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[2000] NSWCCA 394
Court of Criminal Appeal (NSW)
2000-02-04
Wood CJ, Hulme J, Greg James J, James J
Original judgment source is linked above.
CITATION : R v SINANOVIC [2000] NSWCCA 394 FILE NUMBER(S) : CCA 60641/97 HEARING DATE(S) : 4 February 2000 JUDGMENT DATE : 11 December 2000
PARTIES : Regina Hakija Sinanovic JUDGMENT OF : Wood CJ at CL at 1; Hulme J at 2; Greg James J at 87
LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 95/11/0132 LOWER COURT JUDICIAL Horler DCJ OFFICER :
COUNSEL : Crown: M Grogan Appellant: In person SOLICITORS : Crown: SE O'Connor Appellant: In person
DECISION : The appeal against conviction should be dismissed; Leave to appeal against sentence should be granted; Appeal dismissed
No. 60641/97 WOOD CJ at CL HULME J GREG JAMES J
Monday, 11 December 2000 Regina v Hakija SINANOVIC JUDGMENT
1 WOOD CJ at CL: I agree with the judgment of Hulme J, and with the orders proposed.
IN THE COURT OF CRIMINAL APPEAL No: 60641/97 WOOD CJ AT CL HULME J GREG JAMES J Monday, 11 December 2000 REGINA -v- Hakija SINANOVIC JUDGMENT 2 HULME J: These proceedings are the fourth of five appeals brought by the Appellant against convictions in the District Court. So far as this appeal is concerned, the Appellant was indicted on 19 November 1997 before Acting Judge Horler and a jury on charges:- 1. For that he between 1 October 1991 and 17 April 1992 at Homebush in the State of New South Wales did steal a quantity of travellers cheques the property of Westpac Banking Corporation.
Mrs Sinanovic advanced on his behalf six further grounds of appeal. Renumbered by me, they were as follows:- 15. Whereby the accused was forced on unrepresented, with no interpretor, no assistance and no brief served, as the Crown could not produce the Form 1 signed by the accused, was an 'abuse of process' in the Committal proceedings. 16. Whereby Defence counsel did not have the transcripts of the committal proceedings only the witnesses' statements (the Crown supplied all the documentation as the Defence counsel had no papers in relation to this matter) resulted in a disadvantaging process. 17. Whereby the Crown failed to call a Crown witness who gave evidence in the committal proceedings, knowingly by failing to call this witness would prevent the jury knowing evidence which would discredit and dramatically affect the evidence of another crown witness. (Whitehorn v R). 18. Whereby Defence counsel failed to properly cross-examine a Crown witness on an important issue and failed to submit a crucial document for the jury to see resulted in disadvantaging the accused and assisting the Crown. This occurred at a most crucial part of the trial whereby the jury had fresh in their minds heard expert forensic evidence given by a Crown witness that there were no fingerprints of the accused on any of the Travellers Cheques, resulted in a miscarriage of justice. (R v Birks). 19. Whereby the inexplicable failure of Defence counsel to call witnesses as to the accused's good character resulted in a miscarriage of justice. (R v D (CCA (NSW) 22/2/96 unreported). 20. Whereby the Trial Judge was not made aware prior to the commencement of trial by Defence counsel and His Honour was made aware on the last day of part-heard sentence that the accused's wife who had all the documentation was refused visits to the Correctional centre since the accused entered custody on 3/11/97, therefore the accused had no communication and impossible to have any preparation done prior to commencement of trial. His Honour in his submission directed to the Crown it is a point of appeal. 9 The Notice of Appeal also indicated that there was an appeal against sentence, a matter confirmed by Mrs Sinanovic during the hearing. 10 Before I turn to these matters individually, it is convenient to record some of the salient features of the trial. At the commencement of proceedings on Monday 17 November, the Crown Prosecutor informed Judge Horler that an application for a stay had been served on his instructing solicitor. He said it was in the same terms as one made to Judge Shillington on the preceding Friday. His Honour then inquired as to the situation concerning Legal aid and was told that application had been made probably 8 weeks previously. Subsequent remarks of the Appellant indicated that was prior to the trial before His Honour Acting Judge Stewart, the trial which is the subject of the second appeal. In response to the Crown Prosecutor's statement that at the time the parties were before Acting Judge Stewart, Legal Aid had neither been granted nor refused because there was insufficient information, the Appellant told Judge Horler that he had provided more information but still had not received an answer from the Legal Aid authorities. 11 It would appear that His Honour left the bench and himself made some inquiries as to the availability of Counsel. After an adjournment, a Mr Drewett appeared and announced that he would be appearing for Mr Sinanovic. The commencement of the trial was then adjourned until the following Wednesday. This would seem to have happened before, and possibly well before, lunch. 12 It is worth recording, that prior to the adjournment, His Honour remarked that the Appellant's "English seems not bad at all." On the Wednesday his Honour observed that whatever the Appellants' difficulty with reading English, his verbal skills seemed to be very good. It might also be noted that the Crown Prosecutor seems to have accepted that the Appellant at least claimed that he could not read English. 13 On the Tuesday morning, Mr Drewett indicated that the defence would be in a position to proceed on the following day. On the Wednesday morning, Mr Drewett announced that he was instructed to withdraw the Appellant's application for a stay and in response to a question from His Honour the Appellant himself indicated he understood what was happening. 14 On the Wednesday, the jury was sworn and the trial commenced. Putting aside the stealing charge on which a verdict of not guilty was directed, the issues in the trial fell within a reasonably narrow compass. It seems to have been uncontested that between November 1991 and March or April 1992 a large quantity of Westpac $100 travellers' cheques had been stolen. These were said to have had a (nominal) value of $32,000,000. Indeed, by way of background a copy of this Court's judgment in an appeal by one of the thieves, Gunther (unreported, CCA, 2 November 1994), was handed to Judge Horler on Tuesday 18 November. 15 A consideration of the evidence reveals that the significant issues were whether, within a period of a few months in mid 1993, the Applicant had possession of the travellers' cheques, whether he must have known they were stolen, and whether he disposed of the cheques as alleged in the 3rd to 7th counts. In respect of these matters, the principal evidence for the Crown was as follows. 16 A Mr Nastasi gave evidence that at Leichhardt in July 1993 the Appellant gave him $60,000 worth of travellers' cheques. 17 Mr Nastasi's possession of 2 bundles of Westpac $100 travellers' cheques, after the occasion referred to in the following paragraph, was confirmed by Mrs Nastasi. Her recollection was that there was $30,000 in total in these bundles. 18 Mrs Nastasi also gave evidence that in June or July 1993, at Leichhardt the Appellant handed to her 2 bundles of Westpac $100 travellers' cheques, each bundle being 1½ to 2 inches thick. Later that day he asked for them back and then gave them to a Mr Ab Privett at the Park Lane Hotel. Mr Barry Brown was also present. 19 Mr Privett gave evidence that at the Park Lane Hotel the Appellant gave him a parcel of $100 travellers' cheques totalling $60,000, asking Mr Privett to place the parcel "with the other parcel that I have". Mr Privett left $50,000 of the travellers' cheques with a Mr Hart at the Five Dock branch of the Commonwealth Bank on the next day, 8 July 1993. The "other parcel" also consisted of travellers' cheques that the appellant had provided. 20 The handing of 2 bundles of Westpac $100 travellers' cheques to Mr Privett by the Appellant was also confirmed by Mr Brown. 21 Mr Brown also gave evidence that he had received from the Appellant bundles of Westpac $100 travellers' cheques. At one stage 4 bundles, each of $30,000 (with the possible exception of 100 cheques totalling $10,000) were given. On another occasion, in the presence of a Mr and Mrs Johnson 6 bundles, each of $30,000 were given. These cheques were counted with assistance from Mr Privett. On a third occasion $420,000 worth of cheques were handed over and these also were counted with Mr Privett. All 3 parcels were received in early to mid-June 1993. 22 A Mr Brancourt also gave evidence of having seen a stack, 2 feet cubed, of Westpac travellers' cheques in the Appellant's study. Features which Mr Brancourt described indicate that the cheques were of the same nature as those described by other witnesses. 23 Mr Brancourt's solicitor, a Mr Daley gave evidence that in May 1993 - he had been shown by the Appellant a bundle of Westpac $100 travellers' cheques at the Appellants' home and the Appellant had informed him that he had some $92,000,000 worth of these. 24 Although there is less than there might have been in the transcript of the trial to identify the charges to which this evidence related - a matter to which I refer in more detail below - the 3rd count related to the incident described by Mr Nastasi, the 4th, 5th and 6th related to the cheques said to have been given to Mr Brown and the 7th related to the cheques said to have been given to Mr Privett. The evidence of all of the witnesses was relevant to the 2nd count. 25 All of the witnesses to whom I have referred were cross-examined to suggest that there were no such travellers' cheques given or seen. The Appellant made an unsworn statement in which he denied the giving and sighting and possession of such cheques. He called no evidence. 26 There was, in addition, evidence given and mention made in the Appellant's unsworn statement to the effect that there had been other dealings between the Appellant and the persons mentioned. The evidence indicated that these dealings were either of a business nature or, under that appearance, fraudulent activity on the part of the Appellant. That evidence was no doubt directed to providing reasons for the Appellant to hand to the various witnesses, or to display, the travellers' cheques or, as was suggested on the Appellant's behalf, for the witnesses to lie. The evidence for the Crown concluded on Monday 24 November, i.e. on the fourth day.
Grounds 1, 2, 4, 11 and 16 27 During the discussion of the Appellant's stay application on Monday 17 November, Mrs Sinanovic asserted that she had not been able to see the Appellant while he was in custody because of new rules and regulations at the Silverwater Correctional Centre. When asked, she said that she had been out to Silverwater only once. Later in the proceedings that day, the Crown Prosecutor said that he had given or would give during the course of the day, copies of the committal proceedings transcript, all police statements and documentary evidence as tendered in the committal proceedings. Judge Horler remarked to Mrs Sinanovic that she seemed to be looking after her husband's papers. On that and the following day his Honour took steps to see that both Mrs Sinanovic and Mr Drewett could confer, in the court complex, with the Appellant. There were no complaints that there had been difficulties in this regard. 28 As I have indicated, on the Tuesday the trial judge was informed that the defence would be ready to proceed on the following day and on the Wednesday, the stay application was withdrawn. 29 During what I take to be the morning of Wednesday, Mr Drewett informed Judge Horler that "the accused's wife has documents relevant to the case which he has been unable to locate" - T18. Mr Drewett was asked to make further inquiries. On the Thursday morning Mr Drewett announced that he had made contact with Mrs Sinanovic who would seem to have been taken to hospital on the preceding Monday, that she had said that she had had certain documents in her possession, that the documents were then with some third party and that efforts were being made to obtain them. 30 After lunch on that day, Mr Drewett informed the court that the documents to which he was referring might be down in Melbourne and not with the Appellant's wife as first thought. Later, in connection with the documents, the Appellant attempted to phone his wife. By the beginning of the afternoon of 21 November, the Appellant had succeeded in talking to his wife who apparently informed him that she thought she knew where the documents (including a tape) were and that she anticipated that she would be getting out of hospital on Sunday. 31 On that afternoon, the Appellant was apparently unwell and the case was adjourned earlier than usual on the afternoon of Friday 21 November. 32 On Monday 24 November Mr Drewett advised the Court that he had been provided with some documents and a tape by Mrs Sinanovic and the Judge adjourned the proceedings for half an hour to enable Mr Drewett to familiarise himself with them. Also on that morning a call was made on the Commissioner of Police for the production of certain documents. There was no response and it seems not unlikely that the subpoena had not been served. His Honour indicated a disposition to give leave for short service of such a subpoena but the topic does not seem to have been raised again. Certainly, this Court was not referred to any further discussion of the topic at the trial. 33 The only indication that the Appellant had been denied access to his documents was the statement that Mrs Sinanovic had been denied visits to him and some indication that the Appellant could not read English. However, there is no evidence, or indeed, indication of the nature of the documents the subject of these grounds of appeal that would support a conclusion that the Appellant was materially disadvantaged. Nor has any explanation been provided as to why the documentation to which Mrs Sinanovic had access was not at court, or what the significance of the documents sought by subpoena might be. 34 More importantly, the clear indications that the Appellant was ready to proceed with the trial and the absence of any subsequent application for an adjournment to obtain documents lead to the conclusion that whatever difficulties there may have been had been overcome. In that regard, it is appropriate to record that, during the course of the hearing before this Court, Mrs Sinanovic asserted that Mr Drewett's indication to Judge Horler that he was ready to proceed was contrary to instructions from Mr Sinanovic. The statement to this effect flies in the teeth of the Appellant's own answer, given in face of the earlier discussion about a stay, and recorded in the transcript, to his Honour's question of whether he, Mr Sinanovic understood what was happening. 35 That response of the Appellant is also an answer to the further assertion whether true or not, by Mrs Sinanovic that the Crown brief was never read to Mr Sinanovic and that he had no knowledge of what was in it. 36 These grounds fail.
Ground 3 37 Mr Drewett had something over a day and a half together with the additional time that became available by reason of the adjournment and the weekend previously noted in which to prepare the case and he was apparently ready. Furthermore, as the trial judge suggested, the course was then adopted of calling first a number of witnesses whose evidence was relatively uncontroversial. 38 The issue in the case was within a limited compass. This becomes apparent when one considers the accused's unsworn statement to the jury. In that, about the only thing relevant he said was that he had never had travellers' cheques in his study and had not shown or given them to the various witnesses for the Crown who said that he had done so. 39 Nothing has been put before this Court to indicate either the nature of the documents which might have been the subject of subpoena, or that they might have been of significance to the outcome of the trial. 40 During the course of the hearing Mrs Sinanovic also complained that the counsel who appeared for the Appellant may have been too inexperienced. She asserted that the Appellant had never had explained to him the disadvantages of making an unsworn or dock statement and was "forced to do a dock statement because he was told that is part of the procedure". She also asserted that the course he took of not giving evidence denied him the opportunity to have material tendered. She did not identify the material other than as a document to which the Crown prosecutor had access or explain why his election not to give evidence meant the same unidentified document could not have been tendered. 41 Another complaint made by Mrs Sinanovic was that Mr Drewett failed to apply for short service of subpoenae and made no attempt to see Mrs Sinanovic at the hospital. 42 Mr Drewett was in fact admitted on 27 May 1996. It may thus be inferred that he was relatively inexperienced. However, a consideration of the transcript generally does not give me the impression that Mr Drewett was too inexperienced to conduct the trial or that he displayed incompetence in the defence of the Appellant. It is unnecessary to detail the various factors which have led me to that conclusion but they include the form and content of his questions, and his responses to interruptions from the bench. 43 The assertion concerning the dock statement is not one upon which, in the absence of evidence, upon which the Court should act. It was a matter raised without prior notice to the Crown. Furthermore, if regard is had to the fact that the Appellant had given evidence in the trials before Stewart ADCJ and Grogan DCJ, it is impossible to accept that he was "forced to do a dock statement because he was told that is part of the procedure". 44 The absence of identification of the material to be tendered makes it impossible to come to any conclusion favourable to the Appellant so far as that submission is concerned. The same applies so far as the subpoena is concerned. This Court has no idea of the relevance or significance of the material which might have been produced pursuant to such a subpoena. Nor is it apparent what would have been achieved had Mr Drewett seen Mrs Sinanovic in hospital. This ground fails.
Grounds 5, 6 and 17 45 There seems to have been no complaint along the lines of these grounds made at the trial. However during the course of the appeal it became apparent that the complaint related, inter alia, to the failure of the Crown to call a bank officer, Mr Hart. Mrs Sinanovic's somewhat confusing point seems to have been that this person could have given evidence to the effect that the travellers' cheques deposited, or perhaps those the subject of Exhibit G, a deposit slip for $50,000, were deposited "against" - presumably in response to - a banking problem or banking loan and not for safe keeping as, according to her, was claimed by Mr Privett. It was asserted that Mr Hart had given evidence at the committal proceedings and the court was provided with what appears to have been a transcript of those proceedings. 46 In fact, Mr Privett's evidence in the trial was that he was asked by the Appellant to put the traveller's cheques in a safe place, that he saw Mr Hart who made a note of the numbers on the cheques, and that he left the cheques in a safe security box at the bank. Asked why he took 50,000 to the bank, Mr Privett replied:- "Well, I took 50,000 to the bank because I had an account at the bank and I also had an overdraft at the bank and to keep faith with the bank I put 50,000 in their safe because why that - what the story was, there - otherwise if I'd had other moneys there I'd have wept (sic) and taken the $50,000 overdraft off my account but I didn't - I thought to keep faith I'd put that money into the safety deposit box in the bank." 47 A transcript of the evidence Mr Hart gave at the committal proceedings was made available to the court. In it Mr Hart is recorded as saying that he saw the cheques, counted them and they were then put into a safe custody packet and placed in the bank safe. His evidence would thus have added nothing to that which Mr Privett gave. 48 A further claim made by Mrs Sinanovic was that the Crown had withheld from the Appellant information that Westpac had to the effect that other people were involved with the travellers' cheques. She suggested that there was at least one robbery charge against a Mr Gunner (sic), that another person, Batista (sic) was charged with cheat and defraud and conspiracy to steal and that a third person was charged with fraud. 49 Mrs Sinanovic seemed to be trying to make the point that, because of the involvement of those people, the Crown could have had no evidence against Mr Sinanovic on the stealing charge and that it had been presented to prejudice the jury, rather than because the Crown had evidence of the Appellant's commission of that offence. 50 In fact, on the morning of Tuesday 18 November the Crown had, in the presence of Mr Drewett and the Appellant, said to Acting Judge Horler that he was providing a copy of the unreported judgment of this Court in the matter of "Paul William Gunther", a document which was said to give the background of the theft in question. The Judgment shows that Mr Gunther was charged with conspiracy to cheat and defraud and that his offence related to the removal, in concert with at least two others, Messrs Wilson and Batista, of the cheque forms from their custodian. 51 In the face of this action by the Crown, the complaint as to the Crown withholding information is baseless. Nor is there any basis for concluding that the inclusion of the first count was with a view to prejudicing the Appellant. His Honour directed a verdict in respect of this charge once he had rejected the Crown's argument that the possession by the Appellant of the cheques was not sufficiently recent to enable the Crown to rely on the doctrine of recent possession as providing a basis for a conclusion that the Appellant had been a party to their theft 52 These grounds also fail.
Ground 7 53 The dates of the alleged offences, the trial judges, the dates of trials and the dates of sentence in the three trials presumably referred to in this ground are as follows:- Alleged Offence Judge Trial Dates Sentence July to Nov 95 Stewart ADCJ 8 - 24.09.97 03.11.97 Aug 91 to Mar 92 Grogan DCJ 3 - 13.11.97 14.11.97 10.10.91-12.07.93 Horler ADCJ 17 - 26.11.97 03.12.97 54 I have seen absolutely nothing to suggest that the order of the trials could have operated to disadvantage the Appellant or that the dates were set with this in mind. Nor, in the events which happened, is it accurate to describe the three trials as "back to back". The period between the conclusion of the first trial and the commencement of the second trial was not insignificant and in my view should have provided the Appellant with adequate time within which to prepare for the second and third trials. 55 As I have indicated above, the issue in the third trial was a simple one. So it was in the second trial. This ground fails. 56 That is enough to dispose of this ground of appeal. However, it is appropriate to refer to a submission by the Crown that the procedure adopted was the most expeditious way of dealing with the trials. That may be so but expedition is not the only consideration in these circumstances. It is difficult to see that there would have been any, or any significant disadvantage to the Crown if the listing authorities had spread the trials over a period of a few months.
Grounds 8 and 9 57 Having regard to the fact that Mr Drewett did appear for the accused before Horler DCJ and, with the Appellant's consent, elected not to proceed with the application for a stay of the proceedings, there is no substance in either of these grounds. 58 It must be remembered that Mr Drewett could not have appeared for the Appellant except with the Appellant's consent and there is nothing before the Court to indicate that that consent was not voluntarily given or that any problems of the Appellant in obtaining legal representation earlier were other than of his own making. These grounds also fail.
Grounds 10 and 13 59 Although the Appellant's incarceration following his conviction in the trial before Stewart ADCJ may well have made preparation somewhat more difficult, there is neither evidence nor logic to support the proposition that the result of that trial had any significant impact on the trial before Horler ADCJ. These grounds also fail.
Ground 12 60 The system under which the Appellant was tried does not permit the kind of inquiry into the identity and background of jurors. For reasons that are well understood and that are reflected in the Jury Act, the privacy and anonymity of jurors is an important feature of trial by jury in New South Wales. This ground is totally lacking in substance.
Ground 14 61 No oral argument was given directed to this ground. Insofar as this ground relates to the Appellant's trial, it is sufficiently answered by what I have said when considering grounds 1 and 2 above.
Ground 15 62 There is no basis for thinking that, even if the committal proceedings were deficient in the respects indicated, those deficiencies affected the conduct of the trial. In fact no evidence was put before the Court prior to, or during the hearing, to demonstrate that the committal proceedings did in fact suffer from the deficiencies stated in this ground. The ground fails.
Ground 18 63 Neither the Crown witness, nor the "important issue", nor the document referred to in this ground was identified. The fingerprint expert called by the Crown was Detective Warboys. His evidence was followed by that of Mr Privett, Mr Brancourt, Mr Brown and Mr Orlando. Of these only Mr Orlando was not cross examined but, given that his evidence-in-chief fell within a very limited compass, it is impossible to conclude that there was any error in the decision not to cross-examine him. Neither is it obvious that there was any significant omission in the cross-examination of the other witnesses mentioned. This ground also fails.
Ground 19 64 Defence Counsel's failure to call witnesses as to the Accused's good character was by no means inexplicable. The Accused had in September and November 1997 been convicted in respect of offences of dishonesty and he was facing further charges. He had also earlier been convicted of other offences of dishonesty to which I refer when considering his appeal against sentence below. If evidence that he was of good character was available and called, the Crown would have been permitted to call evidence of the Appellant's record for dishonesty. It is impossible to believe the result of all this would have increased his chances of acquittal.
Ground 20 65 In large part matters relevant to this ground have been dealt with by me when considering grounds 1, 2, 4, 11 and 16. However, it may not be out of place to repeat, in answer to the proposition that "the trial judge was not made aware… that the Accused's wife… was refused visits to the Correctional Centre" that this proposition is simply wrong and flies in the teeth of the transcript where, on 17 November 1997, the following is recorded:- "MRS SINANOVIC: I have not been able to see Mr Sinanovic while in custody. HIS HONOUR: Why is that? MRS SINANOVIC: Very difficult. There is certain new rules and regulations at Silverwater Correctional Centre. Up until now I haven't been granted access to see him." 66 There is no substance in this ground.
Other Matters 67 Mrs Sinanovic was allowed to argue several matters which went outside the grounds of appeal. Although they were somewhat confusing and poorly focused, I will endeavour to deal with them. 68 One of the further submissions which Mrs Sinanovic made was that, despite the evidence given by the Crown witnesses to which I have referred, no travellers' cheques were found in Mr Sinanovic's possession, no finger prints of his were identified on any of the cheques, and more than 12 months had elapsed from the time that they were stolen, and this evidence was never put before the jury. A consideration of the transcript demonstrates why the Court should be very reluctant to ever permit persons such as Mrs Sinanovic to address it. 69 In fact, evidence was given by three witnesses, a Mr Derrig, Mr Collins and Mr Budd indicating that the cheques were stolen at or prior to Easter 1992 - a time obviously more than 12 months before that of which the witnesses Nastasi, Privett and Brown spoke. His Honour in his summing up also adverted to the disappearance being "in excess of twelve months" earlier. 70 That no travellers' cheques were found in the Appellant's home was deposed to by a police officer Gordon. There was no contrary evidence although others corroborated Mr Gordon's evidence of a search being conducted. These witnesses were not asked whether cheques were or were not found. 71 That the first and last cheques in the numerous piles of them obtained by the police were subjected to fingerprint examination, and that the Appellant's prints were not found, although the prints of others were, was also the subject of evidence from police officers Gordon Willing and Worboys. This evidence was also referred to in his Honour's summing up. 72 Of more concern is the fact that, although his Honour made it clear that the jury had six separate counts to consider and that a verdict on one said nothing about what the verdict on others should be, he made no attempt to identify for the benefit of the jury what evidence related to each count. The jury appears to have had a copy of the indictment - inappropriately referred to by the judge as their "song sheets" - but there is little in that to differentiate the third and seventh counts. 73 It was clear at least to Mr Drewett that count 3 related to the Nastasis although the evidence of Mr and Mrs Nastasi was not sufficiently precise in terms of date to indicate which of counts 3 or 7 it related to. On the other hand, Mr Privetts' evidence of the date on which he received cheques to the value of $60,000, viz. 7 July 1993, indicates it related to the seventh, rather than the third, count. 74 The similarity in the counts and much of the evidence which related to them, the vagueness of Mr and Mrs Nastasi as to date and the failure of his Honour to specify which witness related to which count raises the possibility that the jury or some members of it may not have made the differentiation which was required to ensure that, for example, the evidence of Mr and Mrs Nastasi was not taken into account in respect of the seventh count. 75 On the other hand, his Honour's silence on the issue inspired neither counsel for the Appellant, nor counsel for the Crown, to raise any objection to the summing up. There is no reason to think that either of them was confused and the nature of the case makes it highly probable that their addresses did draw the distinction which his Honour did not. Although it would have been preferable had his Honour said more in his summing up than he did in this respect, ultimately I am not persuaded that his omission amounted to legal error. 76 A second matter deserving of mention is his Honour's remarks at page 6 of his summing up where he said:- "You have heard what the witnesses say as to what they claim they saw at Marion Street, Leichhardt in the office of the accused which had been set up in the garage. And it is crucial for you to decide who you believe on the issue as to whether or not there were quantities, large quantities so the Crown argues, of Westpac travellers cheques in uncut form and in bundles in the garage. The prosecution witnesses say I saw them. Mr Sinanovic, through his counsel, says they were not there, and this is a fabrication. So there is issue joined. Who do you believe on that issue?" 77 His Honour posed a similar question on the following page. To do so was to invite the jury to apply a wrong test for the issue was not who they believed. It was whether, particularly in light of the conflict between the witness for the Crown on the topic and the Appellant's unsworn statement, the jury was persuaded they should find that the Crown had proved its case beyond reasonable doubt. 78 However, not long before, his Honour had, in terms to which no exception could be taken, directed the jury that the onus lay on the Crown to prove its case beyond reasonable doubt. In these circumstances, I do not regard the observation mentioned as one which may reasonably have led to the jury misunderstanding the test it had to apply. There was an issue of fact for the jury, but it was properly to be considered in the context specified, i.e. the context in which the Crown had to prove its case beyond reasonable doubt. 79 There is one further matter to which I should refer. After the decision was reserved in this and the three other appeals heard at the same time, the Court received further submissions and supporting documentation apparently from Mrs Sinanovic. Details of this, and my reasons for regarding this material as of no assistance to the Appellant, are referred to in my Reasons in proceedings 60564 of 1997.
Appeal against Sentence 80 The Appellant who was born in 1959 has a criminal history for offences of dishonesty dating back to 1987. In 1989 he was convicted of wilfully making a false promise and in 1990 he was convicted on 2 counts of false pretences. In 1992 or 1994 (depending on whether one has regard to the Police Service version of the Appellant's criminal history or that prepared on behalf of the Solicitor for Public Prosecutions) he was convicted on 3 counts of dishonestly obtaining money or a financial advantage by deception. The criminal history prepared on behalf of the Solicitor for Public Prosecutions also states that the Appellant was convicted on 3 other charges of attempting similar offences but the Police Service document does not. The former document also records that in 1992 the Appellant was sentenced for the first time to imprisonment - for a period of 2 years from 8 May 1992. It also indicates that further offences of the same general nature occurred in 1994 and 1996. 81 I am not unconscious of the fact that some of these offences may have been committed after those the subject of this appeal. Given the uncertainty in the documentation, any doubts as to what the Appellant's record in fact is, are to be resolved in his favour. However his history demonstrates that those offences for which Acting Judge Horler sentenced the Appellant were not an uncharacteristic aberration but rather manifestations of a continuing attitude of dishonesty and of disobedience to the law. Horler ADCJ described the Appellant's conduct as an "attempt in a vigorous way over a period of time to use those travellers' cheques for his own purposes". The amounts involved or potentially involved in the offences, particularly the second, were large and, against the statutory maximum penalty of 10 years penal servitude, none of the concurrent sentences each totalling 3 years imposed on the Appellant can be regarded as outside the proper exercise of the judge's sentencing discretion. 82 And this is so even when regard is had to the fact that the sentences imposed were cumulative to sentences previously imposed. These and the dates they were imposed and by whom, appear in the following table:- Judge Date Minimum Term Additional Term Stewart ADCJ 3.11.97 3.11.1997 to 15.4.2000 16.4.2000 to 16.2.2001 Grogan DCJ 14.11.97 16.4.2000 to 15.5.2001 16.5.2001 to 15.7.2002
83 The offences in respect of which these sentences were imposed are detailed in the Court's reasons published today in the other of Mr Sinanovic's appeals. 84 Before leaving the matter there is one further matter to which I should refer. In his remarks on sentence Horler ADCJ said that he was not taking into account any of the sentences, and presumably convictions, that the Appellant had suffered which were then the subject of appeal. That approach was wrong. As has been said on numerous occasions, verdicts are not to be treated as provisional, pending their confirmation on appeal. Chamberlain v R (No 1) (1983) 153 CLR 514 at 519-20. See also R v Wilson (1994) 34 NSWLR 1 at 7. There is no reason why this principle should not apply equally to sentences imposed following conviction. 85 Furthermore, if a sentence imposed is too high, in consequence of a sentencing judge having taken into account a prior conviction later set aside on appeal, the offender concerned can readily have the matter reviewed by this Court. The Crown is not in the same position should it wish to appeal. The course taken by Horler ADCJ was calculated to lead to a sentence which was too low but the constraints on Crown appeals arising from the doctrine of double jeopardy will rarely enable a Crown appeal in that situation to succeed. 86 For these reasons the appeal against conviction should be dismissed. Leave to appeal against sentence should be granted but the appeal dismissed.
No. 60641 of 1997 CORAM: WOOD, CJ. at CL. HULME, J. GREG JAMES, J.
87 GREG JAMES, J: I have had the benefit of seeing a draft of the judgment of Hulme, J. in this matter. 88 I agree with the orders he proposes, for the reasons he gives.
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R
SINANOVIC
(1983) 153 CLR 514
(1994) 34 NSWLR 1