(1) Pursuant to r 4 Criminal Appeal Rules (NSW), grant the applicant leave to raise ground 3(b) of the amended grounds of appeal filed on 30 November 2018; (2) Refuse the applicant leave under r 4 Criminal Appeal Rules (NSW) to raise grounds 1(a)-(d), 2(a)-(e) and 3(a) and (c); (3) Refuse the applicant leave under s 5(1)(b) Criminal Appeal Act to rely upon ground 4; (4) Appeal against conviction dismissed; (5) Leave to appeal against sentence refused.
Catchwords:
CRIME – Fraud – Conspired dishonestly to obtain financial advantage by deception – $1 million advance from Commonwealth Bank of Australia for purpose of acquiring shares in company – Applicant used advance to repay personal debt - s 192E Crimes Act 1900 (NSW).
CRIME – False information – Supply misleading information as director to the Australian Securities Exchange – Two false or misleading announcements - ss 1309 and 1311 Corporations Act 2001 (Cth).
CRIME – Falsification of books – Relating to the affairs of company – ss 1307 and 1311 Corporations Act 2001 (Cth).
CRIME – Appeals – Appeal against conviction – Conspiracy – Verdict on duplicitous basis – Directions given to jury – suggested three alternative agreements which might prove conspiracy - Gave rise to latent duplicity or latent ambiguity – No miscarriage of justice – Applicant did not lose a real chance of acquittal.
CRIMINAL PROCEDURE – Appeals – Appeal against conviction – Joinder of State offence with Commonwealth offences – “Out of the same set of circumstances” – s 29 Criminal Procedure Act 1986 (NSW).
CRIMINAL PROCEDURE – Appeals – Appeal against conviction – Joinder of substantive offences to conspiracy count in same indictment – Open to the Crown to charge applicant with conspiracy – Crown did not obtain any forensic advantage.
CRIME – Appeals – Appeal against conviction – Falsification of books – Falsification of company minutes – Falsification of correspondence between solicitor and company – Falsification of correspondence between bank and company - Documents are “books” of the company - s 1307 Corporations Act 2001 (Cth).
CRIMINAL PROCEDURE – Appeals – Appeal against conviction – Tender and use of exhibit – Two volumes of documents – Extended evidence of applicant during trial – No realistic prospect of prejudice – Limited duplication of documents that related to prior conviction – Applicant elected to give evidence – Detailed and thorough evidence-in-chief and cross-examination – No unfairness to applicant.
CRIME – Appeals – Appeal against conviction – Incompetence of counsel – Applicant not denied a fair trial – Applicant not deprived of a fair chance of acquittal.
CRIME – Appeals – Appeal against sentence – Manifest excess – Overall sentence not manifestly excessive – Reasonable exercise of discretion of sentencing judge.
CORPORATIONS – Meaning…
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
AGLC
Roach v The Queen [2019] NSWCCA 160
Case
[2019] NSWCCA 160
Decision Date
CaseChat Overview and Summary
The appellant was convicted of various criminal offences, including conspiracy to defraud, making false announcements to the Australian Securities Exchange, and falsifying company books. The case came before the court on appeal, with the appellant challenging both the conviction and the sentence. The appellant argued that the directions given to the jury during the trial suggested three alternative agreements which might prove conspiracy, thereby giving rise to latent duplicity or latent ambiguity. The appellant also contended that the joinder of state offences with Commonwealth offences and the joinder of substantive offences to the conspiracy count in the same indictment were improper. The appellant further argued that the evidence presented during the trial was prejudicial, and that the incompetence of counsel deprived them of a fair trial.
The court considered whether the directions given to the jury gave rise to latent duplicity or latent ambiguity, and whether the joinder of offences was proper. The court also examined whether the evidence presented during the trial was prejudicial, and whether the incompetence of counsel deprived the appellant of a fair trial. The court further considered whether the overall sentence was manifestly excessive, and whether the appellant was denied a fair chance of acquittal.
The court found that the directions given to the jury did not give rise to latent duplicity or latent ambiguity, and that the joinder of offences was proper. The court also found that the evidence presented during the trial was not prejudicial, and that the incompetence of counsel did not deprive the appellant of a fair trial. The court further found that the overall sentence was not manifestly excessive, and that the appellant was not denied a fair chance of acquittal. The court held that the documents that the appellant was convicted of falsifying were indeed "books of the company" within the meaning of section 1307 of the Corporations Act 2001 (Cth).
The appeal against conviction and sentence was dismissed. The court held that the appellant's convictions and sentence were lawful and reasonable, and that the appellant was not denied a fair trial or deprived of a fair chance of acquittal.