Sinanovic v Regina - [2002] NSWCCA 292

CITATION: Sinanovic v Regina [2002] NSWCCA 292

FILE NUMBER(S): CCA 60330/01

HEARING DATE(S): 8/3/02

JUDGMENT DATE:
25 July 2002

PARTIES :

Hakija Sinanovic v Regina

JUDGMENT OF: Stein JA at 1; O'Keefe J at 2; Buddin J at 35

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 01/11/0025

LOWER COURT JUDICIAL
OFFICER : Luland DCJ

COUNSEL : Mr G Nicholson QC - Appellant
Mr G Smith - Crown

SOLICITORS: Dean & Co,
Melbourne Vic - Appellant
S E O'Connor, Crown Solicitors, Sydney - Crown

CATCHWORDS: Criminal Law - Appeal against sentence - Fraudulent misappropriation - Form of indictment - Names of persons to whom payments are to be made not included in indictment - Accused aware of the essence of matters alleged against him - Essential factual ingredients of the offence included in indictment together with sufficient particularity to enable accused to be reasonably apprised of charge - Non inclusion of names not fatal to validity of indictment - Desirability of including in indictment names of persons to whom payments are to be made

LEGISLATION CITED: Crimes Act 1900 s.178A
Criminal Appeal Act 1912 s.6

CASES CITED:
Andrews v The Queen (1968) 126 CLR 198
Council of the City of Shoalhaven v State Pollution Control Commission (1991) 52 A Crim R 291
Wilde v Regina (1998) 164 CLR 365
Regina v Giri [2001] NSWCCA 197 unreported 12 June 2001
Cheng v The Queen (2000) 208 CLR 248
McQueeney (1989) 39 A Crim R 58
Spies (2000) 113 A Crim R 448

DECISION: Appeal dismissed.

60330 OF 2001

STEIN JA
O’KEEFE J
BUDDIN J

25 July 2002

HAKIJA SINANOVIC v REGINA

Judgment

1 STEIN JA : I agree with O’Keefe J.

2 O’KEEFE J: Hakija Sinanovic (the appellant) has appealed against his conviction on 25 May 2001 in respect of a charge laid under s 178A of the Crimes Act 1900. The conviction was by a judge of the District Court (the trial judge) who by consent heard and determined the matter without a jury. On 28 May, 2001 the appellant was sentenced to imprisonment for 18 months to commence on 2 April 2002 with a non-parole period of two months to expire on 2 June 2002.

3 The section under which the appellant was charged provides that:

“Whosoever having … received any money … upon terms requiring him … to … pay to any person the whole or any part of :

(a) such money … fraudulently misappropriates to his … own use or the use of another person, … such money or valuable security, shall be liable to imprisonment for seven years.”

4 The indictment against the appellant alleged that:

“Between 1 July 1995 and 30 November 1995 at Sydney in the State of New South Wales having received certain money, namely the sum of $27,800 upon terms requiring him, the said Hakija Sinanovic to pay the same by investing in the acquisition for Tina Ruello of an interest in a restaurant known as “Stella” fraudulently…

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 Sinanovic v Regina

Details

AGLC: Sinanovic v Regina [2002] NSWCCA 292
Case: [2002] NSWCCA 292
Decision Date: 25 July 2002

CaseChat Overview and Summary

Sinanovic v Regina was a case in which the respondent, Sinanovic, sought to appeal his conviction and sentence for fraudulent misappropriation of funds. The matter was heard in the High Court of Australia. Sinanovic had been charged with making fraudulent payments to individuals who were not named in the indictment. The crux of the appeal was whether the omission of the names of the individuals to whom the payments were made rendered the indictment invalid, despite the inclusion of the essential factual elements of the offence.

The legal issues before the Court were whether the non-inclusion of the names of the persons to whom payments were to be made was fatal to the validity of the indictment and whether it was desirable to include such names in the indictment. The Court considered whether the omission of the names meant that Sinanovic was not adequately informed of the charges against him, potentially affecting his ability to prepare a defence.

The Court held that the non-inclusion of the names of the individuals to whom payments were made did not invalidate the indictment, provided that the essential factual ingredients of the offence were included with sufficient particularity. The Court reasoned that as long as Sinanovic was aware of the essence of the matters alleged against him, the omission did not deprive him of a fair trial. While it was desirable to include the names of the individuals in the indictment for clarity, the Court found that the indictment was sufficiently clear to enable Sinanovic to understand the charges and prepare a defence.

The High Court dismissed the appeal, affirming the conviction and sentence imposed on Sinanovic. The Court's decision underscored the importance of including the essential elements of an offence in an indictment, while also acknowledging that minor omissions do not necessarily render an indictment invalid if the accused is otherwise aware of the charges against them.

Orders