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R v Naidu

R v Naidu

Case [2008] QCA 130 30 May 2008

Appeal

Breach of Trust

Fraud

Miscarriage of Justice

Admissibility of Evidence

Criminal Law

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Naidu [2008] QCA 130

PARTIES:

R
v
NAIDU, Shanta Mani
(appellant)

FILE NO/S:

CA No 129 of 2007
DC No 1253 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

30 May 2008

DELIVERED AT:

Brisbane

HEARING DATE:

1 February 2008

JUDGES:

McMurdo P, Fraser JA and Mackenzie J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal Dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED – where the appellant was made the sole attorney of the complainant’s enduring power of attorney – where several transactions occurred that were particularised by the appellant as being gifts – where the Crown contended that the appellant had dishonestly taken advantage of the complainant – where the yield from the transactions was $371,848 – where the Crown’s case relied upon establishing that the complainant was not capable of making the relevant decisions about his assets and finances – where there was evidence from various witnesses attesting to the complainant’s capacity – where some evidence was contradictory – where the appellant was convicted after a trial by jury on two counts of fraud under s 408C(1)(d) of the Criminal Code 1899 (Qld) – where the appellant contended that the convictions were unreasonable, or could not be supported having regard to the evidence – whether it was open to the jury to be satisfied beyond reasonable doubt that the appellant was not capable of making the relevant decisions about his assets and finances – whether the evidence raised a reasonable doubt about the appellant’s guilt

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where expert opinion evidence was given – where the expert relied upon material that was not proved and identified – where that evidence was inadmissible hearsay – where there was no objection by the appellant’s trial counsel – where the failure to object was clearly explicable on the basis that it avoided significant forensic disadvantages – whether a miscarriage of justice resulted from the admission of the inadmissible evidence

Criminal Code 1899 (Qld), s 408C(1)(d), s 408C(2)(d), s 668E(1)

Ali v R (2005) 79 ALJR 662; [2005] HCA 8, cited
M v R (1994) 181 CLR 487; [1994] HCA 63, cited
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, cited; [2001] NSWCA 305
MFA v R (2002) 213 CLR 606; [2002] HCA 53, cited
R v Lindsay [1963] Qd R 386, cited
R v Ping [2006] 2 Qd R 69; [2005] QCA 472, cited
R v S [2002] QCA 167, cited
Suresh…

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 Naidu

Details

AGLC: R v Naidu [2008] QCA 130
Case: [2008] QCA 130
Decision Date: 30 May 2008

CaseChat Overview and Summary

The case of R v Naidu involved the appellant who was the sole attorney of the complainant's enduring power of attorney. The Crown alleged that the appellant had dishonestly taken advantage of the complainant through several financial transactions that amounted to a total of $371,848. The appellant was convicted by a jury on two counts of fraud under the Queensland Criminal Code. The appellant contested the conviction, arguing that it was unreasonable or could not be supported by the evidence. The central legal issue before the court was whether the jury was justified in concluding beyond reasonable doubt that the appellant had taken advantage of the complainant, given the conflicting evidence about the complainant's capacity to make decisions about his assets and finances.

The court examined the evidence and noted that while there was testimony attesting to the complainant's capacity, there were also contradictions. The jury, as the trier of fact, was entitled to assess the credibility and weight of the evidence presented. The court found that the evidence was sufficient for the jury to conclude that the appellant had acted dishonestly and taken advantage of the complainant. Therefore, the court rejected the argument that the conviction was unreasonable or insupportable. The court also considered whether the admission of inadmissible expert evidence constituted a miscarriage of justice. Despite the evidence being hearsay and not properly identified, the court concluded that the failure to object to this evidence was explicable and that no miscarriage of justice occurred as a result.

In light of the above, the court dismissed the appeal. The reasoning was that the jury had properly assessed the evidence and reached a conclusion that was supported by the evidence presented. The court held that the convictions were not unreasonable or insupportable, and that the admission of inadmissible evidence did not result in a miscarriage of justice. Consequently, the appeal was dismissed, and the original convictions were upheld.

Orders

Orders of the court

Appeal Dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Naidu [2008] QCA 130

Most Recent Citation

R v Ross [2010] QCA 63

Cases citing this decision · 9 of 9 shown

Hestbay Pty Ltd v One Sector Pty Ltd
[2024] QSC 180 Para 2

…ual assumptions which underpin an expert’s opinion renders the opinion liable to exclusion. As explained R v Naidu ,[4] “It is unquestionably [4] [2008] QCA 130 at [68]. See also the footnote to that paragraph; R v Gibson [2022] QCA 151 at [10]; Makita (Aust) Pty Ltd v Sprowles (2000) 52 NSWLR 705; and Sanrus Pty…
Greer v Greer
[2021] QCA 143 Para 9

…both identified by the expert and proved in evidence: see Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705 per Heydon JA at 743-4 [85]; R v Naidu [2008] QCA 130 per Fraser JA at [68]; Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 per Heydon J at 612-3 [64] to [65].…
Springfield City Group Pty Ltd v Pipe Networks Pty Ltd
[2020] QSC 395 Para 68

…(a) First, in Queensland at least, the proof of assumptions is a matter which goes to admissibility, not merely weight: see R v Naidu [2008] QCA 130 at [68] and the footnote thereto. (b) Second, the general rule identified by the High Court in Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 at [19] and [20] is that…
Sanrus Pty Ltd v Monto Coal 2 Pty Ltd (No 7)
[2019] QSC 241

…v Sprowles (2001) 52 NSWLR 705, considered Oztech Pty Ltd v Public Trustee of Queensland [2019] FCAFC 102, considered R v Naidu [2008] QCA 130, considered Sanrus Pty Ltd v Monto Coal 2 Pty Ltd (No 1) [2018] QSC 308, considered Sanrus Pty Ltd v Monto Coal 2 Pty Ltd (No 4) [2019] QSC 199, considered Sanrus Pty Ltd…
Sanrus Pty Ltd v Monto Coal 2 Pty Ltd (No 5)
[2019] QSC 210 Para 1

…This passage of the reasons of Heydon JA in Makita has been applied by the Queensland Court of Appeal on multiple occasions, including R v Naidu [2008] QCA 130 at [68]; R v Kleimeyer [2014] QCA 56 at [31]; R v Mackenzie [2016] QCA 277 at [37]; Woolworths Limited v Grimshaw [2016] QCA 274 at [24] and Beaven v Wagn…
Tringrove v Tasmania
[2014] TASCCA 7 Para 3

…v Lindsay [1963] Qd R 386 at 400–401; Williams v The Queen (2002) 11 Tas R 258; (2002) 133 A Crim R 317; R v Cook (2006) 95 SASR 201. In R v Naidu [2008] QCA 130 the Court of Appeal in Queensland applied the same principle to a charge of fraud. In that case the appellant, over a specified period, made several di…
Lawrie v Hwang
[2012] QSC 422 Para 1

…intention of obtaining the benefit of these moneys. In that regard, the plaintiffs relied by analogy on the test, considered in R v Shanta Mani Naidu [2008] QCA 130, [4], [5] which concerned a criminal charge of fraud.[58] [58]That case concerned a younger woman forming intimate relationship with older man suffer…
R v Rak
[2012] QCA 26 Para 1

…evident care taken by the jury in the deliberation upon the evidence, it cannot be said that there was a "miscarriage of justice". [33] See R v Naidu [2008] QCA 130 at [77] citing Suresh v The Queen (1998) 72 ALJR 769 per Hayne J at [65].…
R v Ross
[2010] QCA 63 Para 1

…rriage of justice occasioned by the admission of that inadmissible evidence.[4] [4] In addition to the authority cited earlier, see R v Naidu [2008] QCA 130 at [7], [78]-[82], [85], in which a similar conclusion was reached in an analogous case.…

View all 9 citing cases →

Cases cited in this decision · 12 of 12 shown

R v Ping
[2005] QCA 472

…6; [2002] HCA 53, cited R v Lindsay [1963] Qd R 386, cited R v Ping [2006] 2 Qd R 69; [2005] QCA 472, cited R v S [2002] QCA 167, cited Suresh v R (1998) 72 ALJR 769; [1998] HCA 23, cited TKWJ v R (2002) 212 CLR 124; [2002] HCA 46, cited COUNSEL: K A Mellifont for the appellant M J Copley for the respondent SOLIC…
Ali v The Queen
[2005] HCA 8 Para 1

…nce was wrongly admitted at trial.[9] [8] TKWJ v R (2002) 212 CLR 124 at [25]-[27]; [33]; [107]-[108]; [2002] HCA 46. [9] Ali v R (2005) 79 ALJR 662; [2005] HCA 8 at [9], [23] – [26], [99]; Suresh v R at [23], [56]-[58]; [65]; R v S [2002] QCA 167 at [19]-[20].…
MFA v The Queen
[2002] HCA 53 Para 1

…it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.[3] [3] MFA v R (2002) 213 CLR 606, at 614-615, 623-624; [2002] HCA 53; M v R (1994) 181 CLR 487, at 493; [1994] HCA 63.…
TKWJ v The Queen
[2002] HCA 46 Para 1

…where the complaint is that inadmissible evidence was wrongly admitted at trial.[9] [8] TKWJ v R (2002) 212 CLR 124 at [25]-[27]; [33]; [107]-[108]; [2002] HCA 46. [9] Ali v R (2005) 79 ALJR 662; [2005] HCA 8 at [9], [23] – [26], [99]; Suresh v R at [23], [56]-[58]; [65]; R v S [2002] QCA 167 at [19]-[20].…
Makita (Australia) Pty Ltd v Sprowles
[2001] NSWCA 305

…1994] HCA 63, cited Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, cited; [2001] NSWCA 305 MFA v R (2002) 213 CLR 606; [2002] HCA 53, cited R v Lindsay [1963] Qd R 386, cited R v Ping [2006] 2 Qd R 69; [2005] QCA 472, cited R v S [2002] QCA 167, cited Suresh v R (1998) 72 ALJR 769; [1998] HCA 23, cited…
Lewis v The Queen
[2001] HCATrans 43 Para 1

…mitted the jury to perform its function of determining the facts. [10] R v Fowler (1985) 39 SASR 440 at 442 – 443 per King CJ. [11]Cf Lewis v R (1987) 88 FLR 104 at 123; Ramsay v Watson (1961) 108 CLR 642 at 645…
Suresh v The Queen
[1998] HCA 23 Para 1

…dence of which the appellant complains have given rise to a “miscarriage of justice”. [7]See Suresh v R (1998) 72 ALJR 769 per Hayne J at [65]; [1998] HCA 23.…
Gordon v The Queen
[1996] HCATrans 271 Para 1

…J at [43]-[46], citing Makita (Australia) Pty Ltd v Sprowles at 729-742, Ramsay v Watson (1961) 108 CLR 642 at 648-649; [1961] HCA 65, and Gordon v R (1982) 41 ALR 64. The facts relied upon by the expert need not be identical with those proved but must be sufficiently like them if the opinion is to be probative: Ma…
M v the Queen
[1994] HCA 63 Para 1

…easonable doubt that the accused was guilty.[3] [3] MFA v R (2002) 213 CLR 606, at 614-615, 623-624; [2002] HCA 53; M v R (1994) 181 CLR 487, at 493; [1994] HCA 63.…
Ramsay v Watson
[1961] HCA 65 Para 1

…006] 2 Qd R 69 per Chesterman J at [43]-[46], citing Makita (Australia) Pty Ltd v Sprowles at 729-742, Ramsay v Watson (1961) 108 CLR 642 at 648-649; [1961] HCA 65, and Gordon v R (1982) 41 ALR 64. The facts relied upon by the expert need not be identical with those proved but must be sufficiently like them if t…
R v S
[2002] QCA 167 Para 1

…33]; [107]-[108]; [2002] HCA 46. [9] Ali v R (2005) 79 ALJR 662; [2005] HCA 8 at [9], [23] – [26], [99]; Suresh v R at [23], [56]-[58]; [65]; R v S [2002] QCA 167 at [19]-[20].…
Pty Ltd v Sprowles
636 F Supp 1419 Para 1

…ence is inadmissible if the opinion is not expressed upon a state of facts both identified and proved in evidence.[4] [4]See, eg , Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 per Heydon JA , particularly at [85] and at [70] quoting from the judgment of King CJ in R v Fowler (1985) 39 SASR 440 at 442, 443; R v…

Legislation cited in this decision · 0

No legislation cited in this case.

CITATION:	R v Naidu [2008] QCA 130
PARTIES:	R v NAIDU, Shanta Mani (appellant)
FILE NO/S:	CA No 129 of 2007 DC No 1253 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	30 May 2008
DELIVERED AT:	Brisbane
HEARING DATE:	1 February 2008
JUDGES:	McMurdo P, Fraser JA and Mackenzie J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal Dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED – where the appellant was made the sole attorney of the complainant’s enduring power of attorney – where several transactions occurred that were particularised by the appellant as being gifts – where the Crown contended that the appellant had dishonestly taken advantage of the complainant – where the yield from the transactions was $371,848 – where the Crown’s case relied upon establishing that the complainant was not capable of making the relevant decisions about his assets and finances – where there was evidence from various witnesses attesting to the complainant’s capacity – where some evidence was contradictory – where the appellant was convicted after a trial by jury on two counts of fraud under s 408C(1)(d) of the Criminal Code 1899 (Qld) – where the appellant contended that the convictions were unreasonable, or could not be supported having regard to the evidence – whether it was open to the jury to be satisfied beyond reasonable doubt that the appellant was not capable of making the relevant decisions about his assets and finances – whether the evidence raised a reasonable doubt about the appellant’s guilt CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where expert opinion evidence was given – where the expert relied upon material that was not proved and identified – where that evidence was inadmissible hearsay – where there was no objection by the appellant’s trial counsel – where the failure to object was clearly explicable on the basis that it avoided significant forensic disadvantages – whether a miscarriage of justice resulted from the admission of the inadmissible evidence Criminal Code 1899 (Qld), s 408C(1)(d), s 408C(2)(d), s 668E(1) Ali v R (2005) 79 ALJR 662; [2005] HCA 8, cited M v R (1994) 181 CLR 487; [1994] HCA 63, cited Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, cited; [2001] NSWCA 305 MFA v R (2002) 213 CLR 606; [2002] HCA 53, cited R v Lindsay [1963] Qd R 386, cited R v Ping [2006] 2 Qd R 69; [2005] QCA 472, cited R v S [2002] QCA 167, cited Suresh…