Day v Rex (No 2) [2023] NSWCCA 312

Day v Rex (No 2) [2023] NSWCCA 312

Section 155 of the Crimes Act 1900 (NSW) does not require proof of a contract of service; it encompasses persons employed as collectors of moneys. The evidence was capable of establishing the applicant was employed as a collector of moneys, sufficient for him to be deemed a clerk or servant. However, the accumulation of improprieties in the prosecutor's closing address, predominantly comments on the applicant's failure to give evidence (contravening s 20 Evidence Act), could not be remedied by trial judge directions, resulting in a miscarriage of justice. The convictions must be quashed and a new trial ordered.

Parties
Applicant: Titus Emanuel Day; Respondent: Rex
Jurisdiction
Australia
Judgment Date
06 December 2023
Procedural Posture
Appeal Against Conviction / Leave to Appeal and Appeal Judgment
Outcome
Appeal allowed; convictions quashed; new trial ordered.
Legal Topics
Embezzlement by Clerk or Servant, Statutory Construction, Miscarriage of Justice, Prosecutorial Impropriety, Criminal Appeals, Onus of Proof, Statutory Interpretation, Jury Directions
Criminal Law Embezzlement by Clerk or Servant Statutory Construction Miscarriage of Justice Prosecutorial Impropriety Criminal Appeals Onus of Proof Statutory Interpretation +1 more

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Parties

Titus Emanuel Day

Applicant

Rex

Respondent

Procedural Posture

Appeal Against Conviction / Leave to Appeal and Appeal Judgment

Legal Issues

  1. 1 Whether the applicant was a 'clerk or servant' under s 155 of the Crimes Act 1900 (NSW)
  2. 2 Whether the Crown Prosecutor's closing address occasioned a miscarriage of justice
  3. 3 Whether undue pressure was placed upon the jury during deliberations

Ratio Decidendi

Section 155 of the Crimes Act 1900 (NSW) does not require proof of a contract of service; it encompasses persons employed as collectors of moneys. The evidence was capable of establishing the applicant was employed as a collector of moneys, sufficient for him to be deemed a clerk or servant. However, the accumulation of improprieties in the prosecutor's closing address, predominantly comments on the applicant's failure to give evidence (contravening s 20 Evidence Act), could not be remedied by trial judge directions, resulting in a miscarriage of justice. The convictions must be quashed and a new trial ordered.

Court Disposition

Appeal allowed; convictions quashed; new trial ordered.

Orders

  • Leave granted to appeal against conviction.
  • Appeal allowed; convictions quashed.