Rundle v R [2013] NSWCCA 200

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Rundle v R [2013] NSWCCA 200 Hearing dates: 13 December 2012; 12 February 2013; 13 February 2013 Decision date: 28 August 2013 Before: Simpson J at [1]; Fullerton J at [118]; Davies J at [146] Decision: Appeal against conviction be dismissed. Catchwords: CRIMINAL LAW - appeal - conviction - appellant convicted following trial of two offences pursuant to s 178BB(1) of the Crimes Act 1900 - whether jury verdicts unreasonable or cannot be supported by the evidence - ample evidence on which jury could find charges proved - charges proved beyond reasonable doubt - materiality of statements known to appellant - appeal dismissed Legislation Cited: Crimes Act 1900 Category: Principal judgment Parties: Graeme John Rundle (Appellant) Regina (Respondent) Representation: Counsel: M Thangaraj SC/I McLachlan (Appellant) P McDonald SC/J Single (Respondent) (13/12/12) P McDonald SC/Y Shariff (Respondent) (12/02/13-13/02/13) Solicitors: Lemonis Tantiprasut (Appellant) Commonwealth Director of Public Prosecutions (Respondent) File Number(s): 2009/218704; 2009/218711 Decision under appeal Jurisdiction: 9101 Date of Decision: 2011-09-09 00:00:00 Before: Bozic DCJ File Number(s): 2009/218704; 2009/218711

Judgment 1SIMPSON J: On 24 June 2011, following a six week jury trial in the District Court, the appellant was convicted of two counts on an indictment. He now appeals against the convictions. He does not seek leave to appeal against the non-custodial sentences subsequently imposed. 2Both counts on the indictment were laid under s 178BB(1) (since repealed) of the Crimes Act 1900. At the time the offences are alleged to have been committed, that sub-section provided as follows: "178BB Obtaining money etc by false or misleading statements (1) Whosoever, with intent to obtain for himself or another person any money or valuable thing or any financial advantage of any kind whatsoever, makes or publishes, or concurs in making or publishing, any statement (whether or not in writing) which he knows to be false or misleading in a material particular or which is false or misleading in a material particular and is made with reckless disregard as to whether it is true or is false or misleading in a material particular shall be liable to imprisonment for 5 years." 3Each count alleged that the appellant, on or about 31 May 2004, with intent to obtain a financial advantage for Scots Church Development Pty Ltd [one of a group of companies of which the appellant was an employee], published a statement that he knew to be false or misleading in a material particular. Both charges arose out of a letter written by the appellant on 31 May 2004, which the Crown alleged contained two statements that were false or misleading in a material particular. The charges came to be referred to, respectively, as "the mezzanine charge" and "the profit charge". 4The appellant did not give or call evidence. His response to the charges relied upon analysis of the extensive documentation in the Crown case. The appellant's case was and is that neither statement was, when properly read in the context of the voluminous correspondence and dealings that pre-dated the letter, proven to have been false or misleading, and that, even if either statement were to be so construed, it was not proven to have been false or misleading to the knowledge of the appellant. Critically important to the appellant's case is the context of previous correspondence and dealings between relevant participants. 5An issue also arises concerning the materiality of each of the two statements. 6The sole ground of appeal upon which the appellant relies is that the verdicts of the jury are unreasonable or cannot be supported by the evidence. In order to deal with the ground, it is necessary to set out a good deal of background. A very large quantity of documentary material was in evidence.