Judgment Summary
Supreme Court
New South Wales
Court of Criminal Appeal
29 May 2015
Chen v R [2015] NSWCCA 122
R A Hulme J, Davies J, Bellew J
Today the Court of Criminal Appeal dismissed an appeal against conviction brought by
Julian Chen in relation to 23 offences of obtaining a benefit by deception and 4 offences of
attempting to obtain a benefit by deception. Mr Chen was convicted by a jury in March
2014. The Court also refused to grant leave to Mr Chen to appeal against his sentence.
Between December 2004 and June 2007 Mr Chen caused 27 fraudulent business activity
statements (“BASs”) to be lodged with the Australian Taxation Office in respect of two
companies he controlled. The BASs falsely claimed a GST refund by including falsely
inflated figures relating to the purported purchases of large volumes of mobile phones. Out
of the total amount of refunds paid by the ATO to Mr Chen over $1 million was fraudulently
obtained.
The sole ground of appeal concerned a consciousness of guilt direction given by the trial
judge to the jury. A consciousness of guilt direction is given in circumstances where the
conduct relied upon by the Crown may, on the one hand be consistent with a legitimate
inference of guilt, while on the other may be innocently explained. Mr Chen submitted that
if the Crown proved that he lied in relation to the mobile phone transactions, all of the
essential elements of the offences would be established. In these circumstances, it was
submitted that the consciousness of guilt direction could confuse the jury and invite them to
engage in “circular” or “bootstraps” reasoning.
The Court was satisfied that the central issue was whether the Crown had proved that Mr
Chen’s claim that the mobile phone transactions were real and genuine was false. If the
jury was satisfied of the falsity of this evidence, the offences were established. Accordingly,
the Court found that the consciousness of guilt direction was unnecessary. However, it
concluded that there was no risk that the jury would have adopted an improper process of
reasoning. The evidence supporting the falsity of Mr Chen’s claims regarding the mobile
phone transactions was overwhelming and it was well open to the jury to be satisfied of Mr
Chen’s guilt. Notwithstanding the error, no substantial miscarriage of justice was
occasioned.
The asserted error in relation to Mr Chen’s sentence was described by R A Hulme J as
“hypercritical nit-picking” (at [79]). The Court concluded that there was no error in the
sentencing judge’s assessment of the objective seriousness of the offence. Mr Chen’s
sentence of 10 years with a non-parole period of 6 years remained undisturbed.
This summary has been prepared for general information only. It is not intended to be a substitute for the
judgment of the Court or to be used in any later consideration of the Court’s judgment.