New South Wales Court of Criminal Appeal CITATION: James Borodin v R, Irene Borodin v R, ED v R, Bogomiagkov v R [2006] NSWCCA 83 HEARING DATE(S): 16/03/2006 JUDGMENT DATE: 28 March 2006 JUDGMENT OF: Sully J at 1; Simpson J at 2; Howie J at 3 DECISION: Appeals dismissed. CATCHWORDS: Criminal Law - Trial practice and procedure - amendment of indictment during Crown case - whether resulted in a miscarriage of justice. LEGISLATION CITED: Crimes Act 1900 - ss 86(2)(a), 97(1), 103 Criminal Procedure Act 1986 - ss 20, 21 House v The King (1936) 55 CLR 499 CASES CITED: R v Stuart (NSWCCA, unreported, 8 March 1996) R v Cook (NSWCCA, unreported, 9 May 1990) James Borodin v Regina PARTIES: Irene Borodin v Regina ED v Regina Bogomiagkov v Regina FILE NUMBER(S): CCA 2005/2100; 2005/2102; 2005/2101; 2005/2098 COUNSEL: J.A. Girdham - Crown P. Bodor QC - Applicants SOLICITORS: S. Kavanagh - Crown G. Mitchell, Bergagnin & Co. - Applicants LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 03/11/0401; 03/11/0460 LOWER COURT JUDICIAL OFFICER: Keleman DCJ IN THE COURT OF CRIMINAL APPEAL 2005/2100 2005/2102 2005/2101 2005/2098 SULLY J SIMPSON J HOWIE J TUESDAY 28 MARCH 2006 James BORODIN v REGINA Irene BORODIN v REGINA ED v REGINA Timothy BOGOMIAGKOV v REGINA Judgment 1 SULLY J: I agree with Howie J. 2 SIMPSON J: I agree with Howie J. 3 HOWIE J: On 16 March 2006 this Court dismissed an appeal against conviction by each of the four appellants and indicated that it would publish its reasons later. These are the reasons for which I joined in the order dismissing the appeals. 4 The four appellants and a fifth accused, BD, were arraigned before a jury and Judge Keleman SC (the Judge) on an indictment containing seven counts to the following effect: 1. Robbery of Mr Li while armed with an offensive weapon, being a knife (s 97(1) of the Crimes Act ). 2. Robbery of Mr Hu while armed with an offensive weapon, namely a knife (s 97(1) of the Crimes Act ). 3. While in company of each other detained Mr Li with intent to obtain a financial gain (s 86(2)(a) of the Crimes Act ). 4. While in company of each other detained Mr Hu with intent to obtain a financial gain (s 86(2)(a) of the Crimes Act ). 5. By threat of unlawful violence to Mr Li and his family, compelled him to affix a name to a paper with intent to defraud (s 103 of the Crimes Act ). 6. By threat of unlawful violence to Mr Li and his family, compelled him to endorse a valuable security with intent to defraud (s 103 of the Crimes Act ). 7. By threat of unlawful violence to Mr Li and his family compelled him to endorse part of a valuable security with intent to defraud (s 103 of the Crimes Act ). Each of the appellants and the co-accused pleaded not guilty and was tried before the Judge and the jury. 5 On day 13 of the trial and after the Crown's principal witnesses, Mr Li and Mr Hu, had given evidence, the Crown applied pursuant to s 20 of the Criminal Procedure Act for leave to amend the indictment as follows: Counts 1 and 2: the word "firearm" to be substituted for the word "knife". Counts 6 and 7: the words "write upon a paper" to be substituted for the words "indorse a valuable security". The application was opposed by counsel for the appellants principally on the basis that it would result in an injustice in light of the manner in which the witnesses had been cross-examined. However, the Judge permitted the Crown leave to amend the indictment and it was amended accordingly. 6 The jury convicted each of the appellants and the co-offender of all counts on the indictment. The appellants have appealed against their convictions on a single ground that asserts that the Judge erred in the exercise of his discretion by allowing the amendment and as a result there was a miscarriage of justice insofar as the appellants were convicted on the amended charges. 7 By reason of the nature of the ground of appeal relied upon, the facts can be dealt with very briefly. The appellant James Borodin owned a company that manufactured formwork for building construction. The company entered into a contract with a building company with respect to a large residential unit development. However, a dispute arose between the two companies and as a result the contract was terminated in June 2001. Mr Borodin's company then commenced civil proceedings for the return of building materials said to be worth over $1 million. 8 Mr Li conducted an accountancy practice and was the accountant for the building company and the developer. Mr Hu was employed in that practice. 9 The Crown case was that in the early evening of 12 July 2002, the appellants and ED, the teenage daughter of the Borodins, entered Mr Li's offices where Mr Hu was present at the time. Mr Borodin was armed with a gun that had a silencer fitted and a magazine. The appellant Bogomiagkov, at Mr Borodin's direction, handcuffed Mr Li and then Mr Hu. Bogomiagkov, who had a knife secreted on him, at some stage briefly threatened the two victims with it. 10 Mrs Borodin told Mr Li that they wanted money. ED attempted to operate a computer in order to gain access to on-line banking facilities but was unsuccessful. At Mrs Borodin's direction, Bogomiagkov searched the two men and money was taken from Mr Li and a bankcard from Mr Hu. The theft of this property gave rise to the two counts of armed robbery. Mr Li said he did not have a credit card, but he was accused of lying and threatened that, if he did not reveal the password for his credit card, his family would be harmed. 11 At Mrs Borodin's direction, Mr Li accessed on his computer a form for the electronic transfer of funds from the building company's account. The form was printed and signatures were photocopied on to it from a similar form that had previously been used to transfer money from the building company to Mr Borodin's company. This conduct gave rise to count 5 on the indictment. Also, at Mrs Borodin's direction, Mr Li drew a cheque from the developer's account and forged the signature upon it. This conduct gave rise to count 7. Further, at her direction, Mr Li signed a cheque on his business's account for $85,000 without filling in the name of the payee. This gave rise to count 6. Mr Li at gunpoint sent the forged transfer form by fax. 12 Mr Borodin and Bogomiagkov then forced the two men into Mr Li's motor vehicle and they drove to the Borodin's family home in a suburb on the outskirts of Sydney. This conduct gave rise to counts 3 and 4 on the indictment. Before leaving, Mr Hu had divulged his PIN for the stolen bankcard and Mrs Borodin and ED went to an automatic teller machine and withdrew $1000. They then travelled independently to the family home. There, during lengthy discussions, Mr Li explained that he was not responsible for the termination of the contract nor had he access to money relating to the building project. After giving assurances that they would not report what happened to the police, the two men were released. 13 The police were contacted a short time later and eventually the appellants and ED were arrested. Mr Borodin in a recorded interview denied the accusations. He maintained that he was at home on the night of the incident. Mrs Borodin also told police that she was at home on the night in question and denied that she had ever been in Mr Li's offices. Mr Bogomiagkov said that on the relevant day he had been working at Silverwater and then travelled to a friend's place at Toongabbie with ED where they spent the evening until about 11.30pm. ED gave a similar account saying that she had been studying at home before going with Bogomiagkov to his friend's home. She said they arrived back home about 11.30pm. 14 The only accused to give evidence at the trial was Mrs Borodin. She denied the offences, raised good character and gave evidence of an alibi. She said that she had received a letter threatening to kill them if they did not drop the civil action. She also maintained that her husband had gone missing for two days in September 2002 and was later found lying injured and half-conscious in their driveway. 15 The defence case for each of the appellants was that the evidence of Mr Li and Mr Hu was fabricated and that telephone and commuter records had been tampered with in order to support their account. 16 In answer to the Crown's application for leave to amend the indictment, written submissions were prepared by one of the two defence counsel setting out the history of the matter and the changing positions of the Crown as to the particulars of the offences with respect to the weapon said to have been used in the robbery. Under the heading "A brief analysis of the evidence of robbery armed with a firearm" is the following: The evidence of both Li and Hu is to the effect that the accused James Borodin stood in the area in or near the doorway to the office of Jerry Li and was either holding or pointing the gun whilst the subject property was stolen. Each of the alleged victims was cross-examined in a manner which encouraged each of them to highlight the role of the gun at that point in the alleged chain of events. This was done with the forensic purpose (and one hopes the effect) of distracting each of the alleged victims from the role, if any, of the knife or that the young male could still be said to have possession of the knife. Similarly, each of the alleged victims was encouraged in cross-examination to the view that the young male searched the alleged victim Hu (and therefore engaged in the activities) with both hands and with both such hands being covered by surgical gloves. This again was done with a view to raising some doubt as to the role, presence or possession of the knife. 17 As Mr Bodor SC counsel for the appellants explained, defence counsel had cross-examined the two witnesses based upon an allegation that the weapon used for the purpose of achieving the robbery was the gun and not the knife. This was so that a submission could be made to the jury that they would not be satisfied beyond reasonable doubt that the victims parted with their property by reason of the threat of violence arising from Bogomiagkov's use of a knife, as alleged in the counts in the indictment, but rather because of the threat arising from Mr Borodin's use of the firearm. In this way it was to be argued that, even if the jury might be satisfied beyond reasonable doubt that the account given by Mr Li and Mr Hu was reliable, the Crown case should still fail on the armed robbery counts. 18 In relation to counts 6 and 7, the written submissions for the defence stated: Mr Li gave evidence to the effect that he filled out part only of the cheque forms. Counsel for these accused immediately apprehended that the documents may not satisfy the definition of "valuable security" or even "part of a valuable security" as averred to in the indictment. A forensic decision was taken to substantially leave this area of the allegations to one side in cross-examination and seek verdicts by direction as to Counts 6 and 7 at the conclusion of the Crown case rather than cross-examine. In taking such a forensic decision the time involved in the witness (sic) giving all of their evidence, and in particular the time spent under cross-examination give (sic) rise to the need for trial counsel to balance the need to cross-examination against the risk that the witness will attract the sympathy of the jury due to the sustained and lengthy nature of cross-examination. These accused have lost the opportunity to cross-examine on a range of significant matters going substantially to the credit of the witnesses Li and Hu. Such lost opportunities include: (i) cross-examination seeking to drawing (sic) attention to the role of the knife in an endeavour to distract attention from the use of the gun (and seek to raise doubts as to the use of the gun). (ii) the manner of the use of the gun. (iii) the testing of the nature of content of what was written on the cheque forms or if anything was written on them at all (iv) any inconsistencies between Li and Hu in this regard. (v) a further exploration (and forensic exploitation) of Hu's relatively less certain view of any dealings with cheque forms. The above list is far from exhaustive and presents but a few examples. The Crown failed to amend the indictment in a timely fashion. The authorities speak of a likely unfairness when such amendments are sought in the later stages of the trial. The loss of opportunity to cross-examine on issues of credit due to a substantive failure of the Crown to disclose relevant matters represents an unfairness to the accused – see Grey v The Queen [2001] HCA 65. 19 The Judge gave reasons for permitting the amendment. Mr Bodor did not, in either his written or oral submissions to the Court, identify any error in the reasons given by the Judge. When asked what was the error in the exercise of the discretion in accordance with the test propounded in House v The King (1936) 55 CLR 499, Mr Bodor replied in effect that the amendments had brought about an injustice by depriving the appellants of tactical decisions made by defence counsel. 20 The Judge noted that the relevant principles were contained in the decision of R v Stuart (NSWCCA, unreported, 8 March 1996) in the following passage quoted by his Honour in the course of his judgment (citations not produced): An indictment may be amended in order to cure a defect contained in it even at a late stage of the trial. Permissible amendments are not limited to formal matters, but may deal with substantial matters. A count may be substituted where the facts proved justify conviction under the amended count. The question which the trial judge must answer in exercising discretion whether to allow the required amendment is whether it can be made without injustice. 21 The Judge came to the view that, despite a complaint by defence counsel that they would have cross-examined the two witnesses differently had the charge referred to the gun rather than the knife, no injustice would be caused by the amendment of the indictment. He offered to have the two witnesses recalled for further cross-examination but this offer was not taken up. 22 In relation to the amendment to counts 6 and 7, the Judge noted that the amendment was to change one of the elements of the offence, as set out in s 103 of the Crimes Act, so that each count accorded with the evidence but without changing the actual conduct that was the subject of each of the charges: the signing of the relevant cheque. In R v Cook (NSWCCA, unreported, 9 May 1990) the amendment to the indictment was made at the end of the Crown case. Notwithstanding the lateness of the change to the wording of the charge, it was held that there was no injustice arising because the factual basis for the charge did not change and the wording of the charge more appropriately reflected the evidence in the Crown case. The Court rejected an argument that the power to amend an indictment was limited to technicalities. 23 In cases such as the present there is strictly speaking no appeal against the exercise of the Judge's discretion. The appeal is concerned with whether there was a miscarriage of justice as a result of the amendment of the indictment. A miscarriage of justice will be shown where the amendment resulted in an unfair trial, whether that unfairness was a result of tactical decisions made by defence counsel based upon the wording of the charge or otherwise. 24 In my opinion it is impossible to see how the amendments resulted in an unfair trial. The only prejudice suffered by the appellants was that the counts in the indictment were to be determined on their merits. With respect I agree with the Judge that it is difficult, if not impossible, to see how, in light of the nature of defence case, the cross-examination might have been significantly different had the indictment been amended at an earlier point in the trial. In any event the Judge offered to have the witnesses recalled and I do not understand how the appellants would have been further prejudiced by that offer being taken up. 25 Section 21 of the Criminal Procedure Act permits the court to make orders for amendment of an indictment where to do so would not result in injustice. Relevant injustice does not arise simply because the amendment of the charge deprives the accused of taking a technical point based upon an inconsistency between the statement of the charge and the evidence in support of it. Tactical decisions may have been made by the defence upon the basis of the wording of the charge, but it does not follow that the trial judge should refuse leave to amend the indictment simply because those tactical decisions will be rendered fruitless. It will only be in a case where the accused would be irreparably prejudiced in meeting the charge as amended that leave should be refused. 26 In the present case there was no miscarriage of justice resulting from the amendment of the indictment and, therefore, the ground of appeal should be rejected. ********** 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. 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