Sigalla v R

Reason 1 - failure to consider ground 4

1. The applicant submitted that this Court had failed to exercise its jurisdiction by not considering and determining Appeal Ground 4. He submitted: "3. Brereton JA at [97] stated "ultimately the applicant pressed ground 4 (applicant denied a chance of acquittal that was open to him) only insofar as ground 1A was sustained. As no appealable [sic] error has been established, the ground requires no further consideration. This ground [of appeal] fails." 4. His Honour's statement at [97] is unequivocally false. It is not the truth. The applicant's senior counsel, Mr Stratton, did not limit, waive or abandon the appellant's ground 4."
2. The applicant's Notice of Appeal contained the following four grounds: 1. the trial judge misdirected the jury as to the elements of an offence contrary to s 184(2)(a) of the Corporations Act; 2. the trial judge erred in admitting evidence of the Perpetual Loan and the applicant's gambling-related activities because that evidence was not relevant or was otherwise inadmissible; 3. the trial judge erred in refusing to admit evidence that supported the applicant's case at trial; and 4. the applicant was denied a chance of acquittal that was fairly open to him on one or more of the 24 counts on the indictment, as a result of the conduct of the trial as a whole.
3. At a late stage, the grounds of appeal were amended, with grounds 2 and 3 being abandoned, and the following new ground 1A, which became the main focus of the appeal, being added: (1A) the trial miscarried because the jury was not directed that in order to be satisfied that the applicant was guilty of the charges, the jury would have to be satisfied beyond reasonable doubt that the applicant did not have an honest belief that he was entitled to the funds paid to him or at his direction.
4. At the hearing of the appeal before this Court, the applicant was represented by experienced senior counsel, who, in respect of ground 4, said (emphasis added): [16] "Your Honours grounds 2 and 3 are abandoned and ground 4 is only relied on insofar as it's now argued under ground 1A which I'm seeking leave to add to the grounds of appeal."
5. Then, after concluding argument on ground 1A, senior counsel said (emphasis added): [17] "In relation to ground 1 I wasn't proposing to add anything to the written submissions. The Court has heard me in relation to ground 1A. Grounds 2 and 3, as indicated, are abandoned. Ground 4 is only relied on insofar as its - in effect ground 4 has been expanded into ground 1A and I don't otherwise rely on it. Those are the submissions in relation to conviction. Does the Court wish me to move on to the sentence appeal?"
6. These passages show that the statements in the judgment of Brereton JA impugned by the applicant as "unequivocally false" and "not the truth" were indeed accurate, and that contrary to the applicant's submission, his senior counsel did limit, waive, and abandon ground 4, to the effect that it relied only on the issue argued under ground 1A, being a complaint the trial miscarried because the jury was not directed that in order to be satisfied that the applicant was guilty of the charges, the jury would have to be satisfied beyond reasonable doubt that the applicant did not have an honest belief that he was entitled to the funds paid to him or at his direction.
7. In Simmons, when considering whether a particular ground of appeal had been pressed on the hearing of the appeal in circumstances where, though expressed as a separate ground in the Notice of Appeal and separately addressed in the appellant's written submissions, it was conceded in oral argument to be the "corollary" of other grounds, the Court explained: [18] "It is important to recognise the value of oral argument in appeals before this Court. While frequently counsel indicate that they rely on their written submissions, the hearing of an appeal is dynamic. Positions taken and submissions made in writing may be confirmed, varied or abandoned by counsel in the course of a hearing. These changes may arise as a result of further reflection by counsel or as a consequence of questions asked by the Bench or matters raised in opposition by other counsel. The Court is entitled to act on the basis of those concessions and decide the appeal or application accordingly. The principle that an accused is bound by the conduct of his or her counsel at trial (R v Birks (1990) 19 NSWLR 677; TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 at [8] (Gleeson CJ) and [79] (McHugh J)) also applies in the different context of appeals."
8. In the present case, the Court did not further consider ground 4, because as ultimately pressed it depended only on ground 1A, which failed. This involved no slip, oversight, or misapprehension. This "reason" does not provide even a faintly arguable basis for re-opening the appeal.

Reason 2 - failure to comprehend the basis of the trial decisions

1. The applicant complains that this Court failed to comprehend the basis of the decision at trial in two respects: first, that in the trial the evidence was not "allocated" to any of the four essential elements of each of the 24 offences, without which it was not possible to comprehend the basis of the verdict; and secondly, that the trial judge allowed the jury to decide questions of law as to the legal contractual relationships among the parties, including the applicant's claim of a quantum meruit, whether moneys were held in trust by TZL for another party, and whether invoices sent by the applicant to TZL evidenced "a definite contractual relationship".
2. These are essentially complaints about the trial judge's directions to the jury. Neither of these matters was the subject of a ground of appeal, and so there was no occasion for this Court, when considering the appeal, to have addressed them. This "reason" involves an impermissible attempt to reargue the appeal, on grounds not previously advanced.

Reason 3 - misapprehension of factual circumstances

1. The four significant matters that this Court was said to have misapprehended were: 1. the nature of the contractual relationship between the applicant and TZL; 2. that significant amounts of money paid to TZL were funds held on trust by TZL for the applicant, so that TZL did not suffer any detriment and the applicant gained no benefit from their appropriation; 3. that the applicant's evidence refuting motive was ignored; and 4. that the majority of the payments to and for the benefit of the applicant were not effected by the applicant but by other directors of TZL.
2. These matters had been relied on by the applicant at trial to refute the prosecution case that he acted "dishonestly". They savour of arguments which might have been advanced on an appeal on the ground that the jury's verdict, which apparently accepted the prosecution case, was unreasonable. However, the Notice of Appeal contained no such ground of appeal. In the absence of an "unreasonable verdict" ground, there was no occasion for this Court to do more than address the specific grounds that were advanced and relied upon. This "reason" is an impermissible attempt to reargue the appeal, on grounds not previously advanced.

Reason 4 - misapprehension of questions of law

1. The questions which this Court was said to have misapprehended were that: 1. the Court was unable to determine if the claim of right defence was available for each of the 24 counts, because neither the trial judge nor the prosecution allocated any evidence to the determination of the claim of right for each and every count; 2. the Court did not understand that the threshold issue of the legal entitlement of the recipients to the moneys or shares was not determined by the trial court; 3. the circumstance that the applicant could be both a director and a capital raising consultant was never determined; 4. the Court ignored the legal consequence of the applicant's argument that the moneys paid to him were payable pursuant to a claim of quantum meruit; 5. the various moneys received by TZL were held on trust for the applicant; and 6. it was not legally possible for the applicant as a de facto director to effect the relevant transactions. The Court misunderstood the issue of causation: the prosecution's case was that the applicant caused all 24 payments of money or share issues, and had to prove that he somehow legally effectuated each transaction, having regard to the relevant corporate constitution and the Corporations Act; but the Court confused the applicant's influence over TZL's directors with the requirement of causation, and the circumstance that he requested payments does not mean that he caused TZL to make payments.
2. As to (1), the issue in the appeal on the question of "claim of right" was that raised by ground 1A, which was whether the trial judge's directions were inadequate by reason that they did not refer to the defence of claim of right. The Court concluded that they were not inadequate, because there was no requirement for a direction that the applicant could be convicted only if the jury were satisfied that he did not have an honest belief that he was entitled to the funds paid to him or at his direction: a defence in the nature of a 'claim of right' is logically incompatible with an offence containing a dishonesty element, and directions as to such a defence were unnecessary and inappropriate. [19] The ground of appeal did not require the Court to determine whether a claim of right defence was available, in respect of all or any of the offences, upon the evidence at trial.
3. As to (2), the jury's verdict, by deciding that the applicant acted dishonestly, when the prosecution case was that his dishonesty was his knowledge that he was not entitled to the money or shares, necessarily rejected the proposition that the recipients (the applicant and his companies) were legally entitled to them. Although this was not the subject of a ground of appeal, it was incidentally addressed in the principal judgment in the course of consideration of ground 1A (which was concerned with the adequacy of the directions as to "claim of right"), as follows: [20] "However, it is not correct that the dishonesty relied on by the Crown was "various deceptions by [the applicant]"; the dishonestly alleged was that the applicant knew that he was not entitled to the relevant shares and moneys. The charge and the case, so articulated, if accepted, was incompatible with a defence of 'claim of right'. The jury were in effect directed that the Crown had to establish that the applicant knew that he was not entitled to cause the transfer of funds (or issue of shares). The jury's verdict implicitly rejected the applicants' justification for the funds transfers and share issue."
4. No slip, oversight, or misapprehension is involved.
5. As to (3), (4), and (5), these matters were not the subject of any ground of appeal, and were not argued in the appeal. The applicant's submissions do not identify any passage in this Court's judgment where any of the alleged misapprehensions was expressed. This Court was not required to, and did not, address these issues, because none of them was raised by the Notice of Appeal, and there was no unreasonable verdict ground. Again, this is an impermissible attempt to reargue the appeal, on grounds not previously advanced.
6. As to (6), this matter was not the subject of any ground of appeal, though again it was addressed incidentally in the course of consideration of ground 1 (the substance of which was a complaint that the directions given to the jury were inadequate, "because they erroneously conflated the physical element (use of position as a director) with the mental element of dishonesty, and that the failure to indicate to the jury that these were independent elements which required separate consideration was exacerbated by the absence of any reference at all in the summing up to the 'use of position' element"). In considering the adequacy of the directions in the circumstances, the Court observed that it was not an issue at trial that the transactions did not involve a use by the applicant of his position as a director, the predominant issue being whether the use was a dishonest one; and the inference that the transactions were a manifestation of a use by the applicant of his position was inescapable, from the circumstance that his only role in and connection with the company was as a director, and from the flow of funds to the benefit of him or his companies. This was a considered view of the Court, for which reasons were given. [21] The applicant's complaint is, in substance, that it was wrong. That is a complaint of error, not of misapprehension. If the reasoned conclusion of this Court is erroneous, the applicant's remedy is not a r 50C application, but an application for special leave to appeal to the High Court.
7. The fourth "reason" identifies no slip, oversight, or misapprehension that could engage r 50C. Moreover, even if it did, the applicant would still face the hurdle of materiality, in circumstances where, although grounds 1 and 1A were both fully considered on the merits, leave to argue them was refused under Criminal Appeal Rules, r 4, by reason that that the applicant had ample opportunity to object to the directions at trial but did not do so. [22]

The application in respect of the sentence appeal

1. The applicant submits, first, that Kentwell requires that this Court must, in resentencing an appellant, "exercise its jurisdiction and consider all the "relevant matters" and circumstances to determine the correct sentence", and that this Court "erred in merely adjusting the sentence so as to reverse the perceived effect of the sentencing error"; and, secondly, with reference to the mandatory considerations in (CTH) Crimes Act 1914 ("Crimes Act"), s 16A, including sub-s (2)(e) - "any injury, loss or damage resulting from the offence" - that "the Court of Criminal Appeal will not be able to sentence the applicant because neither the trial judge nor the Court of Criminal Appeal determined whether the applicant was legally entitled to the identified monies and shares and so cannot determine the injury, loss or damage resulting from the offence."
2. In Kentwell, the High Court held that where the sentencing discretion at first instance is found to have miscarried, it is not for the Court of Criminal Appeal to assess whether, and to what degree, the error in the exercise of the discretion had influenced the outcome, but it must proceed to re-exercise the sentencing discretion independently and afresh: [23] "Spigelman CJ's analysis in Baxter should be accepted. When a judge acts upon wrong principle, allows extraneous or irrelevant matters to guide or affect the determination, mistakes the facts or does not take into account some material consideration, the Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome. The discretion in such a case has miscarried and it is the duty of the Court of Criminal Appeal to exercise the discretion afresh taking into account the purposes of sentencing and the factors that the Sentencing Act, and any other Act or rule of law, require or permit. As sentencing is a discretionary judgment that does not yield a single correct result, it follows that a range of sentences in a given case may be said to be "warranted in law". A sentence that happens to be within the range but that has been imposed as the result of a legally flawed determination is not "warranted in law" unless, in the exercise of its independent discretion, the Court of Criminal Appeal determines that it is the appropriate sentence for the offender and the offence."
3. However, there is a distinction between "re-exercising the sentencing discretion" (which is a decision-making process), and "resentencing" (which is the pronouncement of a new sentence as a result of that process). The High Court also made clear that if, in the exercise of its independent discretion, after taking into account all relevant matters, including evidence of events that have occurred since the sentence hearing, the Court of Criminal Appeal determines that the same, or a greater, sentence is the appropriate sentence for the offender and the offence, then it is not required to resentence the offender, and may dismiss the appeal: [24] "After having identified specific error of the kind described in House, the Court of Criminal Appeal may conclude, taking into account all relevant matters, including evidence of events that have occurred since the sentence hearing, that a lesser sentence is the appropriate sentence for the offender and the offence. This is a conclusion that that lesser sentence is warranted in law. The result of the Court of Criminal Appeal's independent exercise of discretion may be the conclusion that the same sentence or a greater sentence is the appropriate sentence. In neither case is the Court required to re-sentence. Nor is the Court required to re-sentence in a case in which it concludes that a lesser sentence is appropriate for one or more offences, but that a greater sentence is appropriate for another or other offences, with the result that the aggregate sentence that it considers warranted in law exceeds the aggregate sentence that is the subject of appeal."
4. That is because the result of the Court's independent exercise of discretion is that no lesser sentence is warranted in law. What Kentwell dictates is that an appeal can be dismissed, notwithstanding discretionary error by the sentencing judge, on the basis that "no lesser sentence is warranted in law", if, after re-exercising the sentencing discretion, the Court of Criminal Appeal concludes that it would have imposed the same or a greater sentence.
5. Moreover, Kentwell does not establish that, where specific error in the exercise of the sentencing discretion is found, the Court of Criminal Appeal must redetermine the sentence by reconsidering afresh each and every factual matter and evaluation that informed the sentence given by the primary judge, including those in respect of which no complaint was made or sustained. Since Kentwell, this Court has, in Turnbull v R ("Turnbull"), explained the ongoing relevance of findings in the first instance sentencing judgment when resentencing (emphasis added): [25] "In my opinion, where error has been established, the duty of this Court to exercise an independent sentencing discretion is not discharged merely by adopting the sentence imposed at first instance and concluding that "no lesser sentence is warranted in law". This Court must, as was made clear in Kentwell, take into account the purposes of sentencing and any relevant legal sentencing requirements, the agreed or determined facts, its assessment of the criminality involved, together with factors personal to the offender that may bear upon the selection of the appropriate sentence. That includes, as was made clear in Simpson [R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534] and Baxter [Baxter v R [2007] NSWCCA 237], and restated in Kentwell, any post sentencing factors of which evidence has been admitted. It is appropriate to adopt relevant findings of disputed fact made by the sentencing judge. And where assessments or evaluations (for example, of objective gravity or of the offender's prospects of rehabilitation) have been made that have not been the subject of challenge, they also may be adopted and acted upon."
6. In the principal judgment, it was stated (emphasis added): [26] "[151] I have referred, above, to the obviously great weight which her Honour gave to considerations of totality, in imposing a total effective sentence of only 10 years in the context where, if accumulated, the sentences would have totalled 78 years. That has given considerable cause to pause before deciding to proceed to resentence the applicant. Nonetheless, it seems to me inescapable in logic that the two errors identified have resulted in the applicant receiving sentences which, albeit only to a slight extent, exceeded those which would otherwise have been imposed. In other words, had the totality of his conduct not been used to aggravate the offending for individual offences, and had he been regarded as having some if modest prospects of rehabilitation, a slightly lesser sentence would, and ought to have been, imposed in each case. [152] But for those matters, her Honour's statement of the relevant considerations, which has been summarised above, was not impugned, and I would adopt it. I would reduce, by between three and six months, each of the sentences imposed by her Honour which exceeded two years. However, I see no reason to depart from the approach to concurrency adopted by her Honour, and in particular the periods attributable exclusively by reference to each offence, which is reflected in the accumulation."
7. The Court proceeded to pronounce sentences which differed from those imposed by the sentencing judge, resulting in a reduction of the effective term from ten years to nine years and six months, and of the non-parole period from six years to five years and nine months.
8. Those passages did not involve the Court considering whether the sentence imposed at first instance was inside or outside of any appropriate range of sentences, but rather involved the Court exercising its own independent discretion, turning its own mind to the relevant considerations, albeit paying due regard to and permissibly (consistently with Turnbull) adopting those findings and evaluations of the sentencing judge which were not found to be erroneous, ultimately deciding that a lesser sentence was warranted, and proceeding to resentence accordingly. The reference to the impact of totality was analogous to the reference in Kentwell to the position if the Court were to find, in its independent exercise of discretion, "that a lesser sentence is appropriate for one or more offences, but that a greater sentence is appropriate for another or other offences", in which case it is not required to resentence; in the same way, a view by the appellate court that less concurrency and greater accumulation is appropriate may offset a conclusion that lesser individual sentences were appropriate, to produce a conclusion that the sentence it would impose, having regard to all the considerations, is no lesser sentence than that under appeal. In this case, it ultimately did not have that consequence.
9. In other words, consistently with Kentwell and Turnbull, this Court took the view that the sentencing judge's approach, but for the respects in which it was found to be erroneous, was correct, and that approach commended itself to this Court in the independent exercise of its own discretion. If, however, that approach on the part of this Court be inconsistent with Kentwell and incorrect, that would not be a slip, oversight, or misapprehension attracting r 50C, but an error for which the only remedy is an application for special leave to appeal to the High Court.
10. The second aspect of the applicant's submissions in respect of the sentence appeal appears to be that this Court did not - and could not - discharge its function on resentencing, by reason that it and the sentencing judge failed to determine whether the applicant was legally entitled to the moneys and shares he received, and therefore could not determine the injury, loss, or damage resulting from the offence, as required by Crimes Act, s 16A(2)(e).
11. No ground of appeal complained that the sentencing judge had erred in this way. No such submission was advanced on the hearing of the appeal. This is an attempt to re-argue the appeal on different grounds.
12. Moreover, the submission is spurious. It is implicit in the jury's verdict that it found that the applicant was not legally entitled to the moneys and shares he appropriated. This issue did not have to be revisited on sentence.
13. Nothing in respect of which r 50C could be invoked is apparent.

Conclusion

1. As has often been stated, r 50C does not provide for a backdoor application to reargue an unsuccessful appeal, by which new grounds of appeal and arguments can be raised. [27] Save for "Reason 1", which is misconceived in fact, this is such an application. No arguable material slip, oversight, or misapprehension such as could engage r 50C appears from the applicant's written submissions. In the absence of any such matter having been identified, leave to make an application should be refused. In those circumstances, there is no point in convening an oral hearing, let alone is there any issue that would merit consideration by an enlarged bench.
2. The order of the Court is that the applicant be refused leave to make an application under r 50C.

Endnotes

1. Sigalla v R [2021] NSWCCA 22 at [155] (Brereton JA; Hoeben CJ at CL and Cavanagh J agreeing) ("Sigalla No 1").
2. As of 1 May 2021, the Criminal Appeal Rules have been repealed and replaced by (NSW) Supreme Court (Criminal Appeal) Rules 2021. The equivalent provision in the new rules is r 5.4.
3. (2014) 252 CLR 601 at 617-618 [42]-[43] (French CJ, Hayne, Bell and Keane JJ); [2014] HCA 37.
4. Burrell v The Queen (2008) 238 CLR 218 at 225 [24] (Gummow A-CJ, Hayne, Heydon, Crennan and Kiefel JJ); [2008] HCA 34.
5. El Ali v R (No 2) [2019] NSWCCA 289 at [4]-[19] (Basten JA, Simpson AJA and N Adams J) ("El Ali").
6. [2008] NSWCCA 69 at [6]-[7] (Basten JA, Latham and Rothman JJ) ("Alramadan").
7. [2009] NSWCCA 201 at [8] (Beazley JA, Hall and Fullerton JJ) ("Kauwenberghs").
8. Kauwenberghs at [10] (Beazley JA, Hall and Fullerton JJ).
9. Simmons v R (No 2) [2020] NSWCCA 29 at [6] (Macfarlan JA, Adamson and Beech-Jones JJ) ("Simmons"); see also Corliss v R (No 2) [2020] NSWCCA 180 at [3] (Brereton JA), [14]-[15] (Johnson J; Fullerton J agreeing).
10. Application of Ainsley Whitney [2020] NSWCCA 146 at [36] (Meagher JA, Harrison and Button JJ) ("Whitney"), citing Application of Malcolm Potier (No 3) [2015] NSWCCA 306 at [7] (Ward JA, Simpson JA and Wilson J) ("Potier No 3").
11. Miller v R (No 2) (2016) 260 A Crim R 554 at 565-566 [48]-[53] (Beazley P, Fullerton and Hamill JJ); [2016] NSWCCA 158; Dickson v R (No 2) [2018] NSWCCA 183 at [11] (Macfarlan JA), [47] (Wilson J; Schmidt J agreeing) ("Dickson"); Simmons at [6] (Macfarlan JA, Adamson and Beech-Jones JJ).
12. Whitney at [36] (Meagher JA, Harrison and Button JJ), citing Potier No 3 at [7] (Ward JA, Simpson JA and Wilson J).
13. Elliot v R (2007) 234 CLR 38 at 48 [31]-[32] (Gummow, Hayne, Heydon, Crennan and Kiefel JJ); [2007] HCA 51, referring to Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 at 303 (Mason CJ); [1993] HCA 6; Alramadan at [6]-[7] (Basten JA, Latham and Rothman JJ); El Ali at [22] (Basten JA, Simpson AJA and N Adams J); Whitney at [34] (Meagher JA, Harrison and Button JJ).
14. Baghdadi v R (No 2) [2012] NSWCCA 77; Simmons at [6] (Macfarlan JA, Adamson and Beech-Jones JJ).
15. At [229] (Basten JA, Simpson AJA and N Adams J).
16. Tcpt, 1 July 2020, p 1(31)-(38).
17. Tcpt, 1 July 2020, p 12(1)-(6).
18. Simmons at [14] (Macfarlan JA, Adamson and Beech-Jones JJ).
19. Sigalla No 1 at [79]-[96] (Brereton JA; Hoeben CJ at CL and Cavanagh J agreeing).
20. Sigalla No 1 at [90] (Brereton JA; Hoeben CJ at CL and Cavanagh J agreeing).
21. Sigalla No 1 at [70]-[78] (Brereton JA; Hoeben CJ at CL and Cavanagh J agreeing).
22. Sigalla No 1 at [77]-[78] (Brereton JA; Hoeben CJ at CL and Cavanagh J agreeing).
23. Kentwell at 617-618 [42] (French CJ, Hayne, Bell and Keane JJ).
24. Kentwell at 618 [43] (French CJ, Hayne, Bell and Keane JJ).
25. [2019] NSWCCA 97 at [44] (Simpson AJA; Ierace J agreeing); approved in RO v R [2019] NSWCCA 183 at [81]-[82] (Beech-Jones J; Bathurst CJ and N Adams J agreeing).
26. Sigalla No 1 at [151]-[152] (Brereton JA; Hoeben CJ at CL and Cavanagh J agreeing).
27. See, for example, Dickson at [11] (Macfarlan JA), [47] (Wilson J; Schmidt J agreeing). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 July 2021