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R v Boskovitz

R v Boskovitz

Case [1999] NSWCCA 437 20 December 1999

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CITATION: R v. Boskovitz [1999] NSWCCA 437

FILE NUMBER(S): CCA 060633/98

HEARING DATE(S): 14 April 1999, 7 May 1999

JUDGMENT DATE:
20 December 1999

PARTIES :

Regina v. Katy Rachelle Boskovitz

JUDGMENT OF: Wood CJatCL at 1; Hidden J at 2; Smart AJ at 3

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 93/11/1052; 94/11/0342

LOWER COURT JUDICIAL OFFICER: Shillington DCJ

COUNSEL: M A McGregor QC (Appellant)
T Game SC and D Jordan (Crown Respondent)

SOLICITORS: Jeffreys & Associates (Appellant)
Commonwealth Director of Public Prosecutions (Respondent)

CATCHWORDS: Criminal Law - knowingly making false statements with intent to obtain financial advantage; senior executive and company directors' statements to obtain and maintain credit facilities; false impression created; admissibility of prejudicial evidence to establish knowledge; adequacy of summing up; sentencing; relationship of public deterrence and subjective factors; duties of directors and company executives.; overwhelming Crown case

ACTS CITED: Crimes Act 1900, s. 178BB
Evidence Act 1995, ss. 56, 101, 137

CASES CITED:
Lock (1997) 91 A Crim R 356
AH 98 A Crim R 71
Fraser CCA, unreported 10 August 1998
Domican (1992) 173 CLR 555
Zorad (1990) 19 NSWLR 91
Piazza (1997) 94 A Crim R 459
Maslen v. Shaw (1995) 79 A Crim R 199
Kylsant (1932) 1 KB 442
Aaron's Reefs Ltd v. Twiss (1896) AC 273
McDonald (FCA) (1994) 71 A Crim R 370
Corbett (1991) 52 A Crim R 112
Pantano (1990) 49 A Crim R 328
Hawkins (1989) 45 A Crim R 430

DECISION: Appeal against conviction on each count dismissed. Leave to appeal against sentences granted. Appeal against sentences allowed, sentences quashed. In lieu of the sentences imposed, the appellant is sentenced on each count to a minimum term of 2 years 3 months starting on 2 October 1998 and ending on 1 January 2001 and an additional term of 1 year 9 months starting on 2 January 2001.

IN THE COURT OF
CRIMINAL APPEAL

60633/98
Wood CJ at CL
Hidden J
Smart AJ
Monday 20 December 1999

Headnote

The appellant was convicted of 3 counts alleging that, with intent to obtain a financial advantage for a company, she made a statement which was false in a material particular and which she knew to be false. The false statements, which included creating a false impression, were made by her to three banks to obtain and maintain credit facilities and concerned the financial position of Linter Group Ltd of which she was a senior executive and director.
Held: (1) The evidence of Mr Travers which showed her knowledge and involvement in the matters in question was admissible despite its prejudicial effect. The danger of unfair prejudice did not outweigh its probative value. Further, as the evidence was directly relevant to a fact in issue it was admissible and ss. 97 and 101 of the Evidence Act were inapplicable.
(2) The summing up was not, in the circumstances, inadequate. It put the defence case sufficiently on each count, having regard to the facts in issue.
(3)…

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 R v Boskovitz

Details

AGLC: R v Boskovitz [1999] NSWCCA 437
Case: [1999] NSWCCA 437
Decision Date: 20 December 1999

CaseChat Overview and Summary

The case of R v Boskovitz involved the defendant, a senior executive of a company, and his co-accused, directors of the same company. They were charged with making false statements knowingly, with intent to obtain financial advantage. The dispute centred on whether the defendants intentionally created a false impression to secure and maintain credit facilities. The case was heard in the High Court of Australia.

The primary legal issues before the court were whether the false statements were made with the requisite intent and knowledge, and whether the prejudicial evidence presented was admissible to establish this intent. Additionally, the court had to determine whether the summing up by the trial judge adequately covered the essential matters and whether the sentencing was appropriate in light of the overwhelming evidence against the defendants. The defendants' arguments also included the adequacy of their roles as directors and executives in relation to the alleged offences.

The High Court found that the defendants had indeed made false statements with the intent to secure financial advantage. The court held that the prejudicial evidence was admissible to prove the knowledge and intent behind the false statements. The summing up was deemed adequate, as it covered all essential matters for the jury's consideration. In sentencing, the court emphasised the importance of public deterrence, balanced against subjective factors such as the defendants' roles and responsibilities within the company. The High Court ultimately upheld the convictions and sentences imposed by the lower court, given the strength of the evidence against the defendants.

Orders