Regina v George Adler - [2002] NSWCCA 180

CITATION: Regina v George Adler [2002] NSWCCA 180

FILE NUMBER(S): CCA 60005/01

HEARING DATE(S): 11 March 2002

JUDGMENT DATE:
20 May 2002

PARTIES :

George Adler (Appellant)
Crown (Respondent)

JUDGMENT OF: Spigelman CJ at 1; Barr J at 2; Bergin J at 3

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 98/11/0107

LOWER COURT JUDICIAL
OFFICER : Shadbolt DCJ

COUNSEL : Mr C Jeffreys, Solicitor (Appellant)
Mr R Hulme (Respondent)

SOLICITORS: Jeffreys & Associates (Appellant)
S E O'Connor (Respondent)

CATCHWORDS: Appellant convicted of 11 counts of dishonestly obtaining by deception cheques totalling $69,380 (s.178BA Crimes Act 1900(NSW)) - An essential element of offences charged was an alleged representation that the money was for an investment in shares - Trial Judge directed the jury to entirely dismiss from their minds any thoughts of the money changing hands as a result of a loan - Whether the jury should have been able to consider a loan as a possible rational alternative hypothesis.

LEGISLATION CITED: Criminal Appeal Act 1912 (NSW)

CASES CITED:
Barca v The Queen (1975) 133 CLR 82
Festa v The Queen (2001) 76 ALJR 291
Gilbert v The Queen (2000) 201 CLR 414
KRM v The Queen (2001) 75 ALJR 550
R v Al-Khair, unreported NSWCCA, Gleeson CJ, Priestley JA and Wood J, 20 June 1994.
Whittaker v The Queen (1993) 68 A Crim R 476

DECISION: See para 138

- 1 -IN THE COURT OF

60611/01
SPIGELMAN CJ
BARR J
BERGIN J

20 MAY 2002

R v George ADLER

JUDGMENT

1 SPIGELMAN CJ: I agree with Bergin J.

2 BARR J: I agree with Bergin J.

3 BERGIN J: The appellant, George Adler, appeals from convictions and sentences on 11 counts of dishonestly obtaining by deception cheques totalling $69,380 (178BA Crimes Act 1900). The deception in each count was that the appellant represented to Vera Antonia Konsuo (Ms Konsuo) that the money would be used to purchase shares in a company, Natfibre Limited (Natfibre), and at the time the appellant made such representations he knew them to be false because shares in Natfibre were not available for sale to the public.

4 On 24 August 2000 the appellant pleaded not guilty to each count. The evidence concluded on 8 September 2000 and the trial judge summed up on 11 and 12 September 2000. The jury retired on 12 September and returned verdicts of guilty on each count on 13 September 2000.

5 On 24 September 2000 the appellant was sentenced to four years imprisonment on each count to be served concurrently but cumulatively upon the sentence the appellant was then serving. It was ordered that the sentence commence on 31 May 2002 and expire on 30 May 2006, with a non-parole period to expire on 30 May 2005.

6 During the period between 1 October 1996 and 1 November 1996 when each of the offences were committed the appellant was a prisoner in the John Moroney Correctional Centre (JMCC).

7 The Crown case was…

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 Regina v George Adler

Details

AGLC: Regina v George Adler [2002] NSWCCA 180
Case: [2002] NSWCCA 180
Decision Date: 20 May 2002

CaseChat Overview and Summary

Regina v George Adler concerned an appeal against a conviction on 11 counts of dishonestly obtaining by deception cheques totalling $69,380 under section 178BA of the Crimes Act 1900 (NSW). The appellant, George Adler, was convicted based on an alleged representation that the money was intended for an investment in shares. The dispute centred around the jury's ability to consider an alternative hypothesis that the money was obtained through a loan rather than an investment scheme.

The legal issue before the court was whether the jury should have been permitted to consider a loan as a rational alternative hypothesis to the one presented by the prosecution. The appellant argued that the trial judge's direction to the jury to entirely dismiss any thoughts of the money changing hands as a result of a loan was erroneous and prejudicial. The court was required to determine whether this direction deprived the appellant of a fair trial by preventing the jury from considering an alternative hypothesis that could have negated the essential element of the deception.

The court considered that the direction given by the trial judge was appropriate in the context of the case. It held that the jury should focus on the representation made by the appellant, which was central to the charges. The court concluded that the direction did not prejudice the appellant's right to a fair trial as it was not necessary for the jury to consider every conceivable alternative hypothesis. The court found that the trial judge's direction was consistent with the established legal principles governing the consideration of alternative hypotheses by juries.

As a result, the appeal was dismissed. The conviction and sentence of the appellant on all 11 counts of dishonestly obtaining by deception were upheld. The court's decision confirmed that the trial judge's direction was correct and did not prejudice the appellant's right to a fair trial.

Orders