Regina v Sydney Thomas Finnie - [1999] NSWCCA 329

CITATION: Regina v Sydney Thomas FINNIE [1999] NSWCCA 329

FILE NUMBER(S): CCA 60334/97

HEARING DATE(S): 19 October 1999

JUDGMENT DATE:
19 October 1999

PARTIES :

Regina
Sydney Thomas Finnie

JUDGMENT OF: Sully J at 1; Hulme J at 24; Hidden J at 25

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 93/11/0801

LOWER COURT JUDICIAL OFFICER: Hosking DCJ

COUNSEL: R. D. Ellis - Crown
In person - Appellant

SOLICITORS: S. E. O'Connor - Crown

CATCHWORDS:

DECISION: Appeal against conviction dismissed.

IN THE COURT OF
CRIMINAL APPEAL
60334/97
SULLY J
HULME J
HIDDEN J
19 October 1999

REGINA v Sydney Thomas FINNIE
JUDGMENT
1 HIS HONOUR: On 11 June 1997, Mr Sydney Thomas Finney, the appellant, was presented for trial in the District Court at Sydney before his Honour Judge W Hosking QC. The appellant was so presented upon an indictment charging that he had, on or about 19 July 1991 at North Sydney, obtained for himself a cheque with intent to obtain it, and that in the course of obtaining the cheque he had made statements particularised in the charge and being false statements. The appellant pleaded not guilty and he was put accordingly upon his trial. 2 After a trial lasting for a few days the jury found the appellant guilty as charged. He was sentenced thereupon to imprisonment for nine months to be served by way of periodic detention. No present application is made respecting the sentence thus imposed, and no more need be said about it. 3 The appellant's present challenge is to his conviction. Four grounds of appeal have been notified and it will be necessary to return to each of them presently. Before doing that it is expedient to say something about the relevant facts. They fall within a small compass and are, put simply, as follows. 4 An application was made to a finance company for finance in connection with the purchase of a motor vehicle. The application was supported by a statutory declaration. The declaration contained statements which were manifestly false; and the contrary was not asserted at trial. The signatory of the declaration purported to be the appellant. The real issue at trial was whether the signature on the declaration was indeed the authentic signature of the appellant, or whether it was a forgery placed there by a man named Fowler. Various other matters were canvassed during the course of the trial, but in the end that was the issue of substance that was left, and in my opinion correctly left, to the jury. 5 In the opening paragraphs of the summing-up the learned trial Judge put to the jury this direction:

"In a nutshell, if the Crown cannot satisfy you beyond reasonable doubt that they are the accused's two signatures on the right-hand side of exhibit 3, you go no further. You would stop there and then and you would acquit the accused. On the other hand, if you are satisfied beyond reasonable doubt that those signatures were put…

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.

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Details

Case: [1999] NSWCCA 329
Decision Date: 19 October 1999

CaseChat Overview and Summary

Sydney Thomas Finnie, the appellant, appealed against his conviction and sentence in the District Court. The District Court had found the appellant guilty of charges related to obtaining a cheque through deception. The appellant raised four grounds of appeal, which were reviewed by the Court of Criminal Appeal. The primary issue before the Court was whether there had been any errors in the trial that would warrant a new trial or a reduction in the sentence.

The Court examined each ground of appeal. The first two grounds concerned the evidence of a handwriting expert, Mr. Eastman. The appellant argued that the trial judge erred in accepting Mr. Eastman's expertise and in not requiring him to explain his methodology. However, the Court found that the trial judge adequately directed the jury on the weight to be given to Mr. Eastman's evidence and that the appellant's cross-examination did not challenge the expert's qualifications. Therefore, the first two grounds of appeal were dismissed.

The third ground of appeal focused on the trial judge's summing up regarding the credibility of certain witnesses, particularly Mr. Fowler and Mr. Everingham. The Court found that the trial judge correctly instructed the jury on the assessment of witness credibility and that the jury was free to decide the weight to be given to the evidence of these witnesses. Consequently, the third ground of appeal was also dismissed.

The final ground of appeal was based on new forensic evidence that had emerged after the trial. The appellant presented evidence from another document examiner, Mr. John Gore, who claimed that the signatures in question were forgeries. The Court noted that the appellant had the opportunity to present this evidence at trial and that there were unanswered questions regarding why it was not used. However, the Court concluded that the appellant had not demonstrated a miscarriage of justice sufficient to warrant a new trial.

The Court of Criminal Appeal found that the appeal against the conviction should be dismissed and upheld the original sentence. The judges noted that while the sentence seemed lenient, it was not a matter properly before the Court in the appeal against conviction. The Court ordered the appellant to commence serving the unexpired portion of his sentence.

Orders