 January 2004 at Balgowlah and elsewhere in the State of NSW, did conspire with an unknown person or persons to cheat and defraud Cynthia Lea Holcombe of sums of money.”

2 The indictment contained only one count being the common law offence.

3 Following his conviction the appellant was sentenced to a non-parole period of imprisonment for 2 years and 6 months (less 5 days) with an overall term of 5 years imprisonment less 5 days. He appeals his conviction and seeks leave to appeal his sentence.

The outline of the case

4 The facts which the Crown alleged comprised the conspiracy are unusual. In her opening the Crown Prosecutor told the jury that the Crown case was that there was an agreement between the appellant and others to defraud Ms Holcombe of money. The ruse was alleged to involve persuading Ms Holcombe that, in order to receive a payment from the conspirators, she would have to pay them money.

5 Ms Holcombe gave evidence that in about 1999 a man, aged about 60 years, came to her home alone and said that he could repair her roof. He said that he had been working next door and had noticed that her roof had a hole in it. He later returned and told Ms Holcombe that he had completed…

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 Page v The Queen

Details

AGLC: Page v The Queen [2007] NSWCCA 175
Case: [2007] NSWCCA 175
Decision Date: 21 June 2007

CaseChat Overview and Summary

The appellant, Page, appealed against his conviction and sentence for conspiracy to defraud spanning five years. The matter was heard in the High Court of Australia. The primary issues before the court were the sufficiency of the indictment, the adequacy of the directions given to the jury, and the propriety of the sentence. The appellant argued that the indictment was flawed for latent duplicity, that the prosecution failed to distinguish between primary and consequential conspiracies, and that the jury directions were inadequate. The appellant also contended that the jury's verdict was unreasonable, and that the sentence was excessive due to errors in the trial.

The court considered whether the indictment was properly framed and whether the prosecution had clearly distinguished between the primary conspiracy and any consequential conspiracies. The court found that the indictment was sufficient and that the prosecution had adequately distinguished between the primary conspiracy and any consequential conspiracies. The court also considered whether the jury directions were adequate and whether the jury's verdict was unreasonable. The court found that the jury directions were sufficient and that the jury's verdict was reasonable. The court further considered whether the sentence was properly imposed, specifically whether there was an error in not excluding the alternate basis for conviction prior to determining culpability and whether the sentence took into account overt acts of conspiracy. The court found that the sentence was properly imposed.

The High Court dismissed the appeal against conviction and sentence. The court found that the indictment was properly framed, that the prosecution had adequately distinguished between the primary and consequential conspiracies, and that the jury directions were sufficient. The court also found that the jury's verdict was reasonable and that the sentence was properly imposed. The appellant's conviction and sentence were upheld.

Orders