Attorney-General’s Application pursuant to s 108 Crimes (Appeal and Review) Act 2001 (NSW): Re Robert Burton (a pseudonym) [2021] NSWCCA 87

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Attorney-General's Application pursuant to s 108 Crimes (Appeal and Review) Act 2001 (NSW): Re Robert Burton (a pseudonym) [2021] NSWCCA 87 Hearing dates: 9 September 2020 Date of orders: 5 May 2021 Decision date: 05 May 2021 Before: Simpson AJA at [1] Campbell J at [88] N Adams J at [91] Decision: Answers to the questions submitted are: Question 1: No Question 2: No Question 3: Yes Catchwords: APPEALS – jurisdiction of appellate court – discretion to exercise jurisdiction –– Crimes (Appeal and Review) Act 2001 (NSW) s 108 – where Attorney-General or Director of Public Prosecutions has submitted a question of law arising at or in connection with a trial – whether Court of Criminal Appeal can decline to exercise jurisdiction properly invoked CRIME – appeals – directed acquittal – submission to CCA to determine question of law arising at or in connection with trial – determination not affecting acquittal - Crimes (Appeal and Review) Act 2001 (NSW) s 108 – where question submitted concerns capacity of evidence to satisfy elements of offence charged – where trial judge directed acquittal on basis of incapacity of evidence to support finding of causation – whether question so framed is a question of law – whether question arose at or in connection with trial CRIME – fraud – dishonestly cause financial disadvantage by deception – causation – where bet placed with bookmaker by deception – whether winnings paid out by bookmaker capable of constituting financial disadvantage caused by deception CRIME – fraud – dishonestly obtain financial advantage by deception – causation – where bet placed with bookmaker by deception – whether winnings paid capable of constituting financial advantage obtained by deception – whether bet itself capable of constituting financial advantage Legislation Cited: Crimes Act 1900 (NSW), s 192E Crimes (Appeal and Review) Act 2001 (NSW), s 108 Criminal Appeal Act 1912 (NSW), s 5AE Supreme Court Act 1970 (NSW), s 101A Cases Cited: Attorney-General for the State of New South Wales v X (2000) 49 NSWLR 653; [2000] NSWCA 199 Charara v The Director of Public Prosecutions [2001] NSWCA 140 Collector of Customs v Agfa-Gevaert Limited (1996) 186 CLR 389; [1996] HCA 36 Director of Public Prosecutions v Cassell (1995) 80 Crim R 160 Doney v The Queen (1990) 171 CLR 207 at 214-5; [1990] HCA 51 Duncan v Independent Commission Against Corruption [2016] NSWCA143 Elias v The Director of Public Prosecutions (NSW) [2012] NSWCA 302 Ex parte McGavin; re Berne (1946) 46 SR (NSW) 58 Flack v R [2011] NSWCCA 767 Ho and Szeto v R (1989) 39 a Crim R 145 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20 Matthews v Fountain [1982] VR 1045 Mellifont v Attorney General (Qld) (1991) 173 CLR 289 at 305; [1991] HCA 53 Orr v Cobar Management Pty Limited [2020] NSWCCA 220 R v Brown (1989) 17 NSWLR 472 R v Button [1900] 2 QB 597 R v Clucas [1949] 2 KB 226 R v J (1987) 9 NSWLR 615 R v King; (1987) 84 Cr App R 357; [1987] QB 547 R v Lambassi [1927] VLR 349 R v Steven Henry Miller [1992] 95 Cr App R 421 R v Walsh (1990) 52 A Crim R 80 Royall v The Queen (1991) 172 CLR 378; [1991] HCA 27 Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; [1994] HCA 4 Category: Principal judgment Parties: Attorney General for New South Wales Robert Burton (a pseudonym) Representation: Counsel: H Dhanji SC/L Hutchinson P Boulten SC/S Jeliba