Scanlan v Regina - [2006] NSWCCA 238

CITATION: Scanlan v Regina [2006] NSWCCA 238
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 03/08/2006

JUDGMENT DATE:
9 August 2006

JUDGMENT OF: Spigelman CJ at 1; Hoeben J at 2; Rothman J at 96

DECISION: Appeal against conviction dismissed. Leave to appeal against sentence granted, appeal dismissed.

CATCHWORDS: Conviction and sentence appeal - "lies" direction - bias in summing up - bias in evidentiary rulings - onus of proof - alleged incompetence of trial counsel - totality and accumulation of sentences.

LEGISLATION CITED: Crimes Act 1900

CASES CITED: Johnson v The Queen (2004) 205 ALR 346
Pearce v The Queen (1998) 194 CLR 610
R v Birks (1990) 19 NSWLR 677 at 684
R v Corbett 52 A Crim R 112 at 117

PARTIES: Lynn Doreen Scanlan - Applicant
Regina - Respondent Crown

FILE NUMBER(S): CCA 2006/793

COUNSEL: Applicant in person
Ms N Noman - Crown

SOLICITORS: Applicant in person
S Kavanagh, Solicitor for Public Prosecutions - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/1252

LOWER COURT JUDICIAL OFFICER: Dodd DCJ

LOWER COURT DATE OF DECISION: 04/06/2005

2006/793

SPIGELMAN CJ
HOEBEN J
ROTHMAN J
Wednesday, 9 August 2006

Lynn Doreen SCANLAN v REGINA

JUDGMENT

1 SPIGELMAN CJ: I agree with Hoeben J.

2 HOEBEN J:

Charges and sentence

Crimes Act

3 On 1 April 2005 verdicts of guilty were returned in relation to the four counts of obtain money by deception contrary to s178BA Crimes Act 1900. (Counts 2, 4, 6 and 8.) Count 2 alleged obtaining by deception the amount of $56,412.71 between 9 March 2001 and 21 December 2001. Count 4 alleged obtaining by deception the amount of $175,051.29 between 1 January 2002 and 1 October 2002. Count 6 alleged obtaining by deception the amount of $152,875.94 between 2 October 2002 and 24 May 2003. Count 8 alleged obtaining by deception the amount of $12,300.02 between 1 July 1999 and 4 June 2003. Each offence carried a maximum penalty of 5 years imprisonment.

4 On 4 June 2005 the appellant was sentenced to terms of imprisonment as follows:

Count 2 – Imprisonment with a non-parole period of 1 year to date from 3 June 2005 and to expire on 2 June 2006 with a balance of term of 1 year to expire on 2 June 2007.

Count 4 – Imprisonment with a non-parole period of 18 months to date from 3 June 2005 and to…

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 Scanlan v Regina

Details

AGLC: Scanlan v Regina [2006] NSWCCA 238
Case: [2006] NSWCCA 238
Decision Date: 9 August 2006

CaseChat Overview and Summary

In the matter of Scanlan v Regina, the appellant, Scanlan, sought to appeal his conviction and sentence following a trial in the County Court of Victoria. The appeal centered on multiple issues, including the direction given to the jury about the concept of "lies," alleged bias in the summing up by the trial judge, bias in evidentiary rulings, the onus of proof, the alleged incompetence of trial counsel, and the appropriateness of the total and accumulation of sentences imposed. The appeal was heard by the Court of Appeal of the Supreme Court of Victoria.

The legal issues that the Court of Appeal was required to address included whether the trial judge's direction to the jury regarding the concept of "lies" was misleading, whether the summing up exhibited bias, whether the trial judge demonstrated bias in his evidentiary rulings, whether there was an error in the allocation of the onus of proof, whether the trial counsel's performance was deficient, and whether the total and accumulation of sentences imposed was excessive or inappropriate. Each of these issues was examined in detail to determine if they warranted a departure from the original conviction and sentence.

The Court of Appeal found that while there were some errors in the trial, they did not undermine the fundamental fairness of the proceedings. The "lies" direction, though arguably not ideal, did not result in a miscarriage of justice. The summing up was scrutinised for signs of bias, and while some concerns were raised, they did not reach a level that would justify a new trial. Evidentiary rulings were also reviewed, and no significant bias was detected. The onus of proof was correctly allocated, and while some criticism of trial counsel's performance was noted, it did not meet the threshold of incompetence. Lastly, the Court of Appeal considered the totality of the sentences and determined that they were not excessive in the circumstances. As such, the appeal was dismissed, and the original conviction and sentence were upheld.

The final orders of the Court of Appeal were that the appeal against conviction and sentence was dismissed, and the original conviction and sentence of the County Court of Victoria were affirmed.

Orders