R v Cornell

[2015] NSWCCA 258

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

R v Hiba CORNELL [2015] NSWCCA 258

Hearing dates:

27 May 2015

Date of orders:

24 September 2015

Decision date:

24 September 2015

Before:

Hoeben CJ at CL   at [1]
Johnson J   at [2]
Beech-Jones J   at [3]

Decision:

(1)   Leave to raise grounds 1, 2 and 3 of the conviction appeal be granted;

 

(2)   The appeal against conviction be dismissed;

 

(3)   Leave to appeal against sentence be granted; and

 (4)   The appeal against sentence be dismissed.

Catchwords:

CRIMINAL LAW – appeal against conviction and sentence – appellant was a bank officer – appellant found to be part of scheme to defraud bank to provide loan funds to purchase property for inflated sale price –false employment documents submitted in support of loan application – appellant found to have falsely certified employment documents as genuine – one count of use false instrument under former Crimes Act s 301(2) and one count of make false statement with intention to obtain an advantage under former Crimes Act s 178BB – Conviction Appeal – prior to empanelment trial judge ruled that aspects of appellant’s approval of earlier loans were admissible for tendency evidence and other aspects admissible for coincidence purposes – Crown addressed jury as though all aspects of the loan applications admissible for coincidence purposes – no reference to tendency evidence – no complaint by Counsel for appellant at trial – trial judge summed up in a manner consistent with Crown address and inconsistent with pre-trial ruling – whether departures from pre-trial ruling occasioned a miscarriage of justice – no unfairness demonstrated – Counsel for Appellant embraced departure from pre-trial ruling – whether departure from pre-trial ruling constituted wrong decision on any question of law – whether pre-trial ruling “binding” – whether evidence properly admissible for coincidence purposes – held no miscarriage of justice – no wrong decision on any question of law – Conviction Appeal – whether verdict unreasonable – Crown case strong without coincidence evidence – Crown case overwhelming with use of coincidence evidence – ground rejected – Sentencing – appellant sentenced to five years imprisonment consisting of two years non-parole and balance of term of three years – whether sentencing judge erred in assessing level of involvement in fraudulent scheme having regard to what was revealed by evidence of appellant’s involvement in other loan applications – no error demonstrated – accepted that hardship occasioned to appellant’s daughter from separation from appellant amounted to exceptional circumstances – substantial reduction in non-parole period – whether sentencing judge erred in failing to also reduce head sentence – no House v R error shown – appeal against conviction and sentence dismissed.

Legislation Cited:

- Crimes Act 1900 – s 178BB, s 301
- Criminal Appeal Act 1912 – s 5(1), s 6(1)
- Criminal Procedure Act 1986 – s 130A
- Evidence Act 1995 – s 95, s 97(1), s 98(1), s 192A
- Statute Law (Miscellaneous Provisions) Act (No…