Scanlan v Regina [2006] NSWCCA 238

New South Wales Court of Criminal Appeal

CITATION: Scanlan v Regina [2006] NSWCCA 238 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 03/08/2006

JUDGMENT DATE: 9 August 2006

JUDGMENT OF: Spigelman CJ at 1; Hoeben J at 2; Rothman J at 96

DECISION: Appeal against conviction dismissed. Leave to appeal against sentence granted, appeal dismissed.

CATCHWORDS: Conviction and sentence appeal - "lies" direction - bias in summing up - bias in evidentiary rulings - onus of proof - alleged incompetence of trial counsel - totality and accumulation of sentences.

LEGISLATION CITED: Crimes Act 1900

Johnson v The Queen (2004) 205 ALR 346 CASES CITED: Pearce v The Queen (1998) 194 CLR 610 R v Birks (1990) 19 NSWLR 677 at 684 R v Corbett 52 A Crim R 112 at 117

PARTIES: Lynn Doreen Scanlan - Applicant Regina - Respondent Crown

FILE NUMBER(S): CCA 2006/793

COUNSEL: Applicant in person Ms N Noman - Crown

SOLICITORS: Applicant in person S Kavanagh, Solicitor for Public Prosecutions - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/1252

LOWER COURT JUDICIAL OFFICER: Dodd DCJ

LOWER COURT DATE OF DECISION: 04/06/2005

IN THE COURT OF CRIMINAL APPEAL 2006/793

SPIGELMAN CJ HOEBEN J ROTHMAN J

Wednesday, 9 August 2006 Lynn Doreen SCANLAN v REGINA JUDGMENT 1 SPIGELMAN CJ: I agree with Hoeben J. 2 HOEBEN J: Charges and sentence The appellant stood trial on four counts of larceny as a clerk contrary to s156 Crimes Act 1900 and four counts of obtain money by deception contrary to s178BA Crimes Act 1900. The trial took place before Dodd DCJ and a jury between 14 March 2005 and 1 April 2005. On 29 March 2005 at the close of the Crown case, Dodd DCJ directed the jury to return verdicts of not guilty in relation to the four counts of larceny as a clerk (counts 1, 3, 5, and 7). 3 On 1 April 2005 verdicts of guilty were returned in relation to the four counts of obtain money by deception contrary to s178BA Crimes Act 1900. (Counts 2, 4, 6 and 8.) Count 2 alleged obtaining by deception the amount of $56,412.71 between 9 March 2001 and 21 December 2001. Count 4 alleged obtaining by deception the amount of $175,051.29 between 1 January 2002 and 1 October 2002. Count 6 alleged obtaining by deception the amount of $152,875.94 between 2 October 2002 and 24 May 2003. Count 8 alleged obtaining by deception the amount of $12,300.02 between 1 July 1999 and 4 June 2003. Each offence carried a maximum penalty of 5 years imprisonment. 4 On 4 June 2005 the appellant was sentenced to terms of imprisonment as follows: Count 2 – Imprisonment with a non-parole period of 1 year to date from 3 June 2005 and to expire on 2 June 2006 with a balance of term of 1 year to expire on 2 June 2007.