Miller v R

JOHNSON J: This judgment relates to appeals against conviction and sentence following the conviction of the Appellant, Damon Charles Miller, at separate District Court trials in 2007 and 2009 for offences of dishonesty.

Following a trial before GHT Armitage ADCJ and a jury between 4 and 28 June 2007 ('the 2007 trial"), the Appellant was convicted of obtaining a financial advantage by deception contrary to s.178BA Crimes Act 1900, and of four counts of using a false instrument contrary to s.300(2) Crimes Act 1900.

On 14 September 2007, Armitage ADCJ imposed the following sentences: (a) for the s.178BA offence, imprisonment comprising a non-parole period of two years commencing on 19 June 2008 and expiring on 18 June 2010, with a balance of term of two years commencing on 19 June 2010 and expiring on 18 June 2012; (b) on each of the s.300(2) counts, imprisonment comprising a non-parole period of two years commencing on 20 June 2007 and expiring on 19 June 2009 with a balance of term of two years commencing on 20 June 2009 and expiring on 19 June 2011.

Between 27 July 2009 and 21 August 2009, the Appellant stood trial before Knox DCJ, by way of a Judge alone trial ("the 2009 trial"), upon an indictment containing two counts of obtain benefit by deception contrary to s.178BA Crimes Act 1900, three counts of obtain benefit by false statement contrary to s.178BB Crimes Act 1900 and one count of use false instrument contrary to s.300(2) Crimes Act 1900.

On 21 August 2009, Knox DCJ found the Appellant not guilty of one count under s.178BA and guilty of the remaining counts: R v Miller [2009] NSWDC 331.

On 11 December 2009, Knox DCJ imposed the following sentences: (a) On each of Counts 2, 4, 5 and 6 (the offences under s.178BB and s.300(2)) - a fixed term of imprisonment (described in the sentencing order as a term of non-parole imprisonment) for three years commencing on 11 December 2009 and expiring on 10 December 2012. (b) On Count 3 (a s.178BA offence) - imprisonment comprising a non-parole period of three years commencing on 11 June 2010 and expiring on 10 June 2013, with a balance of term of 18 months commencing on 11 June 2013 and expiring on 10 December 2014.

The present appeals have had a protracted history in this Court. The appeal arising from the 2007 trial was listed for hearing in 2009, and was vacated on the application of the Appellant.

Following the lodging of an appeal from the 2009 trial, the Appellant's appeals were mentioned before the Registrar of the Court of Criminal Appeal on many occasions. Both appeals were listed for hearing before this Court on 6 March 2012, but the hearing was vacated on the application of the Appellant.

On 2 August 2012, the appeals were called over before the Registrar who was informed that Mr McGovern SC, instructed by Mr Klees, solicitor, would be representing the Appellant in both appeals.

On 30 August 2012, the appeals were again called over before the Registrar, and a joint application was made that the appeals be fixed for hearing on 1 March 2013 with a one-day estimate, with liberty being granted to the parties to relist the matters for mention. That grant of liberty was not activated.

When the appeals were called on for hearing on 1 March 2013, Mr McGovern SC announced his appearance for the Appellant, and informed the Court that the appeal with respect to the 2009 trial was ready to proceed, but that an adjournment application would be made concerning the appeal from the 2007 trial. The Court had not been placed on notice that any adjournment application was to be made. The Crown opposed the further adjournment of the appeal.

The adjournment application was said to relate to difficulties in the provision of instructions from the Appellant to his legal representatives. In light of the history of the proceedings, the Crown's opposition and the fact that the Court had read the documentary material for the purpose of the appeal, the adjournment application was refused.

The hearing of the appeals proceeded. The appeal from the 2009 trial was heard first. Thereafter, the Court having confirmed the refusal of the adjournment application, the hearing of the appeal from the 2007 trial proceeded with the Appellant appearing for himself. At the request of the Court, Mr McGovern SC and Mr Klees remained in Court whilst that appeal was heard.

The delay in the appeals being heard, attributable to the Appellant, meant that the hearing in this Court took place within three months of the expiry of the Appellant's non-parole period. As will be seen, the variety of grounds advanced by the Appellant, arising from two trials, each with evidence and issues of some complexity, meant that an early determination of the appeals was not a realistic prospect.

It is appropriate to consider first the appeal from the 2009 trial.

The Appellant stood trial before Knox DCJ upon six counts, which were in the following terms: (f) Count 6 (s.300(2) Crimes Act 1900) - Between 31 March 2004 and 30 April 2004 at Sydney, he did use a false instrument, namely a cheque in the amount of $39,633.17 knowing it to be a false instrument, with intention of inducing another person, namely Raymond Gall, to accept the instrument as genuine and because of that acceptance to do an act to the prejudice of another, namely Giovanni Capparelli.

The Appellant was acquitted on Count 1 and convicted on each of Counts 2, 3, 4, 5 and 6.

This Court has the benefit of the trial Judge's reasons for returning the verdicts arrived at following the 2009 trial, which assist the appellate process in this Court: R v Belghar [2012] NSWCCA 86; 217 A Crim R 1 at 9 [26]. It is appropriate to set out parts of the trial Judge's judgment on conviction before turning to the Appellant's grounds of appeal.

Knox DCJ commenced the judgment in the following way: R v Miller at [1]-[7]: "1 The Crown case is based on the following matters, many of which are disputed by the accused: 2 In August 2002, Giovanni Capparelli, then aged 62 years, was introduced to the accused, Damon Charles Miller. Mr Capparelli's wife had died in February of that year. Mr Capparelli said he was then in need of the services of a solicitor. He had issues involving the Department of Community Services (DOCS) with the residence and custody of his two children then aged 15 and 14 years. They were, at that time, living with their maternal aunt and uncle. There were also immigration issues relating to those relatives. Mr Capparelli was distressed about all of those matters. He was still mourning the loss of his wife. 3 Mr Capparelli was aware that he had a superannuation entitlement arising out of his late wife's employment. He also had some shares in various public companies (Woodside, Caltex, Normandy and Newmont Mining). 4 Mr Capparelli and Mr Miller met on a number of occasions. Mr Miller had Mr Capparelli sign a widely drafted Power of Attorney. Mr Capparelli said he did not know what the document was and said that Mr Miller did not advise him what it was. 5 Thereafter, Mr Capparelli gave Mr Miller some documents and Mr Miller, on behalf of Mr Capparelli, contacted DOCS and various institutions including the HIP Superannuation Fund and the share registries. Letters were sent to the institutions on the letterhead entitled 'Miller and Associates, Solicitors, Conveyancers and Agents'. Mr Miller was not, and never had been, a solicitor. Attached to those letters were the Power of Attorney and other completion documents signed by Mr Capparelli. Those letters and documents requested, and purported to authorise, the encashment and distribution of the superannuation entitlement and the sale of the shares. 6 The Crown alleges that a cheque for $39,633.17 (for the late Mrs Capparelli's superannuation entitlements) was sent to Mr Miller. Mr Capparelli said he did not receive any of those monies. Mr Miller said he gave him that money in cash over a period. 7 Mr Capparelli's shares were sold following documents being sent to the various share registries and broking firms. Mr Capparelli said he did not receive any of those proceeds totalling $13,358.20."

The trial Judge expanded upon the Crown and defence cases as follows (at [17]-[23]): "Crown case: particular counts 17 The Crown case was that in August 2002 and subsequently, the accused held himself out to be a solicitor (count 2: February 2003) and that he was the proprietor of, or associated with a firm of solicitors, namely Miller and Associates (count 4: July/August 2003). 18 The accused gave Mr Capparrelli some documents to sign and Mr Capparelli did so, he said, without reading them or knowing what the documents were. One of these documents was a Power of Attorney (count 1: February 2003 - February 2004). 19 On 10 June 2003, the accused used the Power of Attorney to arrange the sale of shares owned by Mr Capparelli and for the proceeds of these sales to be paid into a Bank of Cyprus account. That account had been opened by the accused. The account was subsequently closed down. Mr Capparelli did not authorise these sales and did not receive the proceeds of the sales of the shares. 20 Shortly afterwards, Mr Capparelli gave the accused documents pertaining to his late wife's superannuation fund. There is no issue but that Mr Capparelli was entitled to receive that benefit. The accused suggested that Mr Capparelli keep some of the money ($10,000) to make himself comfortable. Mr Miller rang the relevant officer at the Public Trustee's office in Mr Capparelli's presence stating that he was Mr Capparelli's solicitor. Another document was an application for payment of the superannuation benefit (exhibit T6). Accompanying that document was a letter from the accused attaching the Power of Attorney (exhibit T4). The superannuation fund sent Miller and Associates a cheque for $39,633.17. That cheque was cashed by the accused and had been endorsed on its back with a false signature (count 3: June/July 2003). Mr Capparelli said he never received that money from the superannuation fund, nor did he authorise the payment of it to the accused. 21 Police inquiries revealed that in correspondence from the accused to the superannuation company on 17 February 2003, the accused requested that all monies be paid directly to himself on behalf of Mr Capparrelli and not into the late Mrs Capparelli's estate. The letter was on letterhead entitled 'Miller & Associates Solicitors', which was a false statement (count 5: December 2003). This letterhead was also used for correspondence with the superannuation company on 1 August, 4 August, and 8 December 2003. Specific Crown allegations 22 The Crown case was that the statements by the accused that he was a solicitor were false and misleading, known by him to be false and misleading, and done for the purposes of obtaining a benefit for himself, namely, obtaining for himself, Mr Capparelli's entitlements from the superannuation fund, as well as the distribution to Mr Miller of the proceeds of the sale of Mr Capparelli's shares. Further, that the use by Mr Miller of the Power of Attorney was invalid, that the deed was not a proper Power of Attorney, that it was not witnessed and that it was utilised for purposes which were not authorised. The deed containing the Power of Attorney was never explained to Mr Capparelli by Mr Miller. Defence case 23 The defence case is that the accused never represented that he was a solicitor. Mr Miller had prepared a carefully drafted Power of Attorney for Mr Capparelli to sign (which he did) and advised him as to the scope and extent of the power. Mr Miller said that Mr Capparelli wanted to sell his shares and for the proceeds to be put in an account in Mr Miller's name to avoid Mr Capparelli losing his Centrelink benefits and subsidised housing entitlements. Mr Miller denied receiving the proceeds of the sale of the shares for, or on behalf of, Mr Capparelli and said that, although he had received the superannuation refund for Mr Capparelli, that he had paid that money in cash to Mr Capparelli. The defence case is also that at all times the accused was acting under a Power of Attorney in relation to the totality of the counts and each count. Further that the Power of Attorney was signed by Mr Capparelli and witnessed."

Knox DCJ made findings with respect to the principal Crown witness, Mr Capparelli, and the Appellant, who gave evidence at trial. His Honour said (at [57]-[62]): "Observations: Mr Capparelli 57 Mr Giovanni Capparelli gave evidence confirming the relevant matters relating to him as set out in the Crown case. Mr Capparelli needed to obtain the assistance of the interpreter/translator to read documents. On many occasions he had difficulty following the wording of documents. I did not regard the majority of his evidence or presentation as either exaggerated nor feigned. What was also clear was that Mr Capparelli has a detestation of the accused. He used a number of opportunities to make critical comments towards Mr Miller - often regardless of the question asked. I have therefore viewed his evidence with caution particularly where it was not corroborated or supported. 58 I do regard Mr Capparelli as being a witness of the truth. The exceptions to this finding relates to his evidence as to what he thought Mr Miller was to do for him and in what capacity in relation to obtaining his entitlements to his late wife's superannuation refund and whether his signature to the deed was witnessed. While I do not think that he was aware of precisely what he signed, I find that he did intend that Mr Miller was to act for him and represent him to the HIP Superannuation Fund and the document was an authorisation for that purpose and for him to ultimately receive his late wife's superannuation contributions. I was also not satisfied beyond reasonable doubt of his evidence that the document was not witnessed. 59 Mr Capparelli's memory - though at times hazy - did not appear to be defective in any material respect although, for example, he could not remember when he stopped work and went onto a sickness benefit. There were some inconsistencies between his evidence at the trial and what he had told the police in 2004. I do not regard those as being of material importance in the circumstances of this case. 60 The events and the deprivation of his shares and entitlements had clearly continued to distress and anger Mr Capparelli. That distress and anger was obviously there at the time he made his statements to the police in 2004. There was some conflict between his recollection and details set out in his statement (in 2004) to the police. Observations: Mr Miller 61 I have already indicated in the reasons given in dismissing the stay application my observations of Mr Miller that he is an intelligent, articulate and quick-thinking individual. However, in the main areas of dispute, his accounts were not supported by independent evidence and was totally contrary in many areas to that of independent, and unconnected, witnesses whose evidence I accepted. Findings: Mr Miller 62 I also found Mr Miller to be unreliable and most unimpressive in many aspects of his evidence, in particular, his account of what he and Mr Capparelli said to each other about the sale of the shares, his denials about the existence, preparation and use of the statutory declarations, his denials about not giving the proceeds of sale of the shares to Mr Capparelli, his negotiation of the superannuation refund cheque to Mr Gall and what had prompted him to take that action for the cashing of the cheque in that way."

The trial Judge made some significant findings concerning Mr Capparelli at [63]-[64]: "63 It must have been perfectly obvious to Mr Miller that Mr Capparelli was a person under a series of disabilities, both innate and arising out of the then emotional situation he was in. Mr Capparelli was born in 1940 and is now almost 69 years old. He came to Australia in 1971 unable to speak or write English. He is a slightly built and softly spoken man - though ultimately voluble when pressed on matters concerning his children and the loss of his monies. He gave evidence slowly in a mix of broken English and Italian through an interpreter. He had worked as a labourer with the NSW Railways Workshop and had little formal high school education - at least in English. He said he had never had anything to do with lawyers before. He did not manifest any of the sophistication which would have been required to stage what would have been a relatively elaborate scheme to receive monies and then allege he had not as seems to be implicit in Mr Miller's case. 64 He married his wife in 1986 and had two children born in 1987 and 1988. His wife died of cancer in February 2002. He was facing an investigation and the possible loss of his children to relatives of his late wife who were causing him major difficulties. Mr Miller was aware that that was precisely why he turned to Mr Miller."

His Honour proceeded to make detailed findings observing that, where there was a conflict, he preferred the evidence of Mr Capparelli to that of the Appellant. In particular, the trial Judge found that Mr Capparelli believed, on the basis of the Appellant's representations, that the Appellant was a solicitor: R v Miller at [65].

The trial Judge (at [93]) found that the Appellant represented himself as a solicitor orally, and had utilised documents and letterhead which reinforced this impression: "Both Mr Capparelli and Mr Bourke said that Mr Miller described himself to Mr Capparelli, and to others on the phone in Mr Capparelli's presence, as a solicitor. The letters on a letterhead containing the accused's surname as well as addresses and telephone numbers connected with him, and the firm's use of his surname and that the firm name included the words 'Solicitors, Conveyancers and Agents'. I accept and find that there was no such firm of solicitors nor a solicitor called Damon or David Miller. Virtually all the details on the letterhead had a geographical, personal or friendship connection with Mr Miller and aspects of his life in Campsie and Bardwell Park. Further, Mr Miller's self-description as a solicitor (on the accounts of at least Mr Capparelli and Mr Bourke which I accept) is in conflict with the letterheads of the letters tendered. The typing and content of those letters have also been careful not to include the names of any person - either under the final signature or other than as referred to as 'the writer'."

The trial Judge made further findings adverse to the Appellant at [101]-[102]: "101 Mr Miller was not, and never had been, a solicitor. He knew he was not a solicitor. It was a dishonest and deceitful statement. He knew that was an important representation, not only to Mr Capparelli but also the other institutions involved. Mr Miller not only knew it was false, he knew that both Mr Capparelli and Mr Bourke were misled and that the institutions to which he made the representations would be mislead. Completing the statutory declaration and the associated share sale forms in the way that he did was the only way Mr Miller was able to get the monies paid to himself. 102 The totality of the circumstances relied on by the Crown establish the finding that the representations were made by the accused both orally and in terms of the letters and statutory declarations made. Further, that the only available inference is that those representations were made dishonestly and deceitfully and that he knew that they were dishonest and deceitful as well as being false and misleading. The context of the various aspects of dishonesty and falsity included the deceit of the HIP super fund and the institutions involved in getting the benefit of Mr Capparelli's entitlement as well as the sale of Mr Capparelli's shares."

His Honour found (at [103]) that the monies obtained were retained and used by the Appellant: "I do not accept Mr Miller's evidence that he made cash payments to Mr Capparelli. I am satisfied that Mr Capparelli did not receive any money from, or in satisfaction of, his entitlement to his late wife's superannuation nor from the sale of the shares owned by him. Further, that all those monies were paid to, or ultimately received by, Mr Miller - in the case of the monies received from Mr Gall's company, by instalments. The proceeds of the sale of the shares went into Mr Miller's personal account. There was an estate account opened at that time. There was no reason why that cheque could not have been paid into that account - rather than Mr Gall's account - and an urgent clearance requested. I do not accept that there were the reasons for urgency advanced - particularly given the time periods which had elapsed. Mr Miller said that he waited for the cheques to clear and then paid them to Mr Capparelli in cash. There were no correlating cash withdrawals shown on the bank statements consistent with his evidence - other than for an amount of about $1000."

The trial Judge made the following express findings concerning Count 6 (at [104]-[106]): "104 The Crown relies on the fact that the cheque paid to Mr Gall was fraudulently endorsed with the signature of Mr Capparelli. The Crown relies on the fact that Mr Miller must have known it was fraudulently endorsed. 105 It is clear that the cheque contained a signature that was not Mr Capparelli's - although it is in a form (with the surname preceding the given name) that indicated a substantial familiarity with the person who signed that name with Mr Capparelli's actual signature. Mr Miller's evidence is that when he handed the cheque over, it did not contain that signature. Mr Gall's evidence is that it did - although not the words 'please pay' etc. 106 I accept and find that the signature was not Mr Capparelli's and that Mr Miller knew that it was not Mr Capparelli's signature. Further, that the accused knew that he needed to have a cheque containing such a signature on it to persuade Mr Gall to cash it and make the payments to him, Mr Miller, rather than to Mr Capparelli."

His Honour made the following findings concerning the elements of deception and dishonesty (at [81]-[87]): "Deception 81 One of the main issues in this case is whether the act of the accused in obtaining and using a Power of Attorney was an act of deception. Clearly Mr Capparelli signed the document. His evidence was that he did not understand what the document was or the effect of it, nor was it explained to him, nor did he ask for any explanation of it. I accept that evidence. 82 Mr Miller's account was that it was a carefully drafted document containing the additional paragraphs as set out in the exhibit (exhibit T4). 83 Deception is defined under section 178BA(2) as including a 'deception as to the present intention of the person using the deception ...'. It is also clear that there must be what has been described as 'sufficient connection' and the obtaining of the material benefit. In my view, that is the case here. 84 I find that Mr Capparelli had no intention of providing Mr Miller with a document authorising Mr Miller to utilise the refunds of the superannuation and the share proceeds to his (Mr Miller's) own benefit, and not to the benefit of Mr Capparelli or his family members including his children. 85 I find that Mr Miller was not entitled to either of those amounts other than as the donee of a Power of Attorney for Mr Capparelli. Further that Mr Capparelli never intended nor authorised those amounts to be paid to Mr Miller or for his benefit - R v Hamilton (1991) 92 Cr App R 54; R v Simmonds (VIC CCA, 29/10/92, unreported). Dishonesty 86 The Crown needs to establish that the statements were dishonest and that the accused knew the statements were dishonest. 87 An act of the accused is regarded as dishonest if it is such according to the ordinary notions of the tribunal of fact, according to the standards of ordinary, decent people - Peters v R (1991) 92 CLR 493. Included in that assessment is the issue of whether the accused believed he had a legal right to the property obtained - R v Love (1989) 18 NSWLR 608. Here there is no evidence that the accused had an entitlement to receive and retain the funds for his own use and purposes. The only basis that he was entitled to receive the money, if at all, was pursuant to the Power of Attorney, and then for Mr Capparelli's benefit or at his direction."

After a number of other findings, the trial Judge moved to conclusions and verdicts with respect to each of the six counts (at [107]-[121]): "107 I accept and find that the offences occurred in the time periods and between the dates referred to in each of the counts on the indictment on the basis of the oral evidence and the documents tendered. Count 1 (section 178 BA) Between 16 February 2003 and 29 February 2004 at Bardwell Park in the State of New South Wales, did dishonestly obtain for himself a valuable thing, namely a cheque in the amount of $39,633.17 by a deception, namely that he, Damon Charles Miller, was at the time acting on behalf of Giovanni Capparelli pursuant to a power of attorney. 108 The issue is whether the accused dishonestly obtained for himself the superannuation cheque by a deception, namely, that he was acting pursuant to a Power of Attorney on behalf of Mr Capparelli. Clearly Mr Miller was acting pursuant to a Power of Attorney that bore the signature of Mr Capparelli. 109 Mr Capparelli wanted Mr Miller to act for him to obtain the superannuation entitlement. He signed a document knowing that it was a formal document, which Mr Miller needed to obtain that refund. Mr Capparelli may not have known precisely what that document was nor what its powers were but there is, in my view, no doubt that he was aware that he was signing a formal document authorising Mr Miller to act on his behalf. 110 I do not think that the Crown has established beyond reasonable doubt that Mr Connerly did not witness the Power of Attorney. Clearly a signature of a Mr Colm Connerly was on that deed. Also it is clear that Mr Capparelli knew of the person called 'Colin' and that he had an Irish accent. If Mr Connerly remained outside in the car - as he did according to Mr Capparelli's evidence - it is difficult to see how Mr Capparelli would have known either his name (even as 'Colin') or the details of his accent. He clearly met him at stage, although it is not clear precisely when. I do not think the Crown has established that Mr Connerly did not witness the deed. Accordingly, I do not think that the Crown has established that the Power of Attorney was not a valid document or that there was a deception in that regard. 111 The accused is acquitted of this count. Count 2 (s 178BB) Between 16 February 2003 and 19 February 2003 at Bardwell Park in the State of New South Wales, with intent to obtain for himself a valuable thing, namely, a cheque from HIP Superannuation Fund, did publish a statement, namely that Miller and Associates are solicitors, which statement he then knew to be false and misleading in a material particular. 112 I find that the accused during those dates, with the intent to obtain the superannuation entitlement cheque for himself, made or published a statement, namely, letters on the letterhead containing the words 'Miller and Associates, Solicitors, Conveyancers and Agents' knowing the statements that Miller and Associates were solicitors was false or misleading in a way which he knew was going to be material and important to those to whom the letters and contents were forwarded, namely, the HIP Superannuation Fund administrators. 113 In my view, all the elements of this offence have been established beyond reasonable doubt. The accused is found guilty of this count. Count 3 (s 178BA) Between 9 June 2003 and 19 July 2003 at Sydney in the State of New South Wales, did dishonestly obtain for himself a financial advantage, namely deposits made by Tolhurst Noall Limited into a bank account in the name of Damon Charles Miller by a deception, namely that Damon Charles Miller was authorised to realise the value of shares belonging to Giovanni Capparelli. 114 I find that the accused dishonestly obtained for himself the deposits made into his account by a deception, namely, that he was entitled to realise the value of the shares of Giovanni Capparelli. 115 In my view, all the elements of this offence have been established beyond reasonable doubt. The accused is found guilty of this count. Count 4 (s 178BB) Between 31 July 2003 and 5 August 2003 at Bardwell Park in the State of New South Wales, with intent to obtain for himself a valuable thing namely a cheque from HIP Superannuation Fund, did publish a statement, namely that Miller and Associates are solicitors, which statement he then knew to be false and misleading in a material particular. 116 I find that the accused during the dates specified with the intent to obtain the superannuation entitlement cheque for himself made or published a statement, namely letters on the letterhead of Miller and Associates knowing the statements that Miller and Associates were solicitors was false or misleading in a way which was going to be material and important to those to whom the letters and contents were forwarded, namely the HIP Superannuation Fund administrators. 117 In my view, all the elements of this offence have been established beyond reasonable doubt. The accused is found guilty of this count. Count 5 (s 178BB) Between 4 December 2003 and 9 December 2003 at Bardwell Park in the State of New South Wales, with intent to obtain for himself a valuable thing namely a cheque from HIP Superannuation Fund, did publish a statement, namely that David Miller is a solicitor, which statement he then knew to be false and misleading in a material particular. 118 I find that the accused during the dates specified with the intent to obtain the superannuation refund cheque for himself made or published a statement, namely, the statutory declaration, knowing the statements that David Miller was a solicitor was false or misleading in a way which was going to be material and important to those to whom the letters and contents were forwarded, namely, the HIP Superannuation Fund administrators. 119 In my view, all the elements of this offence have been established beyond reasonable doubt. The accused is found guilty of this count. Count 6 (s 300(2)) Between 31 March 2004 and 30 April 2004 at Sydney in the State of New South Wales, did use a false instrument, namely a cheque in the amount of $39,633.17 knowing it to be a false instrument, with intention of inducing another person, namely Raymond Gall, to accept the instrument as genuine and because of that acceptance to do an act to the prejudice of another, namely Giovanni Capparelli. 120 I find that on the dates specified that the accused used the cheque for $39,633.17 endorsed with the false signature of Giovanni Capparelli which Mr Miller knew was a false signature to induce Raymond Gall to accept the cheque as genuine, to enable the cheque to be cashed into Mr Gall's company account of Hencot Pty Ltd. and thereby to enable the proceeds of payment of that cheque to be paid to the accused's account and not to Giovanni Capparelli. 121 In my view, all the elements of this offence have been established beyond reasonable doubt. The accused is found guilty of this count."

In Amended Grounds filed on 28 February 2013, the Appellant relied upon six grounds of appeal with respect to conviction, some with multiple components. The pleaded grounds state: (a) Ground 1 - On the finding of Knox DCJ that the Appellant was authorised pursuant to a Power of Attorney to act on behalf of Mr Capparelli, his Honour should have concluded that Count 3 of the indictment had not been established beyond reasonable doubt, in that it had not been established beyond reasonable doubt that the Appellant was not authorised to realise the value of the shares belonging to Mr Capparelli. (c) Ground 3 - Further or alternatively to Ground 2, Knox DCJ erred in convicting the Appellant on Counts 2, 4 and 5 because he omitted to identify and make findings about the relevant elements of the charges alleged in the indictment and, in particular, because s.178BB(1) Crimes Act 1900 did not make it an offence for a person to make or publish a statement which is false and misleading in a material particular, so that the verdicts of Knox DCJ on Counts 2, 4 and 5 were unsafe and unsatisfactory. (d) Ground 4 - Knox DCJ erred in convicting the Appellant on Count 6 in the indictment, because the charge did not disclose an offence punishable by law, or alternatively failed to identify essential factual ingredients of the alleged offence.

It is useful at this point to make some observations concerning the functions of this Court considering an appeal against conviction following a trial on indictment. These comments apply generally to appeals from conviction by a jury (such as the 2007 trial) or conviction by a Judge sitting alone (such as the 2009 trial).

This Court is a court of error operating within the confines of ss.5-6 Criminal Appeal Act 1912: R v Moffatt [2000] NSWCCA 174; 112 A Crim R 201 at 202 [3]-[5]. Put shortly, s.6(1) provides for an appeal against conviction upon the ground: (a) that the verdict was unreasonable or cannot be supported on the evidence; (b) that there was a wrong decision on any question of law; (c) on the basis of any other ground, there was a miscarriage of justice.

Even where error is otherwise demonstrated, it is open to the Court to apply the proviso in s.6(1) and to dismiss an appeal against conviction if the Court concludes there was no substantial miscarriage of justice.

In Fleming v The Queen [1998] HCA 68; 197 CLR 250, the High Court observed at 256 [12], in the context of a conviction appeal from a trial on indictment by Judge alone, that use of the potentially confusing phrase "unsafe and unsatisfactory" to cover the several elements in s.6(1) Criminal Appeal Act 1912 is liable to mislead, and that there was no substitute for giving attention to the precise terms of s.6(1) itself. This statement will be kept in mind in addressing grounds of the Appellant which use the "unsafe and unsatisfactory" formula.

The Appellant's grounds of appeal concerning the 2009 trial contend that the trial Judge erred, in varying respects, so that one or more of the verdicts of guilty should be set aside by this Court.

No ground of appeal arising from the 2009 trial contends that any verdict was unreasonable. Rather, Grounds 1-5 assert specific errors which are largely claims of legal error. Ground 6 is a fresh or new evidence ground.

To the extent that consideration of any ground involves an examination of the facts, it is appropriate to keep in mind the strong credibility findings made by the trial Judge which were adverse to the Appellant: Fleming v The Queen at 266-267 [44]-[46]; Keir v R [2007] NSWCCA 149 at [20].

In addition, several grounds (particularly arising from the 2007 trial) require leave under Rule 4 Criminal Appeal Rules. With respect to those grounds, it is for the Appellant to demonstrate that the ground is arguable and that a miscarriage of justice has resulted so that leave should be granted to rely upon the ground: Papakosmas v The Queen [1999] HCA 37; 196 CLR 297 at 319 [72]; R v Wilson [2005] NSWCCA 20; 62 NSWLR 346 at 352-353 [20]-[24].

The terms of Ground 1 appear at [30](a) above. The Appellant's Submissions

Mr McGovern SC contended that the verdicts of acquittal on Count 1 and conviction on Count 3 were inconsistent so that the conviction on Count 3 should be quashed, applying the principles in Mackenzie v The Queen [1996] HCA 35; 190 CLR 348.

It was submitted that it was necessary for the Crown to prove, in Count 3, a causal connection between the deception used and the financial advantage obtained for the purpose of s.178BA Crimes Act 1900. The question here, it was submitted, was whether the deception relied upon, that the Appellant was authorised to realise the value of shares belonging to Mr Capparelli, was an operative cause of the obtaining of a financial advantage, namely deposits made by Tolhurst Noall Limited into a bank account in the name of the Appellant. Mr McGovern SC submitted that the focus is upon the question whether or not the Appellant was authorised.

Senior counsel noted, with respect to Count 1, his Honour's finding that the Crown had not established beyond reasonable doubt that the Power of Attorney was not a valid document or that there was a deception in that regard: R v Miller at [110] (at [29] above).

The case against the Appellant in relation to Count 3 concerned the Appellant making a request of Mr Peter Morgan, of Tolhurst Noall Stockbrokers, to sell Mr Capparelli's shares in Woodside Petroleum, Caltex Australia Limited and Newmont.

The Appellant submitted that there was no evidence that Mr Capparelli had signed the Power of Attorney whilst reasonably mistaken about the nature or extent of the obligations created by it: Petelin v Cullen [1975] HCA 24; 132 CLR 355. It was noted that, during the course of the trial, the trial Judge had commented that this was not a non est factum case (AB828).

Mr McGovern SC submitted that the Power of Attorney constituted a general authority to take steps on behalf of Mr Capparelli, which extended to the sale of Mr Capparelli's shares.

Reliance was placed upon ss.159, 161 and 163B Conveyancing Act 1919, which applied to these events, with the Powers of Attorney Act 2003 having no application.

It was submitted that s.163B Conveyancing Act 1919 supported the Appellant's submission that the Power of Attorney extended to the sale of Mr Capparelli's shares. Section 163B Conveyancing Act 1919, in 2003, provided as follows: "163B Power conferred by prescribed form of instrument (1) Subject to this section, an instrument (whether or not under seal) in or to the effect of the form in Schedule 7 confers on the attorney thereby appointed authority to do on behalf of the person executing the instrument anything the person executing the instrument may lawfully authorise an attorney to do. (2) The authority conferred by an instrument referred to in subsection (1) does not include: (a) authority to exercise or perform any power, authority, duty or function as a trustee conferred or imposed on the person executing the instrument, or (b) unless it is expressly conferred by the instrument - authority to execute an assurance or other document, or do any other act, as a result of which a benefit would be conferred on the attorney appointed by the instrument. (3) Where an instrument referred to in subsection (1) specifies any conditions or limitations to which the authority conferred by the instrument is to be subject, the authority is so conferred subject to compliance with those conditions or limitations."

Mr McGovern SC submitted that the Appellant was entitled to rely upon the Power of Attorney as against Mr Capparelli and any other person. He was authorised to deal with the shares. The Crown had not established beyond reasonable doubt that the Power of Attorney did not authorise the Appellant to realise the value of the shares.

Viewed in this way, the Appellant submitted that the trial Judge's findings with respect to Count 1 rendered it inevitable that the Appellant be acquitted on Count 3, so that the conviction on Count 3 was inconsistent and should not stand. Crown Submissions

The Crown pointed to the textual differences between Counts 1 and 3. Further, it was submitted that the trial Judge's findings with respect to Counts 1 and 3, by reference to the contents of each charge, serve to explain the different verdicts reached by the trial Judge.

The Crown noted the trial Judge's finding that despite Mr Capparelli's desire to have the Appellant act for him in relation to the claim for his wife's superannuation, that desire "did not extend to wanting his shares sold by Mr Miller. His denial of that was both colourful and emphatic": R v Miller at [92].

The Crown submitted that the trial Judge had directed himself specifically as to the requirement that there be a causal connection between the deception and the obtaining of the financial advantage. Count 1 was directed to the Appellant dishonestly obtaining for himself a valuable thing, a cheque in the amount of $39,633.17. Count 3, on the other hand, was directed to the Appellant dishonestly obtaining for himself a financial advantage, namely deposits made by Tolhurst Noall Limited into a bank account of the Appellant.

The Crown submitted that there was no inconsistency in the trial Judge's findings in respect of the Power of Attorney for several reasons. Firstly, the trial Judge had accepted the evidence of Mr Capparelli that he did not fully understand what he was signing and that it was not explained to him, with the Appellant's evidence on this issue being rejected. Secondly, an examination of the Power of Attorney in question (Exhibit T22) did not support the Appellant's contention. The Crown submitted that, properly construed, the Power of Attorney did not authorise the Appellant to sell shares held in the name of Mr Capparelli.

Thirdly, it was submitted that Count 3 did not rely on the presentation of the Power of Attorney alone. The deception was stated specifically to be that the Appellant "was authorised to realise the value of shares belonging to Giovanni Capparelli". The Crown submitted that, on no view of the evidence, was the Appellant so authorised, and that is what his Honour found.

The Crown submitted there was no inconsistency in the verdicts with respect to Counts 1 and 3. Decision

The Appellant bears the burden of establishing inconsistency of verdicts, and it is only where inconsistency rises to the point that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside: Mackenzie v The Queen at 368; Still v R [2010] NSWCCA 131 at [58].

A ground of appeal asserting inconsistent verdicts is encountered more frequently with respect to verdicts of a jury. Of course, where this ground is relied upon arising from a Judge-alone trial, this Court has the benefit of the reasons of the trial Judge, to be considered in conjunction with the evidence adduced at the trial. It is necessary to read fairly the entirety of the trial Judge's reasons which may bear upon the question of suggested inconsistency between verdicts.

In Flack v R [2011] NSWCCA 167 at [36]-[38], the following was said concerning s.178BA Crimes Act 1900: "36 On a prosecution for an alleged offence under s.178BA Crimes Act 1900, it is not necessary for the Crown to establish that it was the person deceived who suffered the relevant loss: R v Ho; R v Szeto at 147. 37 What must be established, however, is a causal connection between the deception used and the financial advantage obtained. The deception must have been the means whereby the financial advantage was obtained, or the effective cause of the financial advantage being obtained. It is an essential ingredient of an offence under s.178BA that the cause of the giving of the financial advantage was the deception used by the accused person: R v Stanhope (NSWCCA, unreported, 10 September 1987, pages 6-8); R v Clarkson [1987] VR 962 at 980; R v Ho; R v Szeto at 147. 38 The question whether the deception was an operative cause of the obtaining of financial advantage, falls to be answered as a question of fact by the members of the jury applying their commonsense: R v King [1987] 1 QB 547 at 553."

To address this ground of appeal, it is appropriate to refer to the Power of Attorney dated 20 January 2003 (Exhibit T22). Clauses 1 and 2 of the Power of Attorney (parts of the standard form) provided that Mr Capparelli appointed the Appellant: "1. ... to be my attorney(s) (where more than one jointly and/or severally) to exercise, subject to any conditions and limitations specified in Part 2 of this Instrument, the authority conferred on him/her/them by Section 163B of the Conveyancing Act, 1919, to do on my behalf anything I may lawfully authorise an attorney to do. 2. In the exercise of the authority conferred on him/her/them by Section 163B of the Conveyancing Act, 1919, my attorney(s) is/are authorised to execute an assurance or other document, or do any other act, whereby a benefit is conferred on him/her/them."

The conditions and limitations contained in Part 2 of the Power of Attorney were as follows: "1. This power of attorney authorises the Donee to carry out all matters relating to the estate of my late wife, Merma Capparelli and arising out of that estate including the opening of bank accounts related to the estate and the depositing and withdrawl [sic] of funds and their distribution. 2. This power of attorney also authorises the Donee to carry out all matters relating to funds due to myself and to collect and deposit those funds and to make withdrawls [sic] from accounts conducted in his name or in the name of the estate the opening of which I authorise."

A further important piece of evidence with respect to Count 3 was the Appellant's letter to Mr Morgan at Tolhurst Noall Sharebrokers dated 11 June 2003 (Exhibit T3; AB 287). In that handwritten letter, the Appellant confirmed that he acted for Mr Capparelli pursuant to the relevant Power of Attorney, listed a series of Mr Capparelli's share holdings and requested Mr Morgan to "realise funds associated with the sale of Mr Capparelli's shares and deposit those funds into my account", being a nominated account in the Appellant's name with the Bank of Cyprus.

It is necessary to read paragraphs 1 and 2 of the conditions and limitations together. Those conditions and limitations qualify and restrict the earlier general power contained in paragraphs 1 and 2, which refer expressly to s.163B Conveyancing Act 1919. Paragraph 1 of the conditions and limitations referred expressly to the estate of Mr Capparelli's wife. There was no mention of a power to sell Mr Capparelli's shares anywhere in the document.

At this point, an important finding of the trial Judge must be noted. It was the evidence of Mr Capparelli, accepted by the trial Judge, that the authority granted to the Appellant extended to aspects concerning the estate of his late wife. As the Appellant well knew, it was never intended by Mr Capparelli that the Appellant be authorised to sell Mr Capparelli's own shares, let alone deposit the proceeds of sale of those shares into the Appellant's own bank account.

The second paragraph of the conditions and limitations should be construed as relating back to the subject matter of the first paragraph, namely matters relating to the estate of Mr Capparelli's late wife. Upon this approach, the Power of Attorney did not constitute authority for the Appellant to sell Mr Capparelli's shares.

Further, it was the Appellant's handwritten letter to Mr Morgan (Exhibit T3) which included express false statements that he was authorised to realise the specified shares and deposit the resulting funds into his own account. On the trial Judge's findings, the Appellant well knew that he was not so authorised. This document played an important role in the determination of Count 3. Unlike Count 1, which referred to the Power of Attorney only, Count 3 alleged a dishonest obtaining by the Appellant by a deception which went beyond the Power of Attorney.

It was open to the trial Judge to be satisfied that the Appellant dishonestly obtained for himself a financial advantage, being deposits made by Tolhurst Noall Limited into the Appellant's own bank account, by a deception, namely that he was authorised to realise the value of shares belonging to Mr Capparelli.

I do not consider that the Appellant's submissions under this ground are assisted by anything said in Petelin v Cullen. Indeed, the finding of the trial Judge was that Mr Capparelli signed the Power of Attorney understanding that the Appellant may use it to obtain the superannuation payment, but with no knowledge that the Power of Attorney may be used by the Appellant to do anything at all with respect to Mr Capparelli's shares. As the trial Judge observed (see [51] above), Mr Capparelli denied that he wished the Appellant to do anything at all with his shares, a denial that was "both colourful and emphatic".

Nor is the Appellant assisted by statements concerning the scope of authority in Toll (FGCT) Pty Limited v Alphapharm Pty Limited [2004] HCA 52; 219 CLR 165, to which reference was made in the course of oral submissions. It is necessary to keep in mind the trial Judge's findings concerning the significant vulnerabilities of Mr Capparelli (at [22] above), as well as the finding that the Appellant acted dishonestly to exploit Mr Capparelli by acting (in the manner alleged in Count 3) in a way that was entirely contrary to the wishes of Mr Capparelli.

To the extent that submissions on behalf of the Appellant under this ground seek to rely upon aspects of the Appellant's own evidence, it is necessary to keep in mind that the trial Judge comprehensively rejected the Appellant as a credible and reliable witness. This Court, as a court of error, should take into account the advantage of the trial Judge in seeing and hearing the Appellant give evidence in considering what use can be made of his evidence on appeal to this Court.

In my view, there is no inconsistency between the verdicts on Count 1 and Count 3, let alone an inconsistency rising to the point that intervention of this Court is necessary to prevent a possible injustice. Having regard to the offences alleged in Counts 1 and 3, and the evidence which related to them, it was open to the trial Judge to reach the verdict returned on Count 3.

I would reject the first ground of appeal.

Grounds 2 and 3 were argued together and it is appropriate that the grounds be considered together in this judgment.

Ground 2 focuses upon the offences under s.178BB charged in Counts 2, 4 and 5, which appear at [16](b), (d) and (e) above. The first leg of Ground 2 asserts that these counts allege an offence not known to the law. The second limb of Ground 2 contends, in the alternative, that Counts 2, 4 and 5 were bad for duplicity.

Section 178BB(1) (now repealed) was in the following terms: "178BB Obtaining money etc by false or misleading statements (1) Whosoever, with intent to obtain for himself or herself 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 or she 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. ..." The Appellant's Submissions

It was submitted for the Appellant that each of the s.178BB counts contained four elements, namely: (a) the publishing of the statement by the Appellant; (b) which was false in a material particular; (c) which the Appellant knew to be false in a material particular; and (d) which was made by the Appellant with intent to obtain, for himself, a financial advantage.

By Ground 2, the Appellant contends that each of Counts 2, 4 and 5 did not charge an offence known to the law as the formula "false and misleading in a material particular" was used, instead of the words of s.178BB(1), being "false or misleading".

In support of the second limb of Ground 2, the Appellant submitted that, by use of the term "false and misleading", Counts 2, 4 and 5 described two separate offences rolled into the one count, contrary to the rule against duplicity. Reliance was placed upon Johnson v Miller [1937] HCA 77; 59 CLR 467 at 497-498; S v The Queen [1989] HCA 66; 168 CLR 266 at 280-281 and Walsh v Tattersall [1996] HCA 26; 188 CLR 77 at 104-112.

In support of Ground 3, the Appellant points to the trial Judge's finding concerning Counts 2, 4 and 5 that the Appellant "made or published a statement": R v Miller at [112], [116], [118] (at [29] above). It was noted that each of Counts 2, 4 and 5 alleged that the Appellant did publish a statement, with no reference to the statutory alternative of making a statement.

It was submitted for the Appellant that the trial Judge, in this way, had not used the words contained in the indictment and, in so doing, had omitted to identify precisely the elements of the charges and to identify precisely the requirements that needed to be established to convict the Appellant, and the factual matters upon which he relied to prove that each charge was made out. Reliance was placed upon the decision of this Court in R v Rinaldi; R v Kessey (1993) 30 NSWLR 605.

It was submitted that there is a lack of necessary findings in the reasons and that the ultimate findings did not establish the offences as charged.

It was submitted further, with respect to Count 2, that the Appellant could not have been convicted on this charge unless the trial Judge had taken into account the Power of Attorney as a relevant factor in assessing the Appellant's intention.

With respect to Count 4, it was submitted that there was nothing in the text of the relevant "Miller and Associates" letter that supported any claim by the Appellant to the cheque that was subsequently paid over, with the letter relating solely to the claim or entitlement of Mr Capparelli.

With respect to Count 5, it was submitted that there must be established to the criminal standard, a nexus between the statement and the obtaining of the cheque. It was submitted that the trial Judge could not have reached "a safe and satisfactory conclusion" on the issue without construing the statement in its textual context, and without weighing up and taking into account the Power of Attorney. Crown Submissions

In answer to the Appellant's submission based upon the inclusion in Counts 2, 4 and 5 of the words "false and misleading" rather than the statutory alternatives, the Crown submitted that the element may be proved by either feature or by both. By using both terms, it was submitted that the Crown had taken on a heavier burden than was necessary in establishing one or the other only. It was submitted that no miscarriage of justice had been demonstrated by the Appellant nor any unfairness in the conduct of the trial.

With respect to the Appellant's duplicity argument in the second limb of Ground 2, the Crown submitted that the cases relied upon by the Appellant all concerned circumstances where there was more than one act relied upon in support of the charge. The Crown submitted that that was not so in the present case. In each of Counts 2, 4 and 5, there was only one statement, or act of publication, relied upon for each count. There were three separate representations, charged separately. In these circumstances, the Crown submitted that no issue of duplicity arises.

With respect to the complaint in Ground 3 that the trial Judge had used the words "made or published" in his findings, the Crown submitted that this was simply a slip in circumstances where the indictment alleged in each case that the Appellant did "publish a statement".

The Crown pointed to documentary evidence which supported a publication by the Appellant in the manner alleged in each of Counts 2, 4 and 5.

The Crown submitted that any defect in the indictment had been cured by the verdicts, relying upon Doja v R [2009] NSWCCA 303; 198 A Crim R 349.

If the Court found error under Grounds 2 or 3, the Crown submitted that the proviso ought be applied and that no substantial miscarriage of justice had occurred. Decision

At the outset, it is appropriate to observe that no point was taken during the trial concerning the presence of the words "false and misleading" in Counts 2, 4 and 5, in the manner now complained of in Ground 2. It may be taken that the Appellant and his counsel understood the case which he was called upon to meet with respect to each of the s.178BB counts.

The deficiencies in these counts do not, in my view, give rise to a finding that the offences charged are not known to the law. These were imperfect formulations of known offences. Applying the reasoning in Doja v R and Tonari v R [2013] NSWCCA 232 at [66]ff, the charges alleged offences known to the law. The defects were, in any event, cured by the verdicts: Doja v R at 366-372 [107]-[130], 382 [181]. As the Crown has observed, the formulation in the counts involved the Crown having to establish additional components, of which the trial Judge was satisfied, findings which were open to his Honour in the circumstances of the case.

I accept the Crown submission that duplicity is not demonstrated in the circumstances of this case. A single set of events was alleged in each count, not giving rise to any uncertainty as to the charges brought against the Appellant. The Appellant's argument concerns what are, in effect, drafting errors in the formulation of the charges contained in Counts 2, 4 and 5.

The Appellant has failed to demonstrate that the charges did not allege offences known to the law. The Appellant has failed to demonstrate that a miscarriage of justice has occurred or that any other basis exists for this Court to intervene.

With respect to Ground 3, to the extent that his Honour utilised words in parts of his finding which did not correspond with the terms of the charges ("made or published" instead of "published"), I accept the Crown submission that these may be appropriately characterised as slips. A fair reading of the entirety of his Honour's judgment supports this conclusion.

Further, Counts 2 and 4 each alleged that the Appellant published a statement "that Miller and Associates are solicitors". Count 5 alleged that the Appellant published a statement "that David Miller is a solicitor". There was very substantial evidence that the Appellant had acted in these ways.

With respect to Count 2, the Crown relied upon a letter dated 17 February 2003 on the letterhead "Miller and Associates, Solicitors, Conveyancers and Agents" (Exhibit T14, AB270). Other evidence in the trial established that the address on the letterhead was connected to the Appellant, being premises of his wife's clothing or dry cleaning business, and that the landline number on the letterhead was also connected to that business. The claim form which accompanied that letter was also in evidence (Exhibit T6, AB246-249). Other evidence in the trial established that there was no firm of solicitors by that name practising at that time at Bardwell Park. As previously mentioned, the trial Judge made a finding adverse to the Appellant that he had represented himself as a solicitor. The combination of documentary and oral evidence constituted a very strong Crown case on this issue.

With respect to Count 4, a letter dated 1 August 2003 (on the same letterhead as in Count 2) was in evidence (Exhibit T15, AB273-274). As well as the features of the letterhead that linked the document to the Appellant referred to above, the contents of this letter operated adversely to the Appellant, serving to identify him as "the writer" by reference to, amongst other things, evidence in the trial of the Appellant's knowledge of the personal family matters referred to in the letter. Once again, there was a very strong Crown case with respect to this count.

With respect to Count 5, the Crown relied upon a further letter on the same letterhead dated 8 December 2003 (Exhibit T16, AB276). That letter referred to enclosures, being two statutory declarations of Mr Capparelli and a further statutory declaration of the writer of the letter. A statutory declaration said to have been made by "David Miller, solicitor" on 5 December 2003 was in evidence (Exhibit T8, AB253-254). There was other evidence in the trial that the Appellant used the name David Miller. In his evidence, the Appellant admitted to using that name on other occasions, but he denied that he had used it on Exhibit T8. He claimed to have no knowledge of the creation of the statutory declarations, including Exhibit T8. The trial Judge rejected the evidence of the Appellant in this regard, a finding that was clearly open to his Honour.

At all times, the Appellant knew the nature of the allegation and the case he had to meet with respect to Counts 2, 4 and 5. Each of these counts alleges that the Appellant published the statement with intent to obtain "for himself" a valuable thing, namely the superannuation cheque. The trial Judge had to be satisfied that the Appellant intended to obtain the cheque for himself, and not for Mr Capparelli. There was abundant evidence to support this conclusion.

I accept that the published statement alleged in each of the charges did not involve the Power of Attorney. Each count identified specifically the representation as being that "Miller and Associates" (Counts 2 and 4) and "David Miller" (Count 5) were solicitors. There was abundant evidence that these statements were false and misleading, and that the Appellant well knew them to be so.

The Appellant has failed to demonstrate that Counts 2, 4 and 5 do not disclose offences known to the law. Further, no unfairness or other miscarriage of justice has been demonstrated with respect to these counts.

To the extent that Grounds 3 and 5 contends that the verdicts of guilty on Counts 2, 4 and 5 were "unsafe and unsatisfactory", I am satisfied that it was open to the trial Judge, on the whole of the evidence, to be satisfied beyond reasonable doubt of the guilt of the Appellant on these counts and I would reach the same conclusion.

I reject Grounds 2 and 3.

These grounds were addressed together in submissions and will be considered together in this judgment. The Appellant's Submissions

Mr McGovern SC submitted that the essence of the charge in Count 6 under s.300(2) Crimes Act 1900 involved the making of a false document. It was submitted initially that the allegation relates to the cheque itself, not to any endorsement on the back of the cheque or any signature. The Appellant submitted that the cheque was drawn by HIP Superannuation on a particular account in the amount of $39,633.17. It was submitted that it was not a false instrument in that it was in the form in which it was made.

Mr McGovern submitted that Count 6 also involved establishing an intention to induce Raymond Gall to accept the cheque in the amount of $39,633.17 as genuine and, because of that acceptance, to do an act to that person's prejudice. It was submitted that the required elements included Raymond Gall accepting the instrument as genuine and doing an act to his own prejudice.

The Appellant submitted, however, that the trial Judge departed from the terms of the charge and focused upon acceptance by Mr Gall that the instrument was genuine and, because of that acceptance "to do an act to the prejudice of another, namely Giovanni Capparelli": R v Miller at [8]. Reference was made to the ultimate finding on Count 6: R v Miller at [120] (at [29] above).

Mr McGovern SC submitted that there was no satisfactory evidence from Mr Gall as to who wrote on the cheque "Please pay Galloping Press".

The Appellant placed particular emphasis upon the evidence of Mr Gall, submitting that he had conceded that the words "Please pay" were not on the back of the cheque when the Appellant brought it in. Mr Gall stated that the words "Please pay" had been placed there by someone else in his organisation or by the Appellant (AB992).

In these circumstances, Mr McGovern SC submitted that the evidence did not establish beyond reasonable doubt that the endorsement was written by the Appellant and that the trial Judge should have so found. Crown Submissions

The Crown submitted that Count 6 involved a charge of using a false instrument under s.300(2), and not making a false instrument under s.300(1). It was not necessary for the Crown to prove that the Appellant had made the false instrument or endorsed it. It was only necessary for the Crown to prove that the Appellant knew that the endorsement was false.

The Crown submitted that the complaints of the Appellant concerning Count 6 were misconceived.

With respect to the prejudice issue, the Crown submitted that the submission for the Appellant was misconceived. The indictment averred that the intention of the Appellant (which is what had to be proved) was to induce Mr Gall to accept the instrument as genuine and, because of that acceptance, to do an act to the prejudice of another, namely Mr Capparelli.

The Crown submitted that the trial Judge considered the terms of Count 6 as charged and found the offence proved as his Honour was entitled to do. Decision

Count 6 is set out at [16](f).

It has not been demonstrated that there is any defect in the terms of Count 6, which pleads an offence under s.300(2) Crimes Act 1900 using the language of the section.

The offence was one of using a false instrument under s.300(2). The Appellant's submissions by reference to the making of a false instrument under s.300(1) do not address the relevant charge.

In s.300(2), "use" involves the actual deployment of the instrument said to be false: Sultan v R [2008] NSWCCA 175, 191 A Crim R 8 at 14 [36]. Here, the Crown alleged (and proved) that the Appellant deployed the cheque which bore a false endorsement. The findings of the trial Judge set out at [27] above make this clear. His Honour found expressly that the signature of Mr Capparelli on the endorsement was forged and that the Appellant knew this to be so.

It was the Crown case, based on the evidence of Mr Capparelli, Mr Gall and the cheque endorsement (Exhibit T19) that the Appellant presented the cheque to Mr Gall with the endorsement on the reverse, being the purported signature of Mr Capparelli, which he knew to be false. Mr Gall gave evidence that the endorsement, being the purported signature, was present on the cheque at the time the Appellant gave it to him (AB961-963). He was not sure when the words "Please pay Galloping Press" were placed on it (AB962).

It was not the Crown case that only the cheque was false. It was the Crown case that the endorsement, being the purported signature of Mr Capparelli, was the false instrument alleged in Count 6. The trial was conducted on this basis and the Appellant understood what was alleged against him in Count 6.

In my view, Ground 5 sets up a false premise in that it asserts that the relevant cheque was endorsed "Please pay Galloping Press" by a person or persons unknown. It was open to the trial Judge to find beyond reasonable doubt that Count 6 was established upon the basis that the Appellant knew that the endorsement was false. The trial Judge so found.

To the extent that Ground 5 may be taken as a contention that the verdict on Count 6 was not supported by the evidence, I record my satisfaction that it was open to the trial Judge, on the whole of the evidence, to be satisfied beyond reasonable doubt of the guilt of the Appellant on this count, and state that I would reach the same conclusion.

In my view, both Grounds 4 and 5 ought be rejected.

The Appellant asserts that fresh or new evidence is available which bears upon his convictions on Counts 2, 3, 4, 5 and 6. An affidavit of the Appellant sworn 3 August 2010 was relied upon in support of this ground. The Crown relied upon affidavits of Virginia Maria Boulous sworn 3 August 2012 and 28 February 2013.

It was agreed between counsel that there was no need to cross-examine the deponents or for oral evidence to be given with respect to this ground (T27-29, 1 March 2013). The Court was invited to determine the ground by reference to affidavits and other written materials. The Appellant's Submissions

This ground focused upon certain documents which were said to be copies of receipts from Mr Capparelli to the Appellant and copies of documents relating to a Mr Williams, solicitor.

Mr McGovern SC submitted that these documents were provided by the Crown after the 2009 trial, and that they bore upon issues to be determined by the trial Judge at that trial. It was submitted that the documents in question ought to have been produced at an earlier time.

It was submitted that the absence of these documents at the time of the trial involved a miscarriage of justice, in that there was a significant possibility that the trial Judge, acting reasonably, would have arrived at a different result had they been available for use at the trial. Crown Submissions

The Crown submitted that the documents in question did not constitute fresh or new evidence. The Appellant's own case was that he knew of the existence of the material prior to the trial and sought a permanent stay on that basis, which was refused. Furthermore, in what the Crown described as the rather unusual circumstances of the case, the authenticity of the documents relied upon as new evidence was open to question.

The Crown pointed to the affidavit of Ms Boulous, which indicated that the documents in question under this ground of appeal were in fact documents which were already available to the Appellant. It was submitted that the Court would find that the documents had not come into the possession of the Appellant as the result of the delivery of documents by Ms Boulous.

The Crown submitted that the Appellant had failed to demonstrate that the evidence was fresh or new, let alone that a miscarriage of justice had resulted. Decision

The principles to be applied with respect to a fresh or new evidence ground were summarised by Kirby J (Mason P and Levine J agreeing) in R v Abou-Chabake [2004] NSWCCA 356; 149 A Crim R 417 at [63]: "The authorities in respect of fresh evidence have recently been collected and analysed by Giles JA in R v Bikic [2002] NSWCCA 227, and Heydon JA in R v M [2002] NSWCCA 66 at paras 61-64; see also R v Sleiman [2003] NSWCCA 231 paras 101-105. The test was stated by Barwick CJ in Ratten v The Queen (1974) 131 CLR 510 at 518-520 (McTiernan, Stephen and Jacobs JJ agreeing). It was reaffirmed in Lawless v The Queen (1979) 142 CLR 659 by Mason J at 674-5 (Barwick CJ and Aiken J agreeing). The principles may be summarised as follows: * First, a distinction is made between 'new evidence' and 'fresh evidence'. Fresh evidence is evidence not available to the accused at the time of the trial, actually or constructively. Evidence is constructively available if it could have been discovered, or available at the trial by the exercise of due diligence. * Second, great latitude must be extended to an accused in determining what evidence, by reasonable diligence, could have been available at his trial (Ratten v The Queen (supra) per Barwick CJ at 512). * Third, the Court is ultimately concerned with whether there has been a miscarriage of justice. The rationale for setting aside a conviction on the basis of new evidence or fresh evidence is that the absence of that evidence from the trial was, in effect, a miscarriage of justice. That evidence must be examined in the context of the evidence given at the trial (Mickelberg v The Queen (1989) 167 CLR 259, per Toohey and Gaudron JJ at 301). * Fourth, the issue of whether there has been a miscarriage is to be approached on a number of levels, depending upon the order sought (whether a verdict of acquittal or a new trial), and the capacity of the new or fresh evidence to sustain the order sought. * Fifth, where a verdict of acquittal is sought and the new evidence is of such cogency that innocence is shown to the Court's satisfaction, or the Court entertains a reasonable doubt as to guilt, the guilty verdict will be quashed and the appellant discharged. In such circumstances, it does not matter whether the evidence is fresh or simply new (Ratten v The Queen (supra) Barwick CJ at 518/519; cf Gibbs CJ in Gallagher v The Queen (1986) 160 CLR 392 at 398/399). * Sixth, where the evidence does not have that quality, or where a new trial is sought, a number of issues arise. The verdict will be quashed and a new trial ordered only where the following questions are answered affirmatively: * Is the evidence fresh? * If it is, is it 'credible' or at least capable of belief (Gallagher v The Queen (supra) per Gibbs CJ at 395), or 'plausible' (Mickelberg v The Queen (supra) per Toohey and Gaudron JJ at 301)? * If it is, would that evidence, in the context of the evidence given at the trial, have been likely to have caused the jury to have entertained a reasonable doubt about the guilt of the accused (Gallagher v The Queen (supra) per Brennan J at 410) or, if there is a practical difference, is there a significant possibility that the jury, acting reasonably, would have acquitted the accused (Gallagher v The Queen (supra) per Mason and Deane JJ at 402)? See Mickelberg v The Queen (supra) per Toohey & Gaudron JJ at 301-302. * Seventh, the concept of a miscarriage of justice is not an abstract investigation of truth (cf an Inquiry under s474D Crimes Act 1900). It is an investigation in the context of the adversarial nature of a criminal trial. Where deliberate tactical decisions are made on the part of the accused as to the evidence that should or should not be called, and the issues that should or should not be pursued, there is nothing unfair, and there will be no miscarriage, in holding an accused to such decisions, even though it is conceivable that other decisions or something else may have worked rather better (Ratten v The Queen (supra) at 517)."

The Appellant bears the onus of demonstrating factual matters in support of this ground of appeal.

In his affidavit, the Appellant asserts that certain documents were included in a cardboard box containing about 4,000 pages delivered to the Metropolitan Reception and Remand Centre on 22 August 2009, the day following his conviction by the trial Judge. The Appellant asserts that, in that box, were copies of receipts dated 21 June 2003 and 21 July 2003 from Mr Capparelli for receipt of monies from the sale of shares and a copy of a letter from Mr Tom Williams dated 30 October 2003 addressed to Mr Capparelli (affidavit of Appellant sworn 3 August 2010, Annexures J and K).

The trial Judge had refused a permanent stay application made by the Appellant, during which the Appellant had maintained that documents (including Annexures J and K) had been furnished to Detective Senior Constable Hetherington in January 2005. Detective Senior Constable Hetherington denied that these documents had been taken from the Appellant in January 2005. A list of documents obtained by the police officer from the Appellant on that occasion was tendered on the stay application (Exhibit 7). That list was signed by the Appellant and did not include the documents in question, specifically the documents which are Exhibits J and K to the Appellant's affidavit of 3 August 2010.

In the course of refusing the stay application, the trial Judge noted that Mr Williams, solicitor, had been murdered in April 2004. The trial Judge held that the Appellant had not discharged the onus to obtain a permanent stay of the criminal proceedings, even on the assumption that the documents existed. In the course of refusing the stay application, the trial Judge described the Appellant as "an intelligent, quick-thinking and articulate individual".

The foundation for Ground 6 is the claim that these documents, which had been the subject of the stay application determined in July 2009, suddenly came to light in a large box of documents provided by the Crown to the Appellant in September 2009.

Ms Boulous was the solicitor in the Office of the Solicitor of Public Prosecutions responsible for the production of these documents in August 2009.

The effect of the affidavits of Ms Boulous is that the documents sent to the Appellant was a complete copy of documents received from the Legal Aid Commission by the Director of Public Prosecutions, in the course of preparation of the Appellant's appeal from his conviction at the 2007 trial. Ms Boulous states that she searched the documents from the Legal Aid Commission and that they did not contain the documents upon which the Appellant now seeks to rely on this application.

Accordingly, there is no evidence apart from the Appellant's assertion, that the documents in question were produced in August 2009 in the manner asserted by the Plaintiff. In fact, the affidavit of Ms Boulous is contrary to this assertion.

Further, the trial Judge dealt with the issues raised under this ground on the hearing of the permanent stay application determined prior to the trial. His Honour held that the Appellant had not discharged the onus of demonstrating that the alleged documents, if they existed, were such as to mean that the absence of them from the Court's consideration would mean that a fair trial would not be possible.

There are some curious features surrounding this ground. It is necessary to keep in mind the evidence at the trial evidencing a capacity on the part of the Appellant to use documents with a false and misleading letterhead when it suited him to do so. I have in mind, in particular, the use of a letterhead in the name of "Miller and Associates" (Counts 2 and 4) which he caused to be created.

It is necessary, as well, to keep in mind the absence of any reference to these documents on the list signed by the Appellant in January 2005, on the occasion when Detective Senior Constable Hetherington took a number of documents from him.

The evidence of Ms Boulous is that the box of documents furnished by her to the Appellant in August 2009 for the purpose of his appeal from the 2007 trial did not contain Annexures J and K to the Appellant's affidavit sworn 3 August 2010. To the extent that Ground 6 depends upon a finding in the Appellant's favour that the box of documents delivered by Ms Boulous in August 2009 did contain those documents, accompanied by a claim that the Appellant did not already have them (if they then existed), then the Appellant has failed to demonstrate that he received the documents which are Annexures J and K in the box delivered from Ms Boulous in August 2009.

It is not necessary to explore further the relevant principles with respect to fresh and new evidence, as summarised in R v Abou-Chabake. The Appellant has failed to demonstrate that the documents which are Annexures J and K were in existence at the time of the 2009 trial, or, if they were, that they were not available to him at that time.

To the extent that a critical aspect of this ground of appeal requires a finding in the Appellant's favour that these documents only came to his attention following the 2009 trial when the box of documents was delivered to him in custody, he had failed to establish that these documents were in that box.

The Appellant has not demonstrated that the suggested fresh or new evidence was credible, nor that it satisfied the test for admission of "fresh" or "new" evidence.

A result of these findings is that Ground 6 should be rejected.

The Appellant sought to rely upon nine grounds of appeal in support of his application for leave to appeal against the sentences imposed by Knox DCJ following the 2009 trial. Those grounds are as follows: (a) Ground 7 - The sentencing Judge erred by admitting a victim impact statement into evidence over objection, and thereafter taking that victim impact statement into account as a relevant consideration on sentence, notwithstanding that the offences did not fall within the description of offences contained in s.27(2) Crimes (Sentencing Procedure) Act 1999. (b) Ground 8 - The sentencing Judge erred in law by equating the Appellant's fraud as punishable on the same strict basis as a solicitor would be punished who had defrauded his clients, notwithstanding that the Appellant was neither a solicitor nor a person in a position of trust in respect of any of the offences. (c) Ground 9 - The sentencing Judge erred in failing to take into account the fact that the offending conduct of the Appellant could have been dealt with in the Local Court had the prosecution not elected otherwise, and his Honour ought to have considered this to be a relevant consideration in the exercise of discretion. (d) Ground 10 - The sentencing Judge erred on sentence by failing to give weight, or any sufficient weight, to substantial delay. (e) Ground 11 - The sentencing Judge should have taken into account as a mitigating factor, and as necessitating a reduction in the Appellant's sentence, the foreseeability of the Appellant serving his sentence in conditions significantly harsher than those applicable to the general prison population, or alternatively, this Court should take into account the fact that the Appellant is serving his sentence in such conditions such as to necessitate a reduction in the Appellant's sentence. (f) Ground 12 - The sentence imposed by the sentencing Judge was manifestly excessive in regard to an assessment of the objective seriousness of the Appellant's conduct, given the amount involved and the period of offending. (g) Ground 13 - The sentencing Judge erred in failing to reduce the Appellant's sentence on the ground of assistance to authorities, by not correctly applying s.23 Crimes (Sentencing Procedure) Act 1999 and by deciding that any information supplied was not of sufficient utility to attract any amelioration or discount by way of mitigation. (h) Ground 14 - The sentencing Judge erred in taking into account on sentence irrelevant considerations, and made findings on the basis of no evidence, namely that the Appellant's complaint about the non-production of documents at trial was not genuine. His Honour also took into account an irrelevant consideration, that the Appellant had professed and maintained his innocence throughout the trial and on sentence. (i) Ground 15 - In sentencing the Appellant, his Honour failed to comply with the requirements of Division 5 Pt 4 Crimes (Sentencing Procedure) Act 1999.

These grounds will be addressed in turn.

Over the objection of the Appellant, the sentencing Judge admitted into evidence on sentence, a victim impact statement of Mr Capparelli dated 29 October 2009. In that statement, Mr Capparelli described the emotional and financial impact upon him and his family as a result of the offences committed by the Appellant. Submissions

Mr McGovern SC submits that his Honour erred in admitting the report. He submitted that the victim impact statement was not admissible in sentencing proceedings of this type given the limits contained in s.27(2) Crimes (Sentencing Procedure) Act 1999. To the extent that the sentencing Judge relied upon the decision of this Court in Porter v R [2008] NSWCCA 145, the Appellant sought to distinguish that case.

The Crown submitted that it was open to the sentencing Judge to receive the victim impact statement in this case, relying upon Porter v R. The Crown also submitted that, in any event, the sentencing Judge noted that the statement did not add anything to the view that he had already formed from the evidence given by Mr Capparelli at the trial. The sentencing Judge stated that he would not be relying upon the contents of the statement any further. In these circumstances, the Crown submitted that no error had been demonstrated. Decision

As stated in Porter v R at [52]-[53], to succeed on this ground, the Appellant needs to demonstrate that the evidence concerning the emotional and financial consequences of the offences upon Mr Capparelli and his family ought not to have been admitted at all on sentence. The fact that the statement was entitled "Victim Impact Statement" does not mean that the content of the statement itself was inadmissible.

The Court observed in Porter v R at [54]-[55], that it is well established at common law that loss or damage suffered by a victim is a factor to be taken into account in the sentencing process, citing a number of authorities including Siganto v The Queen [1998] HCA 74; 194 CLR 565 at 664-666. The purposes of sentencing include recognition of the harm done to the victim of crime and the community: s.3A(g) Crimes (Sentencing Procedure) Act 1999. In Porter v R, the evidence concerned the emotional and financial stress suffered by the proprietors of several small businesses as a result of an arson offence which destroyed their shop premises.

Sections 26-30A Crimes (Sentencing Procedure) Act 1999 do not codify and confine the circumstances in which evidence may be received by a sentencing court of the impact of crimes upon a victim. It was open to the sentencing Judge in this case to receive material which bore upon the question of the emotional and financial impact of the Appellant's crimes upon Mr Capparelli.

In any event, the sentencing Judge observed that the contents of the statement did not add a great deal more to his own observations of Mr Capparelli, who had given evidence at the trial. Clearly, it was open to the sentencing Judge to have regard to the evidence of Mr Capparelli at trial in his assessment of sentence of the Appellant. That evidence allowed his Honour to take into account the substantial (and understandable) emotional and financial impact of these offences upon Mr Capparelli and his family.

I would reject Ground 7. Submissions

Mr McGovern SC submitted that, although the sentencing Judge correctly identified the fraud as involving the Appellant representing himself as a solicitor, he erred in having regard to the "strict sanctions against solicitors who defraud their clients" and in observing that that approach "should apply at least no less to those who fraudulently represent themselves to be solicitors who carry out the same activities" (AB27).

It was submitted that his Honour approached sentence upon the basis that a harsher penalty was warranted for the Appellant than would otherwise have been warranted for a person in his position: Nikolaidis v R [2008] NSWCCA 323; 191 A Crim R 556 at 574-575 [94]-[96]. The Appellant submitted that it was wrong for the sentencing Judge to impose a harsher sentence on the Appellant by treating him as if he were a solicitor.

The Crown submitted that it was necessary to view the totality of the sentencing Judge's remarks on this topic. When so viewed, it was submitted that his Honour was not approaching the question of sentence as if the Appellant was a solicitor, with an accompanying breach of trust. Decision

In addressing this ground, it is necessary to fairly read the entirety of what the sentencing Judge said on this topic. His Honour said (AB25): "In my view the offender held himself out to be a solicitor and Mr Capparelli relied on him as being a person who he could trust in that capacity. However I do not think there is, as the term is defined and as counsel both agree, a breach of trust in the circumstances of this particular matter."

His Honour found that the Appellant's scheme was "a complex and relatively sophisticated fraud", with the level of planning and premeditation being demonstrated by a number of factors enumerated by the sentencing Judge (AB26).

His Honour returned to the topic (AB27-28): "The criminality involved was serious, planned and premeditated and involved a range of institutions and individuals; all of who relied on the offender or the documents provided. He had armed himself with documentation and created an impression carefully designed to ensure that he was regarded as a solicitor and a professional person who could be trusted. While it may be technically correct to say that as he was not a solicitor, he was not a person who was in a position of trust, nevertheless that is precisely the impression he intended to give and the ostensible relationship on which his fraudulent activities were based. The legislature has provided strict sanctions against solicitors who defraud their clients. It does seem to me that approach should apply at least no less to those who fraudulently represent themselves to be solicitors and carry out the same activities. There are difference in principle and policy as Mr Pickin of counsel has submitted. Namely, that people who are solicitors have effectively a licence by virtue of their admission and an expectation of trust that did not apply to the offender. Nevertheless here this was precisely what the offender was trying to do."

It is the second paragraph in the last-mentioned quotation upon which the Appellant relies in support of this ground.

Finally, the sentencing Judge stated (AB29-30): "I say that against the background of the finding that I made during the trial and which I subsequently reiterate; that the offender is a highly intelligent individual. On his own evidence corroborated by the presentence report, he is someone who has had the benefit of a substantial part of a legal education and some legal experience. He used that experience to lend colour, if not veracity, to the impression he wanted to create on Mr Capparelli. He set up an elaborate subterfuge involving documents representing the existence of a separate legal entity and making representations to agencies such as HIP that were entitled to rely on the representations and documents advanced."

I am not satisfied that the sentencing Judge approached the present sentencing exercise as if the Appellant was a solicitor, with the full panoply of factors to be taken into account on sentence in that scenario having application to the Appellant.

Rather, his Honour had regard to the serious aspects of the Appellant's offences whereby he deceived Mr Capparelli into believing that he was a solicitor, and thereby entrusted his affairs to him. As his Honour observed, both specific and general deterrence were significant factors on sentence for conduct of this type. This reflected the importance of deterring others in the community from falsely representing themselves to be solicitors, thereby deceiving members of the public for criminal purposes, including (as in this case) a vulnerable and elderly citizen.

The present case is different from Suleman v R [2009] NSWCCA 70, where it was said (at [22]-[27]) that the aggravating factor of breach of trust is not made out simply because the victim trusted the offender for some reason, or because of the offender's standing in the community or his appearance of being a successful businessman. The position of trust recognised by the common law does not arise simply from the subjective state of mind of one of the members of the relationship.

However, that is not the present case. Here, Mr Capparelli trusted the Appellant because he believed, as a result of the Appellant's false statements, that he was a solicitor who would act on behalf of Mr Capparelli. The approach of the sentencing Judge in the present case does not involve any breach of the approach taken by this Court in Suleman v R.

The approach adopted by the sentencing Judge, as his Honour made clear, did not involve equating the Appellant's conduct with a breach of trust by a member of the legal profession. Rather, the aggravating aspects of the offences, and the emphasis upon specific and general deterrence, flowed from the grave consequences where a criminal deceives a member of the public into entrusting his or her affairs to that person under the guise of being a solicitor.

I reject Ground 8. Submissions

Mr McGovern SC submitted that the sentencing Judge had erred in not taking into account on sentence the fact that the charges against the Appellant could have been disposed of summarily in the Local Court. It was submitted that his Honour should have taken this factor into account, together with the jurisdictional limit of sentence in the Local Court if the matters had been disposed of summarily. Reliance was sought to be based upon sentencing statistics with respect to offences under the relevant sections dealt with summarily in the Local Court.

The Crown submitted that the sentencing Judge did take into account the submission concerning possible summary disposal, but rejected it in the circumstances of this case upon the basis that the matters were properly brought in the District Court. Decision

The sentencing Judge concluded that these were proper matters to be brought in the District Court by way of an election by the Director of Public Prosecutions "for good reason" (AB38).

In the present case, the Director of Public Prosecutions elected for these matters to be tried on indictment. A decision of that type lies within the exercise of prosecutorial discretion.

This Court has held that it would require a very clear case of inappropriate prosecution of an offence on indictment, before the availability of summary disposal could provide an argument in mitigation resulting from what was said to be the lost opportunity for summary disposal of an offence: R v Gent [2005] NSWCCA 370; 162 A Crim R 29 at 47 [86]; Khanwaiz v R [2012] NSWCCA 168 at [132]-[134]; Zreika v R [2012] NSWCCA 44; 223 A Crim R 460 at 480-482 [100]-[102].

Unless this Court is able to clearly determine that the offence in question ought to have remained in the Local Court, then the argument is theoretical at best. The bare theoretical possibility of a matter being dealt with in the Local Court does not suffice: Zreika v R at 483 [109].

The present offences were serious examples of breaches of ss.178BA, 178BB and 300(2) Crimes Act 1900. The Appellant has fallen far short of demonstrating that the prosecution of these offences should appropriately have taken place in the Local Court, so as to give rise to a viable argument that the theoretical possibility of summary disposal was a factor which ought to have been taken into account in his favour on sentence.

I reject Ground 9. Submissions

The Appellant submitted that the sentencing Judge erred in failing to give weight, or appropriate weight, to the delay between his arrest in January 2005 and his conviction by the trial Judge in August 2009.

The Crown noted that his Honour had dealt with the issue of delay at some length in his remarks on sentence, and that no error had been demonstrated in his Honour's approach on this issue. Decision

The sentencing Judge considered the submissions made on sentence with respect to delay (AB33-37). It is not necessary to recite the chronology of events set out by his Honour. There is no doubt that his Honour considered them on sentence.

His Honour had regard to the relevant principles in R v Todd [1982] 2 NSWLR 517 at 519 and Mill v The Queen [1988] HCA 70; 166 CLR 59. His Honour had regard to the reasons for delay, noting that the delays did not seem to have been caused by any undue police or prosecutorial delay, with much of the delay being attributable to the Appellant. His Honour concluded that the delay was not such that it should be taken into account to mitigate penalty.

This Court is a court of error. The sentencing Judge considered the submissions made on sentence with respect to delay and reached a conclusion which was open to him. No error has been demonstrated in this respect.

I would reject Ground 10. Submissions

Mr McGovern SC submitted that the sentencing Judge erred in his approach to the Appellant's assistance to authorities, and what was said to be the consequential increased hardship of his custodial conditions as a result of that assistance.

The Crown submitted that no error had been demonstrated as asserted in this ground. No relevant evidence had been placed before the sentencing court, nor did there appear to have been any actual submission made to his Honour that he should reduce sentence on this basis. Rather, it was submitted that his Honour should take this aspect into account in finding special circumstances. Decision

His Honour's remarks on sentence of 11 December 2009 indicate that the issue of assistance had been raised with respect to sentence. However, a perusal of the transcript of the sentencing proceedings, and his Honour's remarks on sentence, indicates that no satisfactory evidentiary basis had been demonstrated that assistance of any real utility had been provided, let alone what the impact of that may be upon the Appellant's custodial conditions. These are matters for evidence and not assumption by a sentencing court.

This ground may be disposed of briefly by stating that no error has been demonstrated on the part of the sentencing Judge with respect to this issue.

I would reject Ground 11. Submissions

The Appellant contends that he had an entitlement to a reduction in sentence for the purpose of s.23 Crimes (Sentencing Procedure) Act 1999 because of his claim of assistance to authorities. The Appellant contends further that the sentencing Judge erred in deciding that the information supplied by him was not of sufficient utility to attract any assistance to the Appellant on sentence.

The Appellant contended that he was entitled to be rewarded for what was said to be his genuine co-operation with the authorities: LMN v R [2012] NSWCCA 52 at [27].

The Crown submitted that the sentencing Judge's finding as to the lack of utility of the Appellant's assistance was open and in accordance with evidence given by a senior police officer. Decision

The sentencing Judge provided an opportunity for assessment of the Appellant's claimed assistance to authorities by adjourning the sentencing proceedings from 27 November 2009 to 11 December 2009. On that occasion, evidence was given by a senior police officer, the effect of which was that the Appellant's assistance was of no practical value.

The sentencing Judge had regard to the material before the Court with respect to the claim of assistance to authorities as a factor bearing on sentence. As was stated in LMN v R at [28], the value of information provided remains an important consideration and can inform the Court's assessment of the degree of genuine co-operation being offered.

It was open to the sentencing Judge to conclude that no discount ought be extended to the Appellant under s.23 Crimes (Sentencing Procedure) Act 1999. The Appellant has not demonstrated error in this respect.

I would reject Ground 13. Submissions

This ground is based upon the contention that crucial documents of an exculpatory nature had not been produced to the Court, yet the sentencing Judge determined that the Appellant's complaints about non-production of documents had not been genuine. It was submitted that, in these circumstances, it was erroneous for the sentencing Judge to have drawn a conclusion adverse to the Appellant on this question when subsequent events demonstrated that the Appellant's claim was correct.

It was submitted further that his Honour should not have taken into account in a manner unfavourable to the Appellant the fact that he had maintained his innocence during the trial: Siganto v The Queen.

The Crown submitted that the factual premise for the submission concerning non-production of documents was wrong. Further, evidence had been given during the trial on this issue and the sentencing Judge had made adverse findings concerning the credibility of the Appellant. This was said to be relevant to sentence, particularly in relation to the issue of delay and how delay should impact on the sentence imposed.

The Crown submitted there was no basis for the complaint that the sentencing Judge had taken into account, adversely to the Appellant, the fact that he had maintained his innocence. Decision

In determining Ground 6 (the fresh or new evidence ground), I have concluded that the Appellant did not establish that the documentary material was credible, nor that it was fresh or new.

The factual foundation for the first submission advanced by the Appellant under this ground is not established.

A fair reading of the remarks on sentence does not demonstrate that the sentencing Judge has breached the principle in Siganto v The Queen. The fact that the sentencing Judge referred to the Appellant maintaining his innocence throughout does not demonstrate that that feature was taken into account adversely to him on sentence.

Clearly, the Appellant was not entitled to any of the benefits which flow by way of discount for a plea of guilty and any additional assistance on sentence by way of contrition and remorse in the circumstances of this case. The statements of the sentencing Judge go no further than this.

I would reject Ground 13. Submissions

The Appellant complains that the sentencing Judge failed to set a non-parole period on Count 3 and thus failed to comply with provisions of the Crimes (Sentencing Procedure) Act 1999.

It was further submitted that, although the sentencing Judge appears to have intended to make an adjustment for special circumstances, this did not happen when sentence was imposed.

The Crown acknowledged that the sentencing Judge did not use the words "non-parole period" in sentencing for Count 3, but that his Honour's intention was clear and that that was what was meant. Further, the Crown submitted that a finding of special circumstances had been made and was taken into account in passing sentence. Decision

In passing sentence on Count 3, his Honour sentenced the Appellant to "a term of three years' imprisonment commencing on 11 June 2010 and expiring on 10 June 2013 with an additional term of 18 months expiring on 10 December 2014" (AB50). It is quite clear that this was a slip on the part of the sentencing Judge. His Honour intended to impose a non-parole period of three years on Count 3, as the complete form of order made clear. Further, neither the Crown Prosecutor or defence counsel, who had appeared throughout the proceedings, raised any issue with the sentencing Judge concerning this order.

His Honour made a finding of special circumstances by reference to the Appellant's age and background and partial accumulation (AB41-42).

The sentences ultimately passed involved fixed terms of imprisonment on Counts 2, 4, 5 and 6, as to which no complaint is made on behalf of the Appellant. On the remaining count, Count 3, a total sentence of imprisonment for four years and six months with a non-parole period of three years was passed. Practical effect was given to the findings of special circumstances.

I reject Ground 15.

It is appropriate to consider this ground last. Submissions

Mr McGovern SC contended that a total effective sentence of imprisonment for four years and six months was manifestly excessive in the circumstances of this case. No complaint was made concerning the entirely concurrent sentences upon Counts 2, 4, 5 and 6. The focus of the Appellant's submissions was Count 3, which attracted a head sentence of imprisonment for four years and six months, with a non-parole period of three years.

The Crown noted the indication of the sentencing Judge on 27 November 2009, which may have suggested that his Honour intended to impose concurrent sentences on Counts 2, 3, 4 and 5, with a longer sentence on Count 6, which involved different criminality and a greater maximum penalty. When the sentencing proceedings resumed on 11 December 2009, the matter proceeded ultimately by way of imposition of concurrent sentences on Counts 2, 4, 5 and 6, with an additional and lengthier sentence on Count 3.

The Crown submitted that the sentences were not manifestly excessive given the Appellant's offences. Decision

An examination of the record of the sentencing proceedings does suggest an apparent intention on the part of the sentencing Judge on 27 November 2009 to impose the longer sentence on Count 6. The sentencing proceedings were adjourned to 11 December 2009 to allow an assessment of the value of assistance said to have been provided to the authorities by the Appellant, an assessment which did not materially assist the Appellant on sentence.

On 11 December 2009, his Honour imposed the sentences outlined at [6]. It is noteworthy that both the Crown Prosecutor and defence counsel who had appeared at trial were present on this occasion, and that no point was raised by either counsel with respect to the course of action taken by the sentencing Judge in this respect. Neither counsel suggested to his Honour that the course adopted was inconsistent with that suggested on 27 November 2009.

Ground 12, as drawn, invites consideration of all sentences imposed upon the Appellant. As argued, the ground has focused upon the sentence fixed on Count 3. I accept that a sentence of imprisonment of four years and six months with respect to Count 3, which carried a maximum of five years' imprisonment, was a very substantial sentence. Viewed in isolation, the conclusion may be open that the sentence for that offence is manifestly excessive.

However, Ground 12 is directed to totality (as the Appellant's written submissions indicate) so that regard should be had to the Appellant's total criminality for all offences in considering this ground.

I am not persuaded that a total effective head sentence of four years and six months is manifestly excessive for all the offences committed by the Appellant. To the extent that Ground 12 so contends, I reject the claim of manifest excess.

The narrow argument advanced is that the sentence on Count 3 was really intended for Count 6, which carried a higher maximum penalty.

Unless the Appellant can make good a submission that any restructured sentences would be shorter than those imposed, there is no practical utility in resentencing: Carlton v R [2014] NSWCCA 14 at [90]. I am not satisfied that any lesser sentence (or sentences) would be appropriate in this case. Accordingly, the Appellant has not made good this ground.

I reject Ground 12.

The Appellant has failed to make good any of his grounds of appeal against conviction at the 2009 trial.

Further, the Appellant has failed to establish any of his grounds of appeal with respect to sentence following the 2009 trial. Even if error had been demonstrated with respect to sentence, I would not have been persuaded in any event that lesser sentences were warranted for the purpose of s.6(3) Criminal Appeal Act 1912.

I propose the following orders with respect to the appeal from the 2009 trial: (a) appeal against conviction dismissed; (b) leave to appeal against sentence granted, but appeal dismissed.

Brief reference was made at [2]-[3] above to the charges of which the Appellant was convicted following a trial in 2007 before Armitage ADCJ and a jury, and the sentences imposed following those verdicts.

The Appellant stood trial with John Duncan Copeland upon the following charges: (a) Count 1 - Between 1 July 2003 and 4 February 2004, at Sydney in the State of New South Wales, by deception, namely by presenting material for the Australia and New Zealand Banking Group Limited representing that they were acting on behalf of a person named Ivan Pagett, who desired a sum of money against the security of a property at 105 Links Avenue, Concord, and that the said Ivan Pagett was capable of meeting the repayments of that loan, dishonestly obtained for himself and each other a financial advantage, namely two bank cheques totalling the sum of $769,639.58 (s.178BA Crimes Act 1900, maximum penalty imprisonment for five years). (b) Count 2 - Between 12 September 2003 and 4 February 2004, at Sydney in the State of New South Wales, did use a false instrument, namely a document purporting to be a photocopy of pages from Australian Passport [XXX], of Heavy Vehicle Drivers Licence [XXX], and of images of Ivan Pagett, a document that the Appellant knew to be false, with the intention of inducing another person, namely the proper officer of the Australia and New Zealand Banking Group Limited, to accept the instrument as genuine, and because of that acceptance, to do an act, namely to place a sum of $800,000.00 to the credit of the said Ivan Pagett, to the prejudice of the Australia and New Zealand Banking Group Limited (s.300(2) the Crimes Act 1900, maximum penalty imprisonment for 10 years). (c) Count 3 - Between 12 September 2003 and 4 February 2004, at Sydney in the State of New South Wales, did use a false instrument, namely, a document purporting to bear the details of Personal Cheque account [XXX], for the month of July 2003, in respect of Ivan Pagett of 105 Links Avenue, Concord, a document that the Appellant knew to be false, with the intention of inducing another person, namely the proper officer of the Australia and New Zealand Banking Group Limited, to accept the instrument as genuine, and because of that acceptance, to do an act, namely to place the sum of $800,000.00 to the credit of the said Ivan Pagett, to the prejudice of the Australia and New Zealand Banking Group Limited (s.300(2) Crimes Act 1900, maximum penalty imprisonment for 10 years). (d) Count 4 - Between 12 September 2003 and 4 February 2004, at Sydney in the State of New South Wales, did use a false instrument, namely a document purporting to be the PAYG Payment Summary - Individual Non-Business, in respect of Ivan Pagett (payee [XXX]), for the period 01/07/2002 to 30 June 2003, purported to have been signed by Walter Cosgrove on 9 July 2003, a document that the Appellant knew to be false with the intention of inducing another person, namely the proper officer of the Australia and New Zealand Banking Group Limited, to accept the instrument as genuine, and because of that acceptance, to do an act, namely to place a sum of $800,000.00 to the credit of Ivan Pagett, to the prejudice of the Australia and New Zealand Banking Group Limited (s.300(2) Crimes Act 1900, maximum penalty imprisonment for 10 years). (e) Count 5 - Between 12 September 2003 and 4 February 2004, at Sydney in the State of New South Wales, did use a false instrument, namely a letter of employment in respect of Ivan K Pagett, bearing the date 12 December 2003, purporting to have been signed by Walter Cosgrove, Drain Savers (Homebush), a document that the Appellant knew to be false, with the intention of inducing another person, namely the proper officer of the Australia and New Zealand Banking Group Limited, to accept the instrument as genuine, and because of that acceptance, to do an act, namely to place a sum of $800,000.00 to the credit of the said Ivan Pagett, to the prejudice of the Australia and New Zealand Banking Group Limited (s.300(2) Crimes Act 1900, maximum penalty imprisonment for 10 years).

On 28 June 2007, the jury convicted the Appellant on all counts and acquitted Mr Copeland on all counts.

It was the Crown case that the Appellant was the author of a carefully planned fraud, to present false documentation, either totally fabricated, or modified to make false representations of its authenticity, to dishonestly deprive the ANZ Bank of about $770,000.00 and interest on that money.

Of this sum, the Appellant received the proceeds of a $759,739.58 cheque, by way of $650,000.00 in cash and an 80% share in the ownership of a racehorse. The fraud involved utilising as security the home of Ivan Pagett, then aged about 74 years and suffering physical impairment.

The scheme continued from its inception in about July 2003 to its fruition in obtaining $650,000.00 in cash on 4 February 2004.

The Appellant denied the charges and denied that he received the sum of $650,000.00.

In his remarks on sentence of 14 September 2007, Armitage ADCJ stated (AB189-190): "The crown case as presented at the trial was that the two accused between 1 July 2003 and 4 February 2004 acted together in a joint criminal enterprise of practising a deception of the Australia and New Zealand Bank both by way of verbal and documentary representations that they knew to be false in order to obtain a sum of $769,639.58 to be shared between them. There was no dispute at the trial that deceptive representations were made and false documents were presented by Mr Copeland and a person who pretended to be John Harris, solicitor and that the deception resulted in a loss to the bank and a financial advantage to Mr Copeland and to the person who pretended to be John Harris, solicitor. The main issues at the trial were, was Mr Damon Miller the person who pretended to be John Harris and was Mr Copeland aware that the person who called himself John Harris was an impostor pretending to be a solicitor acting for a genuine client? It is apparent from the jury's verdict that it was satisfied beyond reasonable doubt that Mr Miller was the person who pretended to be John Harris but was not satisfied that Mr Copeland was aware that the person pretending to be John Harris was an impostor."

A more detailed recital of the evidence appears later in the judgment, in the context of determining Ground 1, a claim that the verdicts were unreasonable (at [353]ff).

The Appellant's grounds of appeal against conviction with respect to the 2007 trial were contained in a document filed on 24 November 2008 (AB1-8). Written submissions were filed on 25 February 2009 on behalf of the Appellant in support of these grounds. The Crown filed written submissions on 27 August 2009 responding to those submissions.

Reference was made earlier in this judgment (at [7]-[13]) to the procedural history of the 2007 and 2009 appeals. At the hearing of the appeals on 1 March 2013, oral submissions were made by the Appellant in support of his appeal against conviction and sentence at the 2007 trial, to be taken in conjunction with the written submissions filed in 2009.

The grounds of appeal filed on 24 November 2008 concerning the 2007 trial are lengthy and, to some extent, repetitive. The grounds of appeal against conviction may be summarised as follows: (a) Ground 1 - The convictions were unreasonable having regard to the evidence. (b) Ground 2 - The Crown circumstantial case comprised fabricated evidence, suborned witness testimony and a manifestly deficient investigation by the police informant, Detective Senior Constable Raymond Hetherington. (c) Ground 3 - There was no competent investigation by the police informant or discovery in the police brief of evidence of pertinent matters said to have been exculpatory of the Appellant, with 19 categories referred to in this respect. (d) Ground 4 - The trial Judge erred in that he failed to direct a verdict of acquittal in the Crown circumstantial case concerning the charges of using false instruments (Counts 2, 3, 4 and 5) as: (i) the entirety of the circumstantial case lacked probative force; (ii) the totality of the evidence was incapable of carrying with it an inference that the Appellant made or used false instruments of such force that "it could not reasonably be gain said"; (iii) there was no evidence that could be taken into account by the jury that was amenable to assessment or capable of affording a guilty verdict. (e) Ground 5 - The trial Judge erred in that he failed to direct a verdict of acquittal in the Crown case concerning the obtaining of money by deception as (Count 1): (i) a reasonable jury, in considering its verdict, could not resolve the disparity and repugnancy between the oral evidence of Raymond Gall with written recitals made by him in exhibited documents (with elaboration upon this proposition being contained in the ground); (ii) the oral evidence provided by Crown witnesses Raymond Gall, Brett Gall, Brian Purkiss and George Dasios was a manifest fabrication, having no rational or sensible content by reference to usual business and commercial practices of the kind that attended the charges. (f) Ground 6 - The trial Judge failed to adequately direct the jury in respect of evidence concerning the charges of using false instruments, by reference a number of propositions which were advanced at trial on behalf of the Appellant. (g) Ground 7 - The trial Judge erred in law by permitting the Crown to adduce identification and related evidence concerning the Appellant under s.114 Evidence Act 1995 or in the exercise of his discretion prejudicing the defence case (in certain ways described in the ground). (h) Ground 8 - The Appellant was assailed and unfairly prejudiced in the preparation of his defence by the decision of the trial Judge to admit into evidence a third witness statement of George Dasios made after the trial commenced, and oral evidence therefrom, (in a manner further described in the ground). (i) Ground 9 - Counsel for the Appellant failed to advance all pertinent and cogent evidence in his examination of Crown witnesses and the Appellant, and in his submissions to the jury that was provided to him on instructions prior to the jury that was exculpatory to the Appellant (with certain categories of material described in the ground). (j) Ground 10 - The trial Judge erred in the exercise of his discretion prejudicing the defence case by admitting documentary evidence, not discovered in the Crown brief, that was capable through forensic documentary examination of providing evidence that was exculpatory of the Appellant to the effect that Brett Gall forged the signature of the Appellant on documents relating to the alleged purchase and registration with Racing NSW of the thoroughbred racehorse "Manor Born". (k) Ground 11 - The Appellant asserts that a witness, Charles Miller, was not reasonably available and was able to give evidence which constitutes fresh evidence (described in the ground). (l) Ground 12 - The combined and cumulative effect of each of the grounds of appeal has caused a serious miscarriage of justice. (m) Ground 13 - The convictions are unsafe and unsatisfactory and in all of the circumstances, there was a miscarriage of justice.

Earlier in this judgment (at [31]ff), reference was made to principles governing an appeal to this Court against conviction. Those comments were made in the context of the appeal from the 2009 trial, a trial by Judge alone. The 2007 trial was a jury trial.

However, the framework for appeals to this Court is no different. This Court is not conducting a rehearing. It is a court of error operating within the confines of s.6(1) Criminal Appeal Act 1912.

The lengthy grounds of appeal relied upon by the Appellant will be approached within the confines of permissible appellate examination by this Court under s.6(1) Criminal Appeal Act 1912.

It is appropriate to note the requirement for leave to appeal on any ground except one which involves a question of law alone: s.5(1)(a) Criminal Appeal Act 1912; Still v R at [8]. The decision whether leave to appeal ought be granted upon a particular ground involves an assessment of the arguability of this ground. The question of leave will be addressed when considering each ground of appeal.

Rule 4 Criminal Appeal Rules will also arise for consideration with respect to several grounds (see [38] above).

I turn now to consider the grounds of appeal. Grounds 1 and 13 (which are effectively identical) will be considered last. Submissions

Under this ground, and the written submissions in support of it, the Appellant advanced a number of claims concerning Detective Senior Constable Raymond Hetherington and his investigation of the matters of which the Appellant was convicted at trial. The written submission lists allegations by topic without any indication that these matters were ventilated at the trial.

The Crown submits that there is no evidence to support the allegations asserted in the Appellant's written submissions. Insofar as the written submissions refer to an investigation of Detective Senior Constable Hetherington by the Professional Standards Command of the NSW Police Force, the Crown submits that there is no evidence of any adverse finding made against the police officer in this respect.

The Crown submits that the balance of the allegations contained in the ground, that evidence was fabricated and false evidence was given, are not supported by evidence. Decision

The Appellant requires leave to advance this ground of appeal, which is not based upon a question of law alone. An assessment of the arguability of the ground may be undertaken briefly.

The ground, and submissions made in support of it, make strong allegations without evidentiary support. It is clear that a significant contest arose at the trial concerning the credibility and reliability of a number of witnesses, with the jury determining these issues adversely to the Appellant.

No evidentiary foundation (based upon the trial) is advanced which supports a hypothesis that Crown witnesses had been suborned or influenced in any way to give false or misleading evidence against the Appellant. It is not apparent that any suggestion along these lines was made by experienced counsel who appeared on behalf of the Appellant at trial.

The Appellant has not demonstrated that Ground 2 is sufficiently arguable to warrant a grant of leave to advance it. I would refuse leave to the Appellant to rely upon Ground 2. Submissions

Ground 3 involves a claim by the Appellant that there was no competent investigation by police of matters said to be exculpatory of the Appellant in 19 specified areas. It is not necessary to list the 19 areas in this judgment. The complaints appear to touch almost every aspect of the charges brought against the Appellant.

The Appellant's written submissions refer to a variety of aspects of the case, culminating in the submission that a competent investigation by the police would have revealed evidence exculpatory of the Appellant and that the failure of the officer-in-charge to do so arose "from conspiratorial and duplicitous activities on his part".

The Crown submitted that there was no evidence to support this ground. Detective Senior Constable Hetherington had been cross-examined by defence counsel at trial, and no allegation of misconduct involving alleged conspiracy and duplicity was suggested to him. Decision

Once again, the Appellant requires leave to rely upon this ground of appeal. It is a variation on the theme raised in Ground 2. In my view, it suffers from the same defect as that ground.

It was open to trial counsel for the Appellant to cross-examine Detective Senior Constable Hetherington upon matters properly arising and relevant to the trial. The police officer was cross-examined at trial, and allegations of the type raised in the grounds and the Appellant's submissions were not advanced.

The ground is advanced without evidence to support it. I note that some of the matters complained of in Ground 3 are picked up, in one form of another, in later grounds (such as Grounds 9 and 11). Those grounds will be addressed in turn.

I would refuse the Appellant leave to rely upon Ground 3. Submissions

The Appellant complains with respect to the failure by the trial Judge to direct verdicts of acquittal upon the charges of using false instruments under s.300(2) Crimes Act 1900. It is submitted that the entirety of the Crown circumstantial case lacked probative force. Submissions were made, by reference to the facts of the case, culminating in the contention that the Crown case was founded on a basis of fabrication and contrivance.

The Crown notes that no application was made by counsel for the Appellant at the close of the Crown case for verdicts by direction on the s.300(2) counts. In any event, the Crown submits that there was a clear case to be left to the jury on these counts. Decision

This ground of appeal asserts that there ought to have been a verdict of acquittal on Counts 2, 3, 4 and 5. On its face, the ground raises a question of law alone, so that leave is not required under s.5(1) Criminal Appeal Act 1912.

The Crown case involved a combination of direct evidence and circumstantial evidence. As will be seen when the unreasonable verdicts ground is addressed, there was a strong body of circumstantial evidence linking the Appellant to the documents and events which were the subject of Counts 2, 3, 4 and 5.

A ground of this type must be approached in accordance with principles stated by Dunford J (Greg James J agreeing) in R v Serratore [1999] NSWCCA 377; 48 NSWLR 101 at 130 [127]: "In determining whether there is a case to answer, the question to be decided is not whether on the evidence as it stands, the accused ought to be convicted, but whether on the evidence as it stands, he could lawfully be convicted: May v O'Sullivan (1995) 92 CLR 654 at 658. In considering such an application, the judge does not consider the probative value of the evidence as a whole, but only that evidence which, if believed and uncontradicted, could be accepted as proof of the Crown case: R v Towers (1984) 14 A Crim R 12 at 14, Doney v The Queen (1990) 171 CLR 207 at 214-215, R v R (1989) 18 NSWLR 74; and in a case of circumstantial evidence, such as the present, a finding of no case to answer is not open if there is evidence in support of the Crown case upon which the accused can be convicted, even though a reasonable hypothesis consistent with innocence can be postulated: R v JMR (1991) 39 A Crim R 39 at 44."

The Crown case against the Appellant on these counts was largely a circumstantial one. The Appellant is simply incapable of making good a submission that the trial Judge (although not asked to do so) ought to have directed verdicts of acquittal on the counts under s.300(2) Crimes Act 1900. There was ample evidence adduced by the Crown for each count to be left to the jury.

I reject Ground 4. Submissions

The Appellant makes submissions in support of this ground of appeal by reference to claimed deficiencies in the evidence. He contended that: (a) the entirety of the circumstantial case lacked probative force; (ii) the totality of the evidence was incapable of carrying with it an inference that the Appellant made or used false instruments of such force that "it could not reasonably be gain said".

The Crown notes, once again, that trial counsel for the Appellant made no application for a verdict by direction on the s.178BA Crimes Act 1900 count. In any event, the Crown submits that there was a clear case to be left to the jury on this count. Decision

No application for a directed verdict was sought at trial.

The Crown case involved a combination of direct evidence and circumstantial evidence. The submissions advanced by the Appellant involve factual issues which are not capable of satisfying the principles in R v Serratore.

I reject Ground 5. Submissions

The ground of appeal, and submissions made in support of it, contain complaints by the Appellant that the trial Judge failed to adequately direct the jury in a number of respects with regard to these counts. The topics identified by the Appellant include alleged deficiencies in the investigation and other argumentative statements reflecting the Appellant's perspective of the issues in the trial.

The Crown notes that no complaint was made, or redirection sought, on behalf of the Appellant at trial in the areas raised in this ground. It was submitted that leave ought be refused under Rule 4.

The Crown submitted, in any event, that the directions raised by this ground would not have been given at trial. The adequacy of the police investigation was not a live issue at the trial. Further, findings of fact, including the credit of Raymond Gall, were entirely within the domain of the jury.

The Crown noted that the jury had been properly directed with respect to circumstantial evidence. Decision

The Appellant requires leave to appeal under Rule 4 to rely upon this ground (see [38] above).

I accept the submissions for the Crown that the matters complained of under this ground, to the extent they were ventilated at trial, were issues of fact for the jury. No further direction was sought by trial counsel for the Appellant on the matters raised. The summing up of the trial Judge reminded the jury of submissions made by defence counsel. The Appellant has not demonstrated a foundation for a grant of leave under Rule 4.

I would refuse the Appellant leave to rely upon Ground 6.

This ground of appeal relates to the admission of identification evidence from Mr George Dasios, which was the subject of a ruling by the trial Judge after counsel for the Appellant had applied for its exclusion (T529-533, AB1076-1080; judgment of 22 June 2007 attached to Crown submissions).

Mr Dasios was the manager of the South Hurstville branch of the Commonwealth Bank of Australia in February 2004. He gave evidence identifying the Appellant as one of the persons involved in the transaction at the Bank when the sum of $650,000.00 was withdrawn. The evidence of Mr Dasios on the voir dire included evidence that he had seen the Appellant on a number of occasions, including in about mid-2005 when a person with whom Mr Dasios was walking in the street at Burwood approached the Appellant and said to him, "Damon Miller, where have you been"?

The point which called for a ruling by the trial Judge was whether visual identification evidence could be given by Mr Dasios. The issue was whether the Appellant had refused to take part in an identification parade: s.114(2)(c) Evidence Act 1995.

The trial Judge found that in the course of an electronically recorded interview with police on 20 January 2005, the Appellant had been asked to take part in an identification parade, but that he declined to do so. The submission made at first instance was that the Appellant's refusal to take part in an identification parade was confined to one event only, and did not extend to the events which were the subject of the trial of the Appellant.

The trial Judge found that the questioning of Detective Senior Constable Hetherington offered the Appellant an identification parade in relation to this alleged fraud, and that it was apparent that the Appellant rejected that offer.

The trial Judge found that the probative value of the challenged evidence was substantial, and that the danger of unfair prejudice to the Appellant was minimal. The evidence was admitted. Submissions

In support of this ground, the Appellant points to some parts of the record of interview with police on 20 January 2005. He submits that the evidence should not have been admitted at trial and that it was substantially prejudicial to the Appellant in the preparation of his defence.

The Appellant submitted further that, had he known identification evidence was to be given by Mr Dasios, he would have arranged for his father, Charles Miller, to be present at Court to give evidence on this aspect. This matter gave rise to a separate ground of appeal (Ground 11).

The Crown submitted that the Appellant's written submissions had quoted selectively from his record of interview with police on 20 January 2005. It was submitted that it was clearly open to the trial Judge to find that the Appellant refused to participate in an identification parade, so that there was no error identified in the trial Judge's findings.

With respect to the Appellant's claim of prejudice arising from the decision to admit the evidence of Mr Dasios, the Crown pointed out that at no time during the trial did the Appellant seek an adjournment, or a discharge of the jury, on the basis that he sought to call his father to give evidence. Decision

This ground of appeal seeks to challenge a ruling of the trial Judge that the Appellant had refused to take part in an identification parade on 20 January 2005, so as to open the door to admissibility of visual identification evidence for the purpose of s.114(2)(c) Evidence Act 1995. The trial Judge found that the answers given by the Appellant, in response to the invitation to take part in an identification parade on 20 January 2005, constituted such a refusal.

I accept the Crown submission that the Appellant has quoted selectively from the answers given by him in that interview. Fairly read, the series of questions and answers disclose a level of prevarication on the part of the Appellant on the topic of an identification parade, in circumstances where it was well open to the trial Judge to conclude that the request was for the Appellant to take part in an identification parade in relation to an alleged fraud on the ANZ Bank, being the subject matter of this trial. The Appellant's proposed construction of the questions and answers during the interview on this topic is, in my view, tortured and unrealistic.

Having found that the Appellant refused to take part in an identification parade, the requirement in s.114(2)(c) Evidence Act 1995 was met. Thereafter, the trial Judge considered the probative value of the evidence, and the danger of unfair prejudice to the Appellant, and proceeded to admit the evidence. No error has been demonstrated in this decision-making process.

The Appellant's claim of prejudice arising from the absence of Charles Miller to give evidence at trial will be addressed more fully with respect to Ground 11. To the extent that this aspect is raised by the Appellant in support of Ground 7, it is noteworthy that no application for adjournment was sought nor any application made to discharge the jury. This is a practical measure of the claim of prejudice now advanced by the Appellant.

It is sufficient to state with respect to Ground 7 that no error has been demonstrated in the admission of the evidence at trial.

I reject Ground 7. Submissions

In support of this ground, the Appellant picks up the theme in Ground 7, and contends that he was prejudiced in the conduct of his defence as a result of the contents of statements made by Mr Dasios. There is a claim of unfair prejudice.

The Crown submits that the resolution of this ground should follow the approach adopted with respect to Ground 7. Decision

The subject matter of Ground 8 appears to overlap with Ground 7, in that it relates to the evidence of Mr Dasios, including the evidence of the Appellant attending the bank on the day when the sum of $650,000.00 was handed over, and the topic of the availability of the Appellant's father, Charles Miller.

To the extent that submissions are made in support of Ground 8 which go beyond those contained in Ground 7, it is noteworthy that no application for adjournment of the trial was made by counsel for the Appellant nor any application to discharge the jury. Claims of unfair prejudice advanced before this Court may be measured, in a practical way, by the absence of steps of this type being taken by experienced counsel who appeared for the Appellant at trial.

I am not persuaded that leave ought be granted to the Appellant to advance Ground 8 in this Court.

Leave to rely upon Ground 8 should be refused.

With respect to this ground of appeal, the Appellant relied upon his own affidavit sworn 6 December 2008. In light of the contents of that affidavit, a waiver of client legal privilege was obtained from the Appellant, and the Crown obtained affidavits from the Appellant's trial counsel, Peter Mitchell Paish (sworn 8 June 2012), and his instructing solicitor at the trial, Anthony Goodridge (sworn 14 June 2012).

The hearing of the appeal proceeded upon the basis that the parties did not require the deponents of these affidavits to give evidence before this Court (T50, 1 March 2013) with the relevant ground of appeal to be determined by reference to the affidavits and other material before this Court on the appeal.

In support of this ground, the Appellant asserted, amongst other things, that he had provided to his legal representatives at trial a business card of Mr Tom Williams, solicitor of the firm, Williams The Law Firm. The Appellant asserted that he gave instructions to his trial counsel and solicitor with respect to this business card and its suggested relevance to issues in the trial.

In his affidavit, Mr Paish denies the Appellant gave him the business card either prior to the trial or at any time. Other matters were contained in the affidavit of Mr Paish responsive to the matters raised in the Appellant's affidavit.

It is fair to say that there was a strong denial by Mr Paish of all of the assertions by the Appellant that instructions had been given to counsel on a range of matters which were not followed through.

The affidavit of Mr Goodridge was prepared with the assistance of his conference notes from the trial. Once again, it is fair to say that there was a strong denial of the matters asserted by the Appellant under this ground. Submissions

The Appellant submitted that his trial legal representatives had not complied with his instructions at trial in a manner which gave rise to a miscarriage of justice.

The Crown submitted that the affidavits of Mr Paish and Mr Goodridge rebutted the Appellant's claim in this respect and that the ground ought be rejected. Decision

The applicable principles where a ground of appeal against conviction relies upon the conduct of trial counsel were summarised in Outram v R [2013] NSWCCA 329 at [42]-[47]. The question ultimately is whether what occurred or did not occur at the trial occasioned a miscarriage of justice: Outram v R at [43].

Even if a factual foundation had been laid for a finding that counsel had not taken a step in the trial as desired by the client, it would still be necessary to consider the nature of the step in the context of the trial given counsel's wide discretion in the conduct of the trial, and the consequences said to flow from the course taken. It is ordinarily not for an appellate court to review the decisions made by counsel at trial: Outram v R at [47].

The Appellant bears the onus of establishing the facts upon which he seeks to rely in support of this ground of appeal. A fundamental difficulty for the Appellant is that there is a conflict in the accounts provided on this aspect by him, on the one hand, and his trial counsel and solicitor on the other hand. The contemporaneous conference notes of his trial solicitor do not support the Appellant's account.

There is no reason why the affidavits of the Appellant's trial counsel and solicitor should not be accepted.

An examination of the record of the trial indicates that the Appellant's counsel and solicitor represented him with appropriate vigour and thoroughness. The Appellant's legal representatives were experienced criminal law practitioners.

It may be inferred that, if the Appellant had provided to them what was said to be a significant item or document, they would have sought to deploy it in the Appellant's interests at trial. I do not accept the Appellant's account of events at the trial. The Appellant has not demonstrated a factual foundation in support of Ground 9.

I would refuse the Appellant leave to rely upon Ground 9 which, in any event, has no merit. Submissions

The Appellant submits that certain documents relating to the $650,000.00 withdrawal were not made available to the defence before trial, with a consequence that forensic documentary examination could not be undertaken with respect to them. Reference was made to the original withdrawal slip and the Thoroughbred Registration Form.

The Appellant noted his own evidence under cross-examination that the writing on a document seemed to be "pictorially similar" to his handwriting, although he denied that it was his writing (T756, AB1304).

The Appellant submitted that had the document been made available at an earlier time, there could have been further document testing capable of being undertaken.

The Crown submitted that no unfair prejudice had been demonstrated nor any error by the trial Judge.

The Crown submitted, in any event, that, given the denial of the Appellant of any connection with the fraud, and his ability to contest the evidence that the $650,000.00 was withdrawn, there could be no forensic advantage to the Appellant in obtaining forensic or handwriting expert evidence of these documents. Decision

The matters complained of under this ground do not appear to have been the subject of complaint at trial.

It is appropriate to bear in mind that the Crown case that the Appellant attended the South Hurstville branch of the Commonwealth Bank on 4 February 2004 was based upon the direct evidence of three witnesses (Messrs Brett Gall, Purkiss and Dasios), as well as the substantial body of circumstantial and documentary evidence. His Honour observed (on sentence) that the Crown case that the Appellant was present at the Commonwealth Bank on the occasion when the sum of $650,000.00 was handed over was "overwhelming" (ROS7; AB194). As will be seen in the context of Ground 1 (the unreasonable verdicts ground), this finding was both open and correct.

No error or miscarriage of justice has been demonstrated.

I would refuse leave for the Appellant to rely upon Ground 10. In any event, I would reject the ground as having no merit.

I reject Ground 10.

The Appellant asserted that his father, Charles Miller, was not reasonably available to give oral evidence at the trial so that his father's evidence constitutes fresh evidence.

In support of this ground, the Appellant relied upon part of his own affidavit sworn 6 December 2008 (paragraphs 90ff) and the affidavit of Charles Harold Miller sworn 17 August 2010.

The Crown relied upon the affidavits of Virginia Maria Boulous sworn 3 August 2012 and 28 February 2013.

Once again, it was agreed that it was not necessary for the parties to cross-examine the deponents of these affidavits for the purpose of determining this ground. Submissions

The Appellant submitted that this ground, which is linked to Ground 7, identified a body of fresh evidence which this Court should take into account on appeal. The submissions of the Appellant referred again to the identification evidence of Mr Dasios (Ground 7) and the evidence which the Appellant's father could have given on that issue if he had been available.

The Crown submits that at no time during the trial did the Appellant seek an adjournment or discharge of the jury based upon any suggestion that he wished to call his father to give evidence.

The Crown submits, as well, that the proffered fresh evidence is neither fresh nor credible. Decision

The relevant principles to be applied concerning fresh evidence appear in the extract from R v Abou-Chabake (at [132] above).

In the course of determining Ground 7, I expressed some conclusions which are relevant to this ground as well (see [294] above).

The Appellant contends that he was unaware until the trial that it was to be alleged (by several witnesses) that his father was also said to be present at the South Hurstville branch of the Commonwealth Bank in February 2004, on the occasion when the sum of $650,000.00 was obtained. It is said that Mr Charles Miller was overseas at the time of the trial and thus could not be called as a witness at the trial. In this way, it is said that the evidence of Charles Miller is fresh evidence.

As previously observed, it is noteworthy that no adjournment application was made, nor any application to discharge the jury because of any suggested difficulty in calling Charles Miller to give evidence. This is a practical measure of the claim of prejudice now advanced.

The Appellant has not demonstrated that this evidence is fresh evidence in accordance with the principles summarised in R v Abou-Chabake.

To the extent that there is some reliance under this fresh evidence ground (concerning the 2007 trial) upon matters relied upon by the Appellant under Ground 6 in the appeal from the 2009 trial, I repeat the conclusions expressed with respect to that ground earlier in this judgment (at [132]-[148] above). The Appellant has not demonstrated that the documents upon which he seeks to rely only came to his attention, and were available to him, as a result of a delivery by Ms Boulous of a box of documents following the completion of the Appellant's 2009 trial. The Appellant has not demonstrated that that material is credible and fresh or new.

I reject Ground 11.

In circumstances where each of the Appellant's grounds of appeal considered so far have been rejected, their cumulative effect does not give rise to any other conclusion.

Ground 12 ought be rejected.

These grounds of appeal should be considered together. The real ground of appeal is that the verdicts of the jury are unreasonable and cannot be supported by the evidence.

For reasons made clear earlier in this judgment (at [34]), the use of the formula "unsafe and unsatisfactory" is no longer appropriate. In these circumstances, Ground 13 is surplusage and no more need be said about it. The ground to be addressed is Ground 1. Submissions

The Appellant submitted that there was no evidence adduced by the Crown capable of identifying or establishing, to the criminal standard of proof, that he used false documentary instruments as charged. In support of this proposition, the Appellant made a number of submissions critical of the evidence of a number of Crown witnesses.

The Appellant submitted that the evidence of a number of Crown witnesses, who were said to have related business interests and not be independent, had been discredited completely by defence counsel at trial, thereby giving rise to a reasonable hypothesis that the Appellant did not make or use false instruments or obtain money by deception as charged.

The Appellant submitted that the totality of the evidence lacked probative force so that the verdicts of the jury were unreasonable and cannot be supported by the evidence.

The Crown submitted that there was a combination of direct evidence and circumstantial evidence before the jury which was more than sufficient to support the verdicts on each count. It was submitted that the Crown case was an overwhelming one, and that the Appellant left a trail of reliable circumstantial evidence in his wake so that, when taken in combination with the direct evidence, the verdicts of guilty were inevitable. Decision

The task of the Court in determining a ground of appeal such as this was summarised in Raumakita v R [2011] NSWCCA 126; 210 A Crim R 326 at 332-333 [31]-[34]: "31 In determining a ground of appeal which asserts, for the purpose of s.6(1) Criminal Appeal Act 1912, that the verdict was unreasonable or cannot be supported having regard to the evidence, this Court is required to apply the test set down in M v The Queen [1994] HCA 63; 181 CLR 487 at 493, and restated in MFA v The Queen [2002] HCA 53; 213 CLR 606. The Court is to make an independent assessment of the evidence, both to its sufficiency and quality. This involves a question of fact. The Court is to determine whether the evidence is such that it was open to a jury to conclude beyond reasonable doubt that the Appellant was guilty. The central question is whether this Court is satisfied that the Appellant is guilty of the offence charged in the first count: Morris v The Queen [1987] HCA 50; 163 CLR 454 at 473; SKA v The Queen [2011] HCA 13; 85 ALJR 571 at 575 [11]-[14], 576-577 [20]-[22]. 32 In exercising that function, the evidence ought not be considered piecemeal: The Queen v Hillier [2007] HCA 13; 228 CLR 618 at 637-638 [46]-[48]; The Queen v Keenan [2009] HCA 1; 236 CLR 397 at 435 [128]. This Court is required to consider the totality of evidence before the jury. This involves an assessment of direct evidence of witnesses, and inferences to be drawn from a combination of events: Rasic v R at [29]. 33 In some cases, the fact that the Court of Criminal Appeal has not seen or heard the witnesses at trial may have a bearing on the outcome of an appeal on an unreasonable verdict ground. In M v The Queen , Mason CJ, Deane, Dawson and Toohey JJ said at 494-495: 'In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. Although the propositions stated in the four preceding sentences have been variously expressed in judgments of members of the court in previous cases, we have put aside those differences in expression in order to provide authoritative guidance to courts of criminal appeal by stating the propositions in the form in which they are set out above.' 34 The M v The Queen formulation of the task of this Court has been emphasised by the High Court in later cases: The Queen v Nguyen [2010] HCA 38; 85 ALJR 8 at 14 [33]; SKA v The Queen at 575 [13]."

To the extent that the Crown case against the Appellant was based upon circumstantial evidence, in addition to direct evidence, it is appropriate to bear in mind the approach of this Court to appeals from jury verdicts arising from circumstantial evidence. In Rasic v R [2009] NSWCCA 202, the Court said at [30]: "This Court has emphasised the fact that a jury brings to consideration of a circumstantial case the common experience of members of the community who apply their collective knowledge of human affairs and their common sense: R v Kaldor [2004] NSWCCA 425; 150 A Crim R 271 at 272-273 [2], 293-294 [86]; Chahine v R [2006] NSWCCA 179 at [88]; BJR v R [2008] NSWCCA 43; 185 A Crim R 360 at 380 [97]. After citing these authorities, Giles JA (Howie and Buddin JJ agreeing) said in Burrell v R at [65]: 'This Court must make its own assessment of the evidence. But the assessment is of the cumulative effect of the evidence, and with due regard to the common experience of human affairs and common sense brought by the jury to their determination of guilt or innocence'."

In the present case, the jury had an opportunity to observe the Crown witnesses and the Appellant give evidence. In circumstances where challenges were made to the credibility of witnesses, including the Appellant, the jury had a considerable advantage in seeing the witnesses give evidence and their demeanour whilst doing so.

For the purposes of resolving this ground, it is helpful to refer to the trial Judge's factual findings on sentence (AB190-193), which summarise accurately the evidence adduced at the trial.

His Honour found that the essence of the deception alleged by the Crown was that the Appellant, pretending to be John Harris, solicitor, with the assistance of Mr Copeland, a mortgage broker, approached Mr Suman Sharma, a personal mortgage manager employed by the ANZ Bank. His Honour noted that the verdicts of the jury indicated that it was not satisfied beyond reasonable doubt that Mr Copeland was aware that the person pretending to be John Harris was an impostor.

Contact was made with Mr Sharma indicating that it was desired that a client, Ivan Pagett (whose daughter was said to be ill), wished to mortgage his home at Concord so that he could buy a home for his daughter. Mr Sharma received a telephone call from a person calling himself John Harris, who said he was the solicitor for Mr Pagett. Mr Sharma said that he had never met Mr Harris face to face. The whole transaction took a couple of months.

In support of the loan application, the documents referred to in Counts 2, 3, 4 and 5 of the indictment were presented to the ANZ Bank. Mr Sharma accepted the documents at face value, together with the assertion of Mr Harris that he was a solicitor, then acting for Mr Pagett. The documents presented to Mr Sharma included a falsified solicitor's letterhead, a falsified passport and driver's licence in the name of Ivan Pagett, falsified details of a personal cheque account in the name of Ivan Pagett, a falsified letter of employment and a false document purporting to be a PAYG summary. The purpose of these documents was to convince the ANZ Bank that Mr Pagett was a man aged in his 50s, receiving an annual salary in excess of $100,000.00 and well able to meet the required mortgage payments.

Mr Sharma conceded that he acted contrary to accepted banking practice in not meeting Mr Pagett, but stated that he spoke on the telephone to a person who said he was Mr Pagett, who said his daughter was ill and that he wanted everything done through his solicitor.

His Honour referred to the evidence of Mr Pagett, a 78-year old man who had been disabled since 1979. His Honour noted that his evidence was in no serious way contested. He said that he had never asked anyone for a mortgage over his home. He stated that neither of his two daughters were sick in 2003. He became aware of the alleged mortgage when he received in the mail a chequebook from the ANZ Bank.

Mr Pagett said that he had never held a passport and he had a driver's licence only until 1978.

His Honour referred to evidence given by Brett Gall, and his father, Raymond Gall. Brett Gall said he had known the Appellant for over 30 years. On Boxing Day 2003, Brett Gall had met the Appellant at the races. The Appellant told Mr Gall that he was coming into some money, and that he was thinking of buying a racehorse if the Galls had one for him. At a later date, the Appellant told Mr Gall he was going to get a cheque for $200,000.00 or $300,000.00. He asked if he could deposit that cheque into the bank account of the Galls.

Later, Mr Gall said he discovered that about $750,000.00 had been deposited as payment for the horse, which was to cost the Appellant about $100,000.00. It was at that time that the Appellant asked if it would be possible for him to get the $650,000.00 owing to him in cash. Mr Gall said he telephoned the bank to see if that could be done and was told that it could.

A date was arranged and, on that date in February 2004, Brett Gall, Brian Purkiss and the Appellant's father, Charles Miller, went to the Commonwealth Bank at South Hurstville. When they arrived at the bank, the Appellant was already present. Before entering the bank, papers relating to the sale of the horse were signed by the Appellant on the roof of his car.

The four men then entered the bank and were shown to the office of Mr Dasios, the manager. The money was brought in by a teller in bundles of $10,000.00, which was counted out by Mr Dasios on a counting machine. The total sum of $650,000.00 in cash was handed by Mr Dasios to the Appellant, who was identified by Mr Dasios.

Mr Dasios stated that the reason he remembered the Appellant was that he was the person doing all the talking.

His Honour noted that it was the Appellant's evidence at the trial that he was not present on this occasion, that he did not receive any part of the money, that he did not pretend to be John Harris, that he did not sign any documents relating to the Ivan Pagett loan and that he was completely uninvolved in the transaction.

It is useful, as well, to refer to the principal circumstances relied upon by the Crown, and a more detailed account of the evidence, in support of its case against the Appellant under the headings utilised at the trial. First Circumstance - There Was No Solicitor Called John Harris

Jennifer Platt, an officer with the Professional Standards Department of the Law Society of NSW gave evidence that there was no person by the name of "John Harris" practising as a solicitor at 48 Hunter Street, Sydney from July 2003 to February 2004.

Detective Senior Constable Hetherington also gave evidence that there was no solicitor's office on the relevant levels at 48 Hunter Street, Sydney nor a firm entitled "J Harris Solicitors" at any part of that building. Second Circumstance - The Appellant Received the Proceeds of the Cheque for $759,739.58 Drawn Against the $800,000.00 Loan Granted by the ANZ Bank By Way of $650,000.00 Cash and an 80% Share in a Racehorse

In November 2003, Brett Gall was the General Manager for Galloping Press. He gave evidence that he had known the Appellant for about 30 years and saw him about twice a year.

On Boxing Day 2003, Brett Gall saw the Appellant at Randwick races. In the course of that meeting, the Appellant told him that he was coming into some money and was thinking of buying a horse. The Appellant later contacted Brett Gall by phone and they discussed a price, about $100,000.00 including ongoing training costs for two-to-three years.

The Appellant told him that he expected to get a cheque for $200,000.00 or $300,000.00 from a property settlement.

The Appellant obtained the bank account details so that he could deposit the cheque into that account. Some time after the cheque was deposited, the Appellant asked Brett Gall, by telephone, if it would be possible to get the money to him in cash. Brett Gall called the Commonwealth Bank of Australia at South Hurstville and asked if the sum of $650,000.00 cash could be withdrawn. When he was advised that it could, a date was fixed and Brett Gall told the Appellant of the nominated date.

On that date, Brett Gall, Charles Miller and Brian Purkiss went to the bank. The Appellant was already there when they arrived at the bank. The papers relating to the horse, "Manor Born", were signed by the Appellant on the roof of the car before they all went into the bank.

The men were taken into a back room of the bank, where the money was brought by a bank officer and the bundles were counted. Brett Gall signed for the money, and the Appellant put the money into a brown suitcase he had with him. When they returned to the cars, the Appellant threw the suitcase on to the back seat of his car before moving it to the boot. Everyone, except the Appellant, drove back to work in Brian Purkiss' car.

Under cross-examination, Brett Gall denied that he and Brian Purkiss took the $650,000.00 cash.

Brett Gall said that the Appellant was still registered as an owner of the horse at the time of the trial.

Raymond Gall (Brett Gall's father) gave evidence that in 2003-2004 he was a director of Galloping Press. Raymond Gall said that he had known the Appellant for about 40 years.

The Appellant contacted Raymond Gall, asking when he would be able to put him on to a good horse. Discussion ensued and the Appellant told Raymond Gall that he had a property settlement coming up and he was interested in buying a horse.

Several further conversations ensued, and eventually the Appellant told Raymond Gall that the property matter had been settled and that the money would be put in one of Mr Gall's accounts. The Appellant told him that there would be more money than the price of the horse and that he wanted the balance in cash.

The Appellant later called Raymond Gall and said that the money had been transferred. The office manager confirmed that about $759,000.00 had been paid in. The horse sold to the Appellant was one that had been earmarked for the Melbourne sales. He stated that the agreement as to ownership was that the Appellant would have 80%, whilst he and his company would have 20%. Several reports were prepared in relation to the horse and the Appellant's father, Charles Miller, was given progress reports.

Brian Purkiss gave evidence in the Crown case. Mr Purkiss was an employee of Galloping Press and had known the Appellant for about eight or nine years.

Mr Purkiss stated that he was asked to drive Brett Gall and Charles Miller to the bank and he was present when the Appellant signed papers on the roof of his car outside the bank in South Hurstville on 4 February 2004. Also present were Brett Gall and Charles Miller. He said that the Appellant's daughter was inside the Appellant's car.

After the papers were signed, all persons went into the bank. Brett Gall spoke to someone at the counter and then the manager came out and they were taken to a private room where the money was brought in. It was in bundles of $10,000.00. The Appellant placed $600,000.00 or $650,000.00 in a bag and they left the bank. When the Appellant threw the bag onto the back seat of the car, Mr Purkiss told him that it would be safer to put it in the boot. The Appellant did so and drove off.

In 2004, Phillip Markou was employed as a teller at the Commonwealth Bank of Australia at South Hurstville. He gave evidence that he was aware that a customer had ordered a large cash withdrawal of $650,000.00 on 4 February 2004.

About midday on 4 February 2004, Mr Markou was told that the persons making that withdrawal were at the bank in the manager's office. He was given a withdrawal slip by the manager, Mr Dasios. He processed the withdrawal, counted the money, placed it into a large green canvas bag and gave it to Mr Dasios. He observed the people making the withdrawal leaving the bank and gave some descriptions of them. He thought there were a combination of men and women in the group, but he could recall in particular, an older gentlemen, pretty tall build, whitish grey hair, walking out with the brief case. Subsequently, he attended the Downing Centre Court complex to see if he could recognise any of the people he had seen on 4 February 2004, but he could not recognise anyone.

George Dasios gave evidence that, in February 2004, he was the bank manager of the Commonwealth Bank of Australia at South Hurstville when the sum of $650,000.00 was withdrawn. He described four men who attended, three being in their early 40s and the other man being in his late 70s. He also gave evidence that he subsequently saw one of the men he had described as being in his 40s, in April or May 2005, but he did not speak to him on that occasion. Mr Dasios then saw the same person about two months later when he was with his manager, Greg Ahladiotis, who spoke to the man and said, "Damon Miller, where have you been"? The person addressed as "Damon Miller" responded to Mr Ahladiotis, and the meeting between the three of them lasted about two minutes. Mr Dasios recognised that person coming out of the lifts in the court complex and entering the court room, the only difference being that the man had lost a lot of weight since then, but it was the same man (identified as the Appellant). Third Circumstance - The Appellant provided the same mobile number that John Harris provided as his contact number, as a contact mobile number for himself Fourth Circumstance - Callers traceable to the Appellant had been contacting the mobile phone number nominated by the person John Harris

John Burraston was a postman with Australia Post from September 2000 to May 2004, and a member of the Earlwood Bardwell Park RSL from 2003 to 2004. He gave evidence that he knew the Appellant from about mid-2002 to 2004. He frequently saw the Appellant at the RSL. They exchanged telephone numbers. Mr Burraston gave evidence of the contact telephone numbers he had for the Appellant.

The Appellant's daughter, Noelle, contacted Mr Burraston on the mobile phone using the number said to be that of John Harris on 31 December 2003, a day after the phone was activated, and again on 8 and 9 January 2004. Fifth Circumstance - Some Time in 2003 the Appellant Introduced Himself to Leonard Whitaker and Exhibited an Interest in Meeting with Mr Ivan Pagett About the Preparation of a Will Sixth Circumstances - Mr Whitaker Provided the Appellant with Mr Pagett's Residential Address at Links Avenue, Concord

Leonard Whitaker was a tourist bus driver in 2003. He gave evidence that he met Ivan Pagett about two or three years earlier, and would see Mr Pagett about three or four times a week and take him out according to Mr Pagett's itinerary. Mr Whitaker left his dog with Mr Pagett for eight months whilst Mr Whitaker went to Thailand.

Around the time that he knew Mr Pagett, Mr Whitaker was a member of the Earlwood Bardwell Park RSL, where he came to know David Miller. The Appellant had introduced himself as David Miller, not Damon Miller. Mr Whitaker used to drive the Appellant and his associates to the races. Mr Whitaker did not have the Appellant's telephone number, but the Appellant had Mr Whitaker's number and would ring him when he needed his services.

Mr Whitaker said that he had told the Appellant about his other customers and that he admired Mr Pagett and his independence. The Appellant asked Mr Whitaker, "Has he got a will"? Mr Whitaker replied, "I don't know, why don't you approach him"? He then gave the Appellant Mr Pagett's address at Links Avenue, Concord.

Ivan Karl Pagett (born in 1929) had lived at his home in Links Avenue, Concord for 45 years. He thought that the mortgage on the house had probably been paid off in 1969. The house was in his wife's name only and, when she died, he discovered a $20,000.00 mortgage which he paid off in 1992. Since that time, he had never sought to again mortgage the house.

Mr Pagett had been a plumber during his working life. When he received a cheque book from the ANZ Bank in 2003 or 2004, he threw it away.

Mr Pagett had never spoken to anyone at LJ Hooker Burwood about buying a house for his daughter, and he did not know anyone known as John Harris.

Peter Hernfield gave evidence that he was a real estate agent employed by LJ Hooker Burwood. In October 2003, he received a telephone call at his office from a man calling himself Ivan Pagett. That person sounded as if he was in his 50s. He said that he was buying a home for his daughter and that his solicitor was John Harris of Hunter Street, Sydney with a telephone number being provided.

An arrangement was made for Mr Pagett to attend the property for an inspection on 7 October 2003, but no one turned up at the appointed time. When he returned to the office, he contacted the number given to him and a voice message stated that he had contacted "Ivan Pagett", but the voice sounded different to the person to whom he had previously spoken. Mr Hernfield left a message but the person did not contact him.

Mr Pagett's daughter, Narelle Brien, gave evidence that she knew a solicitor named John Carmody, both professionally and socially, though he had not acted as her solicitor since about 1995. Between 1992 and 1995, she had occasion to access her father's Certificate of Title for the property at Links Avenue, Concord. Her father had asked her to get that document from Mr Carmody's office because he wanted to help his other daughter out and act as a guarantor for her. She obtained the Certificate of Title for her father and, when it was not needed, she thought that it had been returned to Mr Carmody's office.

In cross-examination, Ms Brien said that she and her brothers were a little concerned about the friendship that had been formed between her father and Mr Whitaker, and the fact that Mr Whitaker was at the house. She agreed that the reason her father required the Certificate of Title was so that he act as surety for her younger sister's bail.

John Carmody gave evidence that he was a solicitor in practice since 1980 at Burwood, with the Pagett family as a client. In 1993, he handled the estate of the late Joan Pagett and arranged for the property at Links Avenue, Concord to be transferred to her husband. At that time, he took possession of the original Certificate of Title showing Ivan Pagett as the sole proprietor. The Certificate of Title had been in his office since then, except for a period from 4 October 1995 to 8 November 1996 when Mr Pagett's daughter, Narelle, took it away.

About November 2004, Mr Carmody became away of a fraudulent transaction concerning the property at Links Avenue, Concord. Mr Carmody did a title search and discovered that an application had been made for a replacement Certificate of Title. Mr Carmody then contacted the ANZ Bank on behalf of Mr Pagett, and informed the bank that his client had not entered into that transaction, and that he expected the bank to cause the mortgage registered by the bank over the title to be discharged and removed from the title.

Gregory Channell gave evidence that he was a solicitor employed as a Legal Officer by the Department of Lands (Office of the Registrar General of NSW). In October 2004, he was contacted by Detective Senior Constable Hetherington in relation to the alleged fraudulent transaction in connection with Mr Pagett's property at Links Avenue, Concord. A Land & Property Information search was conducted. It was found that the fraudulent Certificate of Title had the words "Local Government Area of Concord", whereas the real Certificate of Title bore the words "Municipality of Concord".

Mr Carmody wrote to Mr Channell on 9 November 2004 on behalf of Mr Pagett, enclosing a copy of a title search they had done, a Change of Name document which had been obtained and other documents. Seventh Circumstance - The Appellant Met the Valuer When he Visited Mr Pagett's Property at Links Avenue, Concord to Make his Assessment for the ANZ Bank Eighth Circumstance - The Appellant Required Access to Mr Pagett's Home to Access Information Relevant to the Pretend Loan Application and to Meet the Valuer

Mark Chung gave evidence that, in 2003, he was a property valuer. He conducted a valuation of the property at Links Avenue, Concord on 28 October 2003 for the ANZ Bank. He saw two persons at the premises. He met a person outside the house and said, "So you are a solicitor. Can I have one of your business cards"? The man said, "I don't have one on me". He described the man as being in his late 40s or early 50s with other features also described.

Mr Chung entered the house, the door was open and part of the time the man was inside the house and, at other times, he was outside. Towards the end of the valuation, another person arrived in a taxi. That person was not disabled and was also in his late 40s or early 50s. Mr Chung thanked the person he had first seen at the premises and left the property. He prepared a valuation report with the property being reasonably worth $1 million, and he sent the report to the ANZ Bank.

In cross-examination, Mr Chung said that the first person he described had unlocked the house with a set of keys.

The evidence of Mr Whitaker and Ms Brien (at [389]-[398] above) was also relevant to these circumstances. Ninth Circumstance - The Accountant Nominated in the False Tax Returns Tendered in Support of Mr Pagett's Alleged Income was Peter Hill, the Same Name Stated as an Accountant for the Appellant in a Document Found in the Appellant's Briefcase Upon Arrest Tenth Circumstance - The Tax Agent Number Quoted in the False Tax Documents Was Used by a Tax Agent With Whom the Appellant Had Been Associated

An Accountant, Robert Elliot, gave evidence that from 2000-2005 he ran a taxation services business at Bardwell Park. He met the Appellant at Christmas 2002, being introduced to him as David Miller.

Mr Elliot was shown the false tax returns used in support of Mr Pagett's alleged income. He said that Peter Hill was not a tax agent with whom he was familiar, but the tax agent number belonged to Mr Tony Taktak, a person to whom Mr Elliot was trying to sell his business and for whom he was preparing tax returns.

There was clear opportunity for the Appellant to obtain the tax agent number utilised on the false document through his association with Mr Elliot. Eleventh Circumstance - The Phone Number Provided as a Landline for Drain Savers (the Company Falsely Presented in the Loan Documentation as Mr Pagett's Employer)_Was a Telephone Number Allocated to a Billing Address at Bardwell Park Connected with the Appellant

The Appellant conceded that whoever fabricated the Drain Savers documents, used in support of the false application, included a telephone number associated with an address at Bardwell Park. There was evidence associating the Appellant with this address in a manner that permitted a finding that the Appellant had knowledge of, and an ability to use, that telephone number in any false document. The Appellant's Case

The Appellant gave evidence that he knew nothing of the matters alleged by the Crown. He denied having any knowledge of, or involvement in, an application to the ANZ Bank purportedly on behalf of Ivan Pagett, said to be a 54-year old plumber earning $122,000.00 a year, secured by a mortgage over the Links Avenue, Concord property.

The Appellant denied using the name John Harris or pretending to be a solicitor named John Harris.

The Appellant admitted that he knew Leonard Whitaker and John Burraston, but denied any association with those persons in the manner relied upon by the Crown.

The Appellant was cross-examined to some effect upon the range of his associations and access to premises and phone numbers, which came to be mentioned (in one respect or another) in false documentation relied upon in support of the loan application. The Appellant denied that he was involved in the activities in question completely. Decision

The Crown case against the Appellant comprised several powerful and overlapping elements: (a) direct evidence from Brian Purkiss, Brett Gall and George Dasios of the Appellant's attendance at the Commonwealth Bank on 4 February 2004 to obtain the sum of $650,000.00 in cash as a result of the deception of the ANZ Bank; (b) direct evidence from other persons who knew the Appellant, including John Burraston, Leonard Whitaker and Robert Elliot, which linked the Appellant to critical persons and events associated with the offences; (c) a range of fabricated documents used to deceive the ANZ Bank in support of the loan application, with features of those documents bearing tell tale links to the Appellant.

This was a powerful Crown case demonstrating that the Appellant was the person calling himself John Harris, solicitor, who had orchestrated the false loan application utilising Mr Pagett's property.

Having considered the record of the trial, in accordance with the principles referred to at [350] above, I am well satisfied that it was open to the jury to find the Appellant guilty on each of the counts charged against him.

The jury had the advantage of seeing and hearing the Appellant give evidence, together with other witnesses at the trial. That advantage would, in my view, have reinforced a conclusion that the Appellant was not a truthful witness, but rather a calculated fraudster who had devised the criminal scheme reflected in the charges of which he was convicted.

I express my own satisfaction that the guilt of the Appellant of each offence has been established beyond reasonable doubt.

I would reject Ground 1.

I have considered and rejected all grounds of appeal relating to conviction.

A perusal of the summing up indicates that all necessary and appropriate directions were given to the jury by the trial Judge. In the result, a properly directed jury was satisfied beyond reasonable doubt of the guilt of the Appellant on each of the counts brought against him. No basis has been demonstrated for this Court to disturb the verdicts of the jury.

No ground of appeal sought to rely upon a contrast between the Appellant's conviction and Mr Copeland's acquittal on all counts. This is entirely understandable as the Crown case against Mr Copeland was markedly different from (and very much weaker than) the powerful Crown case against the Appellant.

The Appellant relies upon the following grounds of appeal with respect to sentence: (a) Ground 14 - The sentence is manifestly excessive. (b) Ground 15 - The sentencing Judge, in finding that special circumstances were applicable to the Appellant with respect to the sentence to be imposed, erred in his discretion relating to an appropriate discount on sentence. (c) Ground 16 - The sentencing Judge, in finding that special circumstances were applicable to the Appellant with respect to the sentence to be imposed, erred in the exercise of his discretion or was otherwise unfair in the exercise of his discretion, in imposing the custodial sentence that was part cumulative in respect of the four charges under s.300(2) Crimes Act 1900. (d) Ground 17 - The sentencing Judge erred in not imposing concurrent sentences for the four charges under s.300(2) Crimes Act 1900, which were implicitly one collective part of the alleged criminal enterprise.

It will be apparent that the sentences imposed by Armitage ADCJ on 14 September 2007 had expired by the time the appeal was heard in this Court. This circumstance would often be a reason why this Court would not grant leave to an appellant to advance grounds of appeal challenging a concluded sentence.

However, the sentences imposed by Armitage ADCJ were in force at the time when Knox DCJ sentenced the Appellant in 2009, with a measure of accumulation being reflected in the sentences. In these circumstances, it is appropriate to address the Appellant's sentence grounds.

The sentencing Judge found that the offences committed by the Appellant were of a very serious nature. As a result of the enterprise, the Appellant had benefited to the extent of the sum of $650,000.00 handed to him by Mr Dasios and, in addition, he became entitled to a an 80% share in a racehorse, leading to a total benefit in the sum of some $759,000.00.

The sentencing Judge found that circumstances of aggravation, for the purpose of s.21A Crimes (Sentencing Procedure) Act 1999, included the substantial loss occasioned to the ANZ Bank and the fact that the offences were very well planned and prepared. His Honour observed that the false Certificate of Title was so well executed that it deceived, for a time, Mr Channell, the solicitor in the office of the Registrar General.

His Honour found the only mitigating factor to be that the Appellant did not have a record of previous convictions. The sentencing Judge was unable to make positive findings that the Appellant was unlikely to reoffend or that his prospects of rehabilitation were good.

The sentencing Judge considered the competing submissions concerning concurrency and accumulation, and accepted the Crown submission that the seriousness of the Appellant's conduct, in the acquisition and use of the false instruments referred to in the charges, required the imposition of partially cumulative sentences.

His Honour found special circumstances in view of the Appellant's age and the absence of any prior criminal history.

The grounds of appeal may be addressed together. The complaints contained in the grounds may be distilled in to the following three propositions: (a) the sentences for all offences should have been ordered to be wholly concurrent (Grounds 16 and 17); (b) although the sentencing Judge made a finding of "special circumstances", the non-parole period as a proportion of the total head sentence, is too high (Ground 15); (c) the overall sentence is manifestly excessive (Ground 14).

The sentencing Judge found special circumstances, by reference to the Appellant's age (47 years at the time of the offences and 50 years at the time of sentence) and his lack of criminal antecedents. The non-parole period on each count was 50% of the full term. As a proportion of the total term, his Honour fixed an effective non-parole that was 60% of the head sentence. I accept the Crown submission that this approach was generous. I would reject Ground 15.

The sentences imposed for the four offences under s.300(2) Crimes Act 1900 were entirely concurrent. No legitimate complaint can be made by the Appellant concerning that approach.

To the extent that Grounds 16 and 17 contend there was error in accumulating partially the sentence for Count 1 (by a period of one year), this approach was open to the sentencing Judge, in the exercise of discretion, applying the principles in Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at 47-48 [27]-[28] and the totality principle. I would reject Grounds 16 and 17.

The claim of manifest excess must be considered with close attention being paid to the objective gravity of the Appellant's crimes. The offences were serious and well planned and were committed over an extended period of time. The forgeries used by the Appellant were professional and convincing. The commission of the offences involved the Appellant pretending to be a solicitor. A substantial monetary gain was obtained by the Appellant and the sum is unrecovered.

I accept the Crown submission that the Appellant's moral culpability is high. He has demonstrated no remorse. Both specific and general deterrence remain significant factors on sentence.

The sentences were well open to his Honour in the exercise of sentencing discretion. The Appellant has not demonstrated that the sentences imposed upon him were unreasonable or plainly unjust so as to make good a claim of manifest excess.

I reject Ground 14.

The Appellant's appeals with respect to the 2007 and 2009 trials have been considered separately in this judgment.

The Appellant has failed to make good any of his grounds of appeal with respect to conviction and sentence at the 2009 trial.

The Appellant has also failed to make good any of his grounds of appeal against conviction and sentence at the 2007 trial.

I propose the following orders: (a) With respect to the conviction and sentence of the Appellant following a trial before Armitage ADCJ in 2007: (i) appeal against conviction dismissed; (ii) leave to appeal against sentence granted, but appeal dismissed. (b) With respect to the conviction and sentence of the Appellant following a trial before Knox DCJ in 2009: (i) appeal against conviction dismissed; (ii) leave to appeal against sentence granted, but appeal dismissed.

HARRISON J: I agree with Johnson J.

ADAMSON J: I have had the benefit of reading the draft reasons of Johnson J. I agree with the orders proposed and with his Honour's reasons. As to grounds 1 and 13 of the appeal against conviction following the trial in 2007 before Armitage ADCJ, I have reviewed the whole of the evidence and considered the respects in which there was competing evidence. I agree for the reasons given by Johnson J that it was open on the whole of that evidence for the jury to be satisfied beyond reasonable doubt that the Appellant was guilty of all the counts on the indictment.