R v Hiba CORNELL [2015] NSWCCA 258

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v Hiba CORNELL [2015] NSWCCA 258 Hearing dates: 27 May 2015 Date of orders: 24 September 2015 Decision date: 24 September 2015 Before: Hoeben CJ at CL at [1] Johnson J at [2] Beech-Jones J at [3] Decision: (1) Leave to raise grounds 1, 2 and 3 of the conviction appeal be granted;

(2) The appeal against conviction be dismissed;

(3) Leave to appeal against sentence be granted; and

(4) The appeal against sentence be dismissed. Catchwords: CRIMINAL LAW – appeal against conviction and sentence – appellant was a bank officer – appellant found to be part of scheme to defraud bank to provide loan funds to purchase property for inflated sale price –false employment documents submitted in support of loan application – appellant found to have falsely certified employment documents as genuine – one count of use false instrument under former Crimes Act s 301(2) and one count of make false statement with intention to obtain an advantage under former Crimes Act s 178BB – Conviction Appeal – prior to empanelment trial judge ruled that aspects of appellant's approval of earlier loans were admissible for tendency evidence and other aspects admissible for coincidence purposes – Crown addressed jury as though all aspects of the loan applications admissible for coincidence purposes – no reference to tendency evidence – no complaint by Counsel for appellant at trial – trial judge summed up in a manner consistent with Crown address and inconsistent with pre-trial ruling – whether departures from pre-trial ruling occasioned a miscarriage of justice – no unfairness demonstrated – Counsel for Appellant embraced departure from pre-trial ruling – whether departure from pre-trial ruling constituted wrong decision on any question of law – whether pre-trial ruling "binding" – whether evidence properly admissible for coincidence purposes – held no miscarriage of justice – no wrong decision on any question of law – Conviction Appeal – whether verdict unreasonable – Crown case strong without coincidence evidence – Crown case overwhelming with use of coincidence evidence – ground rejected – Sentencing – appellant sentenced to five years imprisonment consisting of two years non-parole and balance of term of three years – whether sentencing judge erred in assessing level of involvement in fraudulent scheme having regard to what was revealed by evidence of appellant's involvement in other loan applications – no error demonstrated – accepted that hardship occasioned to appellant's daughter from separation from appellant amounted to exceptional circumstances – substantial reduction in non-parole period – whether sentencing judge erred in failing to also reduce head sentence – no House v R error shown – appeal against conviction and sentence dismissed. Legislation Cited: - Crimes Act 1900 – s 178BB, s 301 - Criminal Appeal Act 1912 – s 5(1), s 6(1) - Criminal Procedure Act 1986 – s 130A - Evidence Act 1995 – s 95, s 97(1), s 98(1), s 192A - Statute Law (Miscellaneous Provisions) Act (No 2) 2014 (Act No 88 of 2014) Cases Cited: - Anderson v R (1991) 53 A Crim R 421 - Baini v The Queen [2012] HCA 59; 246 CLR 469 - Bugmy v The Queen [1990] HCA 18; 169 CLR 525 - Chamberlain v R (No 2) [1984] HCA 7; 153 CLR 521 - Cheikho v Regina [2008] NSWCCA 191; 75 NSWLR 323 - Delaney v R; R v Delaney [2013] NSWCCA 150 - DSJ v R; NS v R [2012] NSWCCA 9; 84 NSWLR 758 - El-Haddad v R [2015] NSWCCA 10 - Filippou v The Queen [2015] HCA 29 - Harriman v R [1989] HCA 50; 167 CLR 590 - Hay v R [2013] NSWCCA 22 - House v R [1936] HCA 40; 55 CLR 499 - M v R [1994] HCA 63; 181 CLR 487 - Mokhaiber v R [2011] NSWCCA 10 - Morris v R [1987] HCA 50; 163 CLR 454 - Nudd v The Queen [2006] HCA 9; 80 ALJR 614 - Patel v The Queen [2012] HCA 29; 247 CLR 531 - R v Edwards (1996) 90 A Crim R 510 - R v Ford [2009] NSWCCA 306; 273 ALR 286 - R v Girard [2004] NSWCCA 170 - Regina v Robert Brian Grbin [2004] NSWCCA 220 - R v MR [2013] NSWCCA 236 - R v Wirth (1976) 14 SASR 291 - Rasic v R [2009] NSWCCA 202 - SKA v R [2011] HCA 13; 243 CLR 400 - TKWJ v The Queen [2002] HCA 46; 212 CLR 124 - Weiss v The Queen [2005] HCA 81; 224 CLR 300 - Winter v R [2011] NSWCCA 59 - WO v Director of Public Prosecutions (NSW) [2009] NSWCCA 275 Category: Principal judgment Parties: Hiba Cornell – Applicant Crown – Respondent Representation: Counsel: Ms A. Francis – Applicant P.J. Ingram SC – Crown