Sigalla v R (No 2)

1. [1]

   THE COURT: On 22 November 2016, following a trial in the Supreme Court before Adamson J and a jury, the applicant Andrew John Sigalla was convicted of 24 counts of dishonestly using his position as a director of TZ Ltd (“TZL”) with intent to gain a benefit for himself or a third party, in contravention of s 184(2)(a) of the (CTH) Corporations Act 2001 (“Corporations Act”). On 10 February 2017, he was sentenced to a total term of imprisonment of ten years, commencing on 22 November 2016 and expiring on 21 November 2026, with a non-parole period of six years, expiring on 21 November 2022. Although he apparently filed a Notice of Intention to Appeal within time on 1 March 2017, and received the benefit of an extension of time to file a Notice of Appeal until 1 September 2017, a further extension was refused, and a Notice of Appeal was ultimately not filed until 19 December 2019, by when it was long out of time. By that Notice of Appeal, the applicant appealed from his convictions on grounds of misdirection of the jury as to the elements of an offence contrary to s 184(2)(a) of the Corporations Act; and failure to direct the jury that it could not convict unless satisfied beyond reasonable doubt that the applicant did not have an honest belief that he was entitled to the funds paid to him or at his direction. He sought leave to appeal from the sentence on grounds relating to the application of the totality principle; parity; and a holding that his failure to acknowledge wrongdoing or express remorse precluded a finding that he had any prospects of rehabilitation.

2. [2]

   In a judgment delivered on 3 March 2021, this Court extended time for filing the Notice of Appeal to the date on which it was filed, dismissed the appeal against the convictions, granted leave to appeal against the sentence and allowed the appeal, quashed the sentence imposed by the trial judge, and in lieu thereof substituted a sentence of nine years and six months’ imprisonment, commencing on 22 November 2016 and expiring on 21 May 2026, with a non-parole period of five years and nine months, expiring on 21 August 2022. [1] This judgment assumes familiarity with that judgment.

3. [3]

   On 15 March 2021, the applicant applied, pursuant to (NSW) Criminal Appeal Rules 1952 (“Criminal Appeal Rules”), r 50C(1), [2] for the Court to set aside or vary the order dismissing his appeal against conviction, and, pursuant to r 50C(1A), for leave to make that application. His application identified four “reasons” why his appeal against conviction should be re-opened; they are summarised later. The applicant also requested that the Court sit a five-judge bench to hear his applications, and that they not be determined on the papers, but after further oral submissions and argument, and additional written submissions if necessary. He contended that “a hearing is necessary to agitate the complex factual and legal issues involved”.

4. [4]

   On 18 March 2021, the Court made the following directions:

5. [5]

   The Crown lodged submissions on 1 April 2021, opposing a grant of leave under r 50C(1A) and submitting that the application should be dismissed. The Crown submitted that, none of the grounds relied on by the applicant having any merit, the matter should be determined on the papers.

6. [6]

   The applicant lodged submissions in reply on 14 April 2021. Then, on 3 June 2021, the applicant lodged a further “application for leave to file additional arguments relating to sentence”. The substance of the additional submissions was to the effect that, having upheld his appeal against sentence, the Court had failed, in resentencing him, to consider all the “relevant matters” as was said to be required by the judgment of the High Court in Kentwell v R (“Kentwell”). [3] The applicant again requested that the Court sit a five-judge bench and that the applications not be determined on the papers, but after further oral submissions and argument, and additional written submissions if necessary.

7. [7]

   On 7 June 2021, the Court directed that the Crown lodge any submissions in response by Tuesday 15 June 2021. The Crown lodged submissions opposing the application on 15 June 2021. The applicant lodged submissions in reply on 25 June 2021.

Criminal Appeal Rules, r 50C

1. [8]

   Rule 50C provides as follows:

2. [9]

   Rule 50C provides one of the very limited exceptions to the general rule that once the Court of Criminal Appeal determines an appeal and its final orders are entered, it is functus officio and may not further consider the appeal. [4] It is historically, conceptually, and contextually analogous to other powers of courts to re-open a hearing after final orders are made before those orders are entered, and now, in limited circumstances provided by applicable rules of court, even after they are entered. Rule 50C(2) now ensures that the Court has the power, on application made within fourteen days after entry, to re-open an appeal in those circumstances in which it had always had such power before its orders were entered. [5]

3. [10]

   However, the circumstances in which a court may do so are confined. In Alramadan v Director of Public Prosecutions (NSW) (No 2), which was decided at a time when there was no such leave requirement as is now contained in r 50C(1A), the Court said of the approach to be applied in addressing such an application: [6]

4. [11]

   That statement was approved in Kauwenberghs v R (Cth), [7] in which the Court added: [8]

5. [12]

   The principles have recently been summarised as follows: [9]

6. [13]

   Thus the rule does not confer jurisdiction to rehear an appeal on the merits, [10] or permit an applicant to re-agitate an unsuccessful appeal or seek to argue it differently in the hope of obtaining a different result. [11] The rule permits the Court to reconsider and correct its orders to rectify obvious mistakes in the nature of slips, oversights, and misapprehensions, so as to reflect correctly its intention at the time of making the decision in question. [12] It permits the Court to reconsider its judgment where it has apparently proceeded according to some misapprehension of the facts or the relevant law, which cannot be solely attributed to the neglect or default of the party seeking a re-opening. [13] Failure to address a ground of appeal may constitute a basis for a grant of leave under r 50C. [14] However, in this context, a “misapprehension” refers to a mistake in the nature of an oversight or erroneous assumption, and not to a deliberate decision which is contended to be incorrect, for which the remedy, if any, is an appeal.

7. [14]

   The requirement for leave under r 50C(1A) is intended to act as a filter, to enable unmeritorious applications to be disposed of without a full hearing on the merits. In El Ali, [15] this Court said that the approach described in Alramadan should inform both the question of leave under r 50C(1A) and the disposal of the application under r 50C(1) or (2). On an application for leave, it will be relevant to consider whether there is an arguable case of a slip, oversight, or misapprehension within the scope of the rule; if so, whether it is apparently material; and, possibly, general discretionary considerations.

The application in respect of the conviction appeal

1. [15]

   The applicant’s submissions propounded the following four “reasons” for granting leave and allowing the application:

   1. (1)

      failure to consider ground 4 of the grounds of appeal, which was that “the applicant was denied a chance of acquittal that was fairly open to him on one or more of the 24 counts on the indictment as a result of the conduct of the trial as a whole”;

   2. (2)

      failure to comprehend the basis of the trial decision in two fundamental ways;

   3. (3)

      misapprehension of four material factual circumstances; and

   4. (4)

      misapprehension of seven questions of law (although only six were identified in the submissions).

2. [16]

   As will appear, the first reason is misconceived, and the others are an impermissible attempt to utilise a r 50C application to seek to reargue an unsuccessful appeal or to present new arguments and issues that were not agitated in the appeal.

3. [17]

   The applicant submitted that this Court had failed to exercise its jurisdiction by not considering and determining Appeal Ground 4. He submitted:

4. [18]

   The applicant’s Notice of Appeal contained the following four grounds:

   1. (1)

      the trial judge misdirected the jury as to the elements of an offence contrary to s 184(2)(a) of the Corporations Act;

   2. (2)

      the trial judge erred in admitting evidence of the Perpetual Loan and the applicant’s gambling-related activities because that evidence was not relevant or was otherwise inadmissible;

   3. (3)

      the trial judge erred in refusing to admit evidence that supported the applicant’s case at trial; and

   4. (4)

      the applicant was denied a chance of acquittal that was fairly open to him on one or more of the 24 counts on the indictment, as a result of the conduct of the trial as a whole.

5. [19]

   At a late stage, the grounds of appeal were amended, with grounds 2 and 3 being abandoned, and the following new ground 1A, which became the main focus of the appeal, being added:

6. [20]

   At the hearing of the appeal before this Court, the applicant was represented by experienced senior counsel, who, in respect of ground 4, said (emphasis added): [16]

7. [21]

   Then, after concluding argument on ground 1A, senior counsel said (emphasis added): [17]

8. [22]

   These passages show that the statements in the judgment of Brereton JA impugned by the applicant as “unequivocally false” and “not the truth” were indeed accurate, and that contrary to the applicant’s submission, his senior counsel did limit, waive, and abandon ground 4, to the effect that it relied only on the issue argued under ground 1A, being a complaint the trial miscarried because the jury was not directed that in order to be satisfied that the applicant was guilty of the charges, the jury would have to be satisfied beyond reasonable doubt that the applicant did not have an honest belief that he was entitled to the funds paid to him or at his direction.

9. [23]

   In Simmons, when considering whether a particular ground of appeal had been pressed on the hearing of the appeal in circumstances where, though expressed as a separate ground in the Notice of Appeal and separately addressed in the appellant’s written submissions, it was conceded in oral argument to be the “corollary” of other grounds, the Court explained: [18]

10. [24]

    In the present case, the Court did not further consider ground 4, because as ultimately pressed it depended only on ground 1A, which failed. This involved no slip, oversight, or misapprehension. This “reason” does not provide even a faintly arguable basis for re-opening the appeal.

11. [25]

    The applicant complains that this Court failed to comprehend the basis of the decision at trial in two respects: first, that in the trial the evidence was not “allocated” to any of the four essential elements of each of the 24 offences, without which it was not possible to comprehend the basis of the verdict; and secondly, that the trial judge allowed the jury to decide questions of law as to the legal contractual relationships among the parties, including the applicant’s claim of a quantum meruit, whether moneys were held in trust by TZL for another party, and whether invoices sent by the applicant to TZL evidenced “a definite contractual relationship”.

12. [26]

    These are essentially complaints about the trial judge’s directions to the jury. Neither of these matters was the subject of a ground of appeal, and so there was no occasion for this Court, when considering the appeal, to have addressed them. This “reason” involves an impermissible attempt to reargue the appeal, on grounds not previously advanced.

13. [27]

    The four significant matters that this Court was said to have misapprehended were:

    1. (1)

       the nature of the contractual relationship between the applicant and TZL;

    2. (2)

       that significant amounts of money paid to TZL were funds held on trust by TZL for the applicant, so that TZL did not suffer any detriment and the applicant gained no benefit from their appropriation;

    3. (3)

       that the applicant’s evidence refuting motive was ignored; and

    4. (4)

       that the majority of the payments to and for the benefit of the applicant were not effected by the applicant but by other directors of TZL.

14. [28]

    These matters had been relied on by the applicant at trial to refute the prosecution case that he acted “dishonestly”. They savour of arguments which might have been advanced on an appeal on the ground that the jury’s verdict, which apparently accepted the prosecution case, was unreasonable. However, the Notice of Appeal contained no such ground of appeal. In the absence of an “unreasonable verdict” ground, there was no occasion for this Court to do more than address the specific grounds that were advanced and relied upon. This “reason” is an impermissible attempt to reargue the appeal, on grounds not previously advanced.

15. [29]

    The questions which this Court was said to have misapprehended were that:

    1. (1)

       the Court was unable to determine if the claim of right defence was available for each of the 24 counts, because neither the trial judge nor the prosecution allocated any evidence to the determination of the claim of right for each and every count;

    2. (2)

       the Court did not understand that the threshold issue of the legal entitlement of the recipients to the moneys or shares was not determined by the trial court;

    3. (3)

       the circumstance that the applicant could be both a director and a capital raising consultant was never determined;

    4. (4)

       the Court ignored the legal consequence of the applicant’s argument that the moneys paid to him were payable pursuant to a claim of quantum meruit;

    5. (5)

       the various moneys received by TZL were held on trust for the applicant; and

    6. (6)

       it was not legally possible for the applicant as a de facto director to effect the relevant transactions. The Court misunderstood the issue of causation: the prosecution’s case was that the applicant caused all 24 payments of money or share issues, and had to prove that he somehow legally effectuated each transaction, having regard to the relevant corporate constitution and the Corporations Act; but the Court confused the applicant’s influence over TZL’s directors with the requirement of causation, and the circumstance that he requested payments does not mean that he caused TZL to make payments.

16. [30]

    As to (1), the issue in the appeal on the question of “claim of right” was that raised by ground 1A, which was whether the trial judge’s directions were inadequate by reason that they did not refer to the defence of claim of right. The Court concluded that they were not inadequate, because there was no requirement for a direction that the applicant could be convicted only if the jury were satisfied that he did not have an honest belief that he was entitled to the funds paid to him or at his direction: a defence in the nature of a ‘claim of right’ is logically incompatible with an offence containing a dishonesty element, and directions as to such a defence were unnecessary and inappropriate. [19] The ground of appeal did not require the Court to determine whether a claim of right defence was available, in respect of all or any of the offences, upon the evidence at trial.

17. [31]

    As to (2), the jury’s verdict, by deciding that the applicant acted dishonestly, when the prosecution case was that his dishonesty was his knowledge that he was not entitled to the money or shares, necessarily rejected the proposition that the recipients (the applicant and his companies) were legally entitled to them. Although this was not the subject of a ground of appeal, it was incidentally addressed in the principal judgment in the course of consideration of ground 1A (which was concerned with the adequacy of the directions as to “claim of right”), as follows: [20]

18. [32]

    No slip, oversight, or misapprehension is involved.

19. [33]

    As to (3), (4), and (5), these matters were not the subject of any ground of appeal, and were not argued in the appeal. The applicant’s submissions do not identify any passage in this Court’s judgment where any of the alleged misapprehensions was expressed. This Court was not required to, and did not, address these issues, because none of them was raised by the Notice of Appeal, and there was no unreasonable verdict ground. Again, this is an impermissible attempt to reargue the appeal, on grounds not previously advanced.

20. [34]

    As to (6), this matter was not the subject of any ground of appeal, though again it was addressed incidentally in the course of consideration of ground 1 (the substance of which was a complaint that the directions given to the jury were inadequate, “because they erroneously conflated the physical element (use of position as a director) with the mental element of dishonesty, and that the failure to indicate to the jury that these were independent elements which required separate consideration was exacerbated by the absence of any reference at all in the summing up to the ‘use of position’ element”). In considering the adequacy of the directions in the circumstances, the Court observed that it was not an issue at trial that the transactions did not involve a use by the applicant of his position as a director, the predominant issue being whether the use was a dishonest one; and the inference that the transactions were a manifestation of a use by the applicant of his position was inescapable, from the circumstance that his only role in and connection with the company was as a director, and from the flow of funds to the benefit of him or his companies. This was a considered view of the Court, for which reasons were given. [21] The applicant’s complaint is, in substance, that it was wrong. That is a complaint of error, not of misapprehension. If the reasoned conclusion of this Court is erroneous, the applicant’s remedy is not a r 50C application, but an application for special leave to appeal to the High Court.

21. [35]

    The fourth “reason” identifies no slip, oversight, or misapprehension that could engage r 50C. Moreover, even if it did, the applicant would still face the hurdle of materiality, in circumstances where, although grounds 1 and 1A were both fully considered on the merits, leave to argue them was refused under Criminal Appeal Rules, r 4, by reason that that the applicant had ample opportunity to object to the directions at trial but did not do so. [22]

The application in respect of the sentence appeal

1. [36]

   The applicant submits, first, that Kentwell requires that this Court must, in resentencing an appellant, “exercise its jurisdiction and consider all the “relevant matters” and circumstances to determine the correct sentence”, and that this Court “erred in merely adjusting the sentence so as to reverse the perceived effect of the sentencing error”; and, secondly, with reference to the mandatory considerations in (CTH) Crimes Act 1914 (“Crimes Act”), s 16A, including sub-s (2)(e) – “any injury, loss or damage resulting from the offence” – that “the Court of Criminal Appeal will not be able to sentence the applicant because neither the trial judge nor the Court of Criminal Appeal determined whether the applicant was legally entitled to the identified monies and shares and so cannot determine the injury, loss or damage resulting from the offence.”

2. [37]

   In Kentwell, the High Court held that where the sentencing discretion at first instance is found to have miscarried, it is not for the Court of Criminal Appeal to assess whether, and to what degree, the error in the exercise of the discretion had influenced the outcome, but it must proceed to re-exercise the sentencing discretion independently and afresh: [23]

3. [38]

   However, there is a distinction between “re-exercising the sentencing discretion” (which is a decision-making process), and “resentencing” (which is the pronouncement of a new sentence as a result of that process). The High Court also made clear that if, in the exercise of its independent discretion, after taking into account all relevant matters, including evidence of events that have occurred since the sentence hearing, the Court of Criminal Appeal determines that the same, or a greater, sentence is the appropriate sentence for the offender and the offence, then it is not required to resentence the offender, and may dismiss the appeal: [24]

4. [39]

   That is because the result of the Court’s independent exercise of discretion is that no lesser sentence is warranted in law. What Kentwell dictates is that an appeal can be dismissed, notwithstanding discretionary error by the sentencing judge, on the basis that “no lesser sentence is warranted in law”, if, after re-exercising the sentencing discretion, the Court of Criminal Appeal concludes that it would have imposed the same or a greater sentence.

5. [40]

   Moreover, Kentwell does not establish that, where specific error in the exercise of the sentencing discretion is found, the Court of Criminal Appeal must redetermine the sentence by reconsidering afresh each and every factual matter and evaluation that informed the sentence given by the primary judge, including those in respect of which no complaint was made or sustained. Since Kentwell, this Court has, in Turnbull v R (“Turnbull”), explained the ongoing relevance of findings in the first instance sentencing judgment when resentencing (emphasis added): [25]

6. [41]

   In the principal judgment, it was stated (emphasis added): [26]

7. [42]

   The Court proceeded to pronounce sentences which differed from those imposed by the sentencing judge, resulting in a reduction of the effective term from ten years to nine years and six months, and of the non-parole period from six years to five years and nine months.

8. [43]

   Those passages did not involve the Court considering whether the sentence imposed at first instance was inside or outside of any appropriate range of sentences, but rather involved the Court exercising its own independent discretion, turning its own mind to the relevant considerations, albeit paying due regard to and permissibly (consistently with Turnbull) adopting those findings and evaluations of the sentencing judge which were not found to be erroneous, ultimately deciding that a lesser sentence was warranted, and proceeding to resentence accordingly. The reference to the impact of totality was analogous to the reference in Kentwell to the position if the Court were to find, in its independent exercise of discretion, “that a lesser sentence is appropriate for one or more offences, but that a greater sentence is appropriate for another or other offences”, in which case it is not required to resentence; in the same way, a view by the appellate court that less concurrency and greater accumulation is appropriate may offset a conclusion that lesser individual sentences were appropriate, to produce a conclusion that the sentence it would impose, having regard to all the considerations, is no lesser sentence than that under appeal. In this case, it ultimately did not have that consequence.

9. [44]

   In other words, consistently with Kentwell and Turnbull, this Court took the view that the sentencing judge’s approach, but for the respects in which it was found to be erroneous, was correct, and that approach commended itself to this Court in the independent exercise of its own discretion. If, however, that approach on the part of this Court be inconsistent with Kentwell and incorrect, that would not be a slip, oversight, or misapprehension attracting r 50C, but an error for which the only remedy is an application for special leave to appeal to the High Court.

10. [45]

    The second aspect of the applicant’s submissions in respect of the sentence appeal appears to be that this Court did not – and could not – discharge its function on resentencing, by reason that it and the sentencing judge failed to determine whether the applicant was legally entitled to the moneys and shares he received, and therefore could not determine the injury, loss, or damage resulting from the offence, as required by Crimes Act, s 16A(2)(e).

11. [46]

    No ground of appeal complained that the sentencing judge had erred in this way. No such submission was advanced on the hearing of the appeal. This is an attempt to re-argue the appeal on different grounds.

12. [47]

    Moreover, the submission is spurious. It is implicit in the jury’s verdict that it found that the applicant was not legally entitled to the moneys and shares he appropriated. This issue did not have to be revisited on sentence.

13. [48]

    Nothing in respect of which r 50C could be invoked is apparent.

Conclusion

1. [49]

   As has often been stated, r 50C does not provide for a backdoor application to reargue an unsuccessful appeal, by which new grounds of appeal and arguments can be raised. [27] Save for “Reason 1”, which is misconceived in fact, this is such an application. No arguable material slip, oversight, or misapprehension such as could engage r 50C appears from the applicant’s written submissions. In the absence of any such matter having been identified, leave to make an application should be refused. In those circumstances, there is no point in convening an oral hearing, let alone is there any issue that would merit consideration by an enlarged bench.

2. [50]

   The order of the Court is that the applicant be refused leave to make an application under r 50C.