Banovec v R [2012] NSWCCA 137

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Banovec v R [2012] NSWCCA 137 Hearing dates: 25 May 2012 Decision date: 02 July 2012 Before: Basten JA at [1] Hoeben JA at [26] McCallum J at [97] Decision: Conviction Appeal Leave to appeal is granted in respect of Grounds 1 and 3, but the appeal is dismissed. Leave to appeal is refused in respect of Grounds 2 and 4. Sentence Appeal Leave to appeal is granted but the appeal is dismissed. Catchwords: CRIMINAL LAW - conviction appeal - offences of fraudulently omitting to account for money and perjury - whether Crown failed to lead relevant and material evidence - application to lead additional evidence - obligations of Crown when leading evidence at trial - relevance and materiality of additional evidence sought to be relied upon - whether application for offences to be tried separately was properly refused - relevant principles - challenge to direction by a trial judge concerning receipt of funds for personal use - SENTENCE APPEAL - application to adduce additional evidence on sentence - appellant non-Australian citizen - evidence as to policies of Department of Immigration and Citizenship and Department of Corrective Services to non-Australian citizens in custody - such evidence available at time of sentence proceedings but not placed before sentencing judge - need for Court to take into account circumstances of hardship - principles relevant to hardship arising after sentencing - principles relevant to when sentence proceedings should be re-opened. Legislation Cited: Australian Securities and Investment Commission Act 2001 (Cth) - s 67(1) Crimes Act 1900 - ss 178A, 327(1) Crimes (Appeal and Review) Act 2001 (NSW), Pt 7 Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 43 Criminal Appeal Act 1912 (NSW) - ss 5, 6 Criminal Procedure Act 1986 - s 21(2) Migration Act 1958 (Cth), s 501 Cases Cited: AB v The Queen [1999] HCA 46; 198 CLR 111 Bekink v R [1999] WASCA 160; 107 A Crim R 415 De Jesus v R [1986] HCA 65; 61 ALJR 1; 22 A Crim R 375 Einfeld v Regina [2010] NSWCCA 87; 200 A Crim R 1 Gallagher v R [1986] HCA 26; 160 CLR 392 GAR v R (No 1) [2010] NSWCCA 163 Houghton v Western Australia [2006] WASCA 143; 32 WAR 260; 163 A Crim R 226 House v The King [1936] HCA 40; 55 CLR 499 JM v R [2008] NSWCCA 254 R v Abu-Chabake [2004] NSWCCA 356; 149 A Crim R 417 R v Assim [1966] 2 QB 249 at 261 R v Cartwright (1989) 17 NSWLR 243 R v Francipane (NSWCCA, unreported, 23 December 1998) R v J (1987) 9 NSWLR 615 R v Kneebone [1999] NSWCCA 279; 47 NSWLR 450 R v Maharaj (1995) 85 A Crim R 374 R v McCarthy (1984) 14 A Crim R R v Moran (1991) 52 A Crim R 440 R v Mostyn [2004] NSWCCA 97; 145 A Crim R 304 R v Munday [1981] 2 NSWLR 177 at 178 R v O'Connor (1992) 59 A Crim R 278 R v Totten [2003] NSWCCA 207 R v Vachalec [1981] 1 NSWLR 351 The Queen v Apostilides [1984] HCA 38; 154 CLR 575 Whitehorn v The Queen [1983] HCA 42; 152 CLR 657 Category: Principal judgment Parties: Oliver Banovec - Appellant Regina - Respondent Crown Representation: Counsel: Mr M Luitingh - Appellant Mr CP O'Donnell - Respondent Crown Solicitors: CBD Criminal Defence Lawyers - Appellant Commonwealth Director of Public Prosecutions - Respondent Crown File Number(s): 2009/5939 Decision under appeal Date of Decision: 2010-04-23 00:00:00 Before: Ainslie-Wallace DCJ File Number(s): 2009/11/0277