Medium Neutral Citation: Vella v R; Siskos v R [2015] NSWCCA 148
Hearing dates: 15 May 2015
Date of orders: 19 June 2015
Decision date: 19 June 2015
Before: Gleeson JA   at [1]
Hidden J   at [11]
Beech-Jones J   at [13]
Decision:
In the matter of Vella v R (2012/179521):

(1)   The applicant be granted an extension of time to appeal her conviction and to apply for leave to appeal against her sentence up to and including 3 February 2015;

(2)   Leave to raise grounds 5, 6 and 7 of the conviction appeal be granted;

(3)   Leave to raise grounds 1 and 4 of the conviction appeal be refused;

(4)   The appeal against the appellant's conviction on 28 October 2013 be dismissed;

(5)   The applicant be granted leave to appeal against the sentence imposed on her on 4 April 2014; and

(6)   The appeal against the sentence imposed on 4 April 2014 be dismissed.

In the matter of R v Siskos (2012/179550):

(1)   The applicant be granted an extension of time to appeal his conviction up to and including 21 April 2015;

(2)   Leave to raise grounds 2 and 3 of the conviction appeal be granted;

(3)   Leave to raise ground 1 of the conviction appeal be refused;

(4)   The appeal against the appellant's conviction of 28 October 2013 be dismissed;

(5)   The applicant be granted leave to appeal against the sentence imposed on 4 April 2014; and
(6)   The appeal against the sentence imposed on 4 April 2014 be dismissed.
Catchwords:
APPEAL: conspiracy to defraud - insurance company – life insurance policy over second applicant’s life – first and second applicant agreed to obtain policy and that second applicant would commit suicide – first applicant ultimate beneficiary – second applicant did not commit suicide – fraud lay in obtaining policy dishonestly – concealed facts they had a duty to disclose.

CONVICTION APPEAL: unreasonable verdict – no submissions in support – evidence of agreement very strong – alleged failure of trial judge to give directions about admissions and fact that one of the applicants was alive – no such directions sought or required – Criminal Appeal Rule 4 applies – complaint that counsel “flagrantly incompetent” in not raising good character of each applicant in the form of lack of recent convictions – reception of evidence from trial counsel – material suggested that if character raised Crown could have rebutted it – forensic reasons identified – complaint that trial judge allowed Crown to adduce additional evidence at trial without adequate notice – evidence of insurance underwriter as to whether cover would have been offered if intention to commit suicide disclosed – additional evidence not opinion evidence – no error by trial judge in allowing evidence to be adduced - both applicants’ appeal against conviction dismissed.
SENTENCE APPEAL: no error by sentencing judge in determining objective seriousness of the offence – duration of the conspiracy substantial – conspiracy motivated by greed…

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 Vella v R

Details

AGLC: Vella v R [2015] NSWCCA 148
Case: [2015] NSWCCA 148
Decision Date: 19 June 2015

CaseChat Overview and Summary

Vella v R involved an appeal by two applicants against their convictions and sentences for conspiracy to defraud an insurance company. The applicants had conspired to obtain a life insurance policy on the second applicant's life, with the agreement that the second applicant would commit suicide. The first applicant was to be the beneficiary of the policy. However, the second applicant did not commit suicide, and the fraud was considered to be in obtaining the policy dishonestly by concealing facts that they had a duty to disclose. The applicants challenged both their convictions and sentences on various grounds.

The legal issues before the court included whether the verdict was unreasonable, whether there were procedural errors in the trial, and whether the sentences were excessive. The applicants argued that the trial judge failed to give necessary directions regarding admissions and that the second applicant's survival should have been highlighted. They also contended that their trial counsel was incompetent for not raising their good character, and that the trial judge erred in allowing additional evidence from the Crown. The applicants further argued that the sentences were manifestly excessive and did not appropriately consider the objective seriousness of the offence, the role of each applicant, and other sentencing criteria.

The court found that the evidence of the agreement between the applicants was very strong, and there were no grounds to consider the verdict unreasonable. The court held that the trial judge did not need to give specific directions about the second applicant's survival, as no such directions were sought or required. Regarding the trial counsel's conduct, the court found that raising the applicants' character might have allowed the Crown to rebut it, and thus, there was no error in the counsel's performance. The court also ruled that the trial judge did not err in allowing additional evidence from the Crown, as it was not opinion evidence. The sentencing judge was found to have correctly assessed the objective seriousness of the offence and appropriately adjusted the non-parole period. Therefore, both applicants' appeals against their convictions and sentences were dismissed.

The final orders of the court were that both applicants' appeals against their convictions and sentences were dismissed. The court affirmed the trial judge's findings and the sentences imposed. The court held that the trial and sentencing processes were conducted correctly, and the sentences were not manifestly excessive. The applicants' arguments regarding procedural errors, the conduct of trial counsel, and the excessiveness of the sentences were not upheld.

Orders