R v Andreola [2002] VSCA 92

14. After a trial occupying 21 days of hearing a jury convicted the applicant on every count on the presentment. The applicant did not have legal representation until the tenth day of the hearing. On the twelfth day counsel appeared for the applicant and the trial resumed on the thirteenth day.

17. Following conviction, the applicant was sentenced to a term of imprisonment with a minimum term fixed before he could be eligible for parole.

20. The applicant gave notice of application for leave to appeal against conviction in which two grounds were specified:

(1) That the learned trial judge erred in the exercise of his discretion by failing to discharge the jury when it became apparent that inadmissible documentary evidence was before the jury contained in the jury book.

(2) That in all the circumstances the verdict is unsafe and unsatisfactory.

26. The applicant was released on parole early in 2002 having been held in custody for a substantial period before conviction.

29. On 30 May, the applicant gave notice of intention to apply to amend the

grounds of appeal. The proposed new ground specified:

That the learned trial judge failed in his duty to the unrepresented applicant to ensure that he received a fair trial.

34. The Registrar referred the application to the Court of Appeal. The Court adopted the course followed in R. v. Wright[1] and refused leave to amend the grounds of appeal against conviction.

37. Mr Papas, who appeared for the applicant, abandoned ground 1 and proceeded to argue ground 2, limited to counts 1, 2, 3, 5 and 10. Count 1 alleged a substantive offence - that on 12 May 1999 the applicant dishonestly obtained for himself a financial advantage from Windsor Hotel (Australia) Pty. Ltd., namely accommodation at the Windsor Hotel, by deception namely by falsely representing that:

(a) he had the means and ability to pay for such accommodation;

(b) he would be contacting his banker in New York to facilitate transfer of moneys to pay for such accommodation.

43. Only a brief outline of the evidence relating to count 1 will be necessary. The evidence adduced by the Crown was not challenged by evidence from the applicant because he chose not to give evidence.

46. On 12 May 1999 the applicant arrived at the Windsor Hotel and spoke to one Ortner, the Rooms Division Manager. The applicant said that he wanted to stay at the hotel for an extended period, more than a month, and agreed to a room rate per day of $480 plus expenses such as telephone. Ortner told the applicant settlement of the account would be on a weekly basis and the applicant suggested he would be paying in cash with the money coming from a banker overseas. The applicant made a down payment of $280.

49. On 21 May the first weekly account was rendered but it was unpaid. On a number of occasions the applicant avoided or evaded payment, saying that he had the funds to meet the account. Ortner said that the applicant was permitted to stay in the hotel because he promised to pay, he said he had the means and ability to pay and he had a banker overseas.

52. The conduct of the applicant after 12 May in fobbing off the staff of the hotel with further promises to pay and on one occasion paying a small amount of the debt, in my opinion, entitled the jury to infer that the promises made initially to Ortner were false and dishonestly made.

55. Mr Papas argued that the evidence of Ortner as to the false representations was inconclusive and weak. I disagree. I consider the jury was entitled to look at the whole picture of a person arranging accommodation for about 30 days at $480 per day, agreeing to pay the account weekly and failing to do so. The evidence was sufficient to entitle the jury to find that the oral promise by the applicant that he had the means and ability to pay for the accommodation was a deception and dishonestly made, in my opinion.

58. Counts 2, 3, 5 and 10 alleged that on different dates the applicant dishonestly attempted to obtain for himself a financial advantage from three banks. Counts 2 and 3 concerned the Commonwealth Bank of Australia, count 5 concerned the National Australia Bank Limited and count 10 concerned the Macquarie Bank Limited. The modus operandi was similar in each case in that false representations were made to certain bank officers to obtain, in the case of count 2, a credit facility of $11,000, in the case of count 3 a transfer of $5,000 to the Bank of Hong Kong in favour of the Windsor Hotel, in the case of count 5, a credit facility of $50,000 and in the case of count 10, a credit facility of $8 million. Various, but similar, representations were made about the enormous wealth of the applicant, that his funds were overseas held in US Government Bonds, that he represented a wealthy US corporation, that he was going to buy Coles-Myer and that he had purchased a well-known golfer's jet and was in the process of having another built for him.

61. Mr Papas frankly conceded that the applicant made a number of representations to bank officers which were false. Although Mr Papas did not concede that the element of dishonesty was established by the evidence, it would have been open to the jury to find that the false representations were made dishonestly with the intention of obtaining a financial advantage from the bank to which the promises were made.

64. Due to the vigilance of the bank officers with whom the applicant dealt, the applicant did not obtain a financial advantage. In each case, the plans of the applicant were foiled, because the bank would not provide a facility or transfer funds without appropriate documentation and/or evidence that the applicant actually had the wealth he said he had.

67. Mr Papas submitted that the evidence in support of each of the "attempt" counts was incapable of proving that the activity of the applicant was more than merely preparatory to the commission of the offence proscribed by s.82(1) of the Act and immediately and not remotely connected with the commission of the offence. Section 321(N) of the Act in sub-s.(1) provides:

"A person is not guilty of attempting to commit an offence unless the conduct of the person is - (a) more than merely preparatory to the commission of the offence; and (b) immediately and not remotely connected with the commission of the offence."

71. Mr Papas submitted that until the applicant completed a loan application, or some other document appropriate for the particular financial advantage he was seeking, the representations were merely preparatory to the commission of the offence.

74. Mr McArdle submitted that the evidence of the applicant's acts went beyond being merely preparatory to the commission of the offence and it was open to the jury to so determine.

77. As to the two counts concerning the Commonwealth Bank of Australia (2 and 3) the evidence was interrelated. In mid May 1999 the applicant spoke to a bank officer, Camilleri, telling him that he was from the United States and that there was a sum of approximately US $40 million in Treasury Bonds, or the like, to be transferred over from the United States. The funds were to be deposited in two accounts with the bank in Melbourne. Mr Camilleri believed the applicant was a wealthy person. The applicant requested that $5,000 be transferred to the Windsor Hotel via the bank's offices in Hong Kong, but Camilleri said that until the money from the United States had gone into the account he would not transfer the funds. Further discussions took place on 26 May 1999 at which time the applicant sought an $11,000 credit facility be made available to him before clearance of the funds. The earlier request for $5,000 was also made in writing (Ex. D), to which Camilleri faxed a reply that the bank would remit $5,000 "once cleared funds are in your account".

80. In my opinion, Mr McArdle's submission is correct. The jury were properly instructed in the law and it was open to the jury to find on the whole of the evidence that the applicant's acts were more than merely preparatory and were immediately connected with the commission of the offence. The attempt to obtain, first $5,000 and second $11,000, was complete without documentation.

83. As to the count concerning the National Australia Bank (5) the evidence showed that on or about 1 June 1999 the applicant spoke to a senior manager (Bowes) requesting a meeting to discuss borrowing a significant amount of money in a complex structure for a "confidential purpose". At a meeting the applicant said he represented the Northwest Territories Limited that had significant assets, and that he intended to purchase Coles-Myer. He requested a credit facility of $50,000 to tide him over until documents arrived from overseas. There were further meetings and further requests for a line of credit before moneys arrived from Northwest Territories. No documents arrived from the United States and Bowes terminated the discussions.

86. In my opinion it was open to the jury to find that the applicant's acts were more than merely preparatory to obtaining a financial advantage from the National Australia Bank by false representations. It was a jury question and the guilty verdict cannot be attacked as unreasonable.

89. As to the count concerning the Macquarie Bank (10) the position is the same, in my view, although the financial advantage sought was considerably greater. The evidence showed that the applicant represented to bank officers that he was a person of substantial wealth who sought a credit facility of $8 million by various representations which were falsely and dishonestly made.

92. There was an extended period of negotiations during which time a number of documents relating to the applicant's seeking a line of credit of US $5 million. I accept Mr McArdle's submission that it was open to the jury to find the applicant's acts and conduct were more than merely preparatory.

95. In respect of each attempt count the offence of obtaining a financial advantage from the bank would have been completed immediately upon his being provided the financial facility he requested. The circumstance that loan documents were not brought into existence did not make the false representations preliminary or introductory. They were more than preparatory acts for they had a direct bearing on the applicant obtaining the financial facility he had sought.

98. No exception was taken to the charge, and no argument was advanced on appeal that the trial was not properly conducted. There was ample evidence upon which the jury could find counts 1, 2, 3, 5 and 10 proved. In M. v. R.[2] the court said that where a court of criminal appeal is asked to conclude that a verdict is unsafe and unsatisfactory, the court must ask whether it 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. In answering that question the court must pay full regard to the fact that the jury is the body entrusted with the primary responsibility of determining guilt or innocence and the fact that the jury has had the benefit of having seen and heard the witnesses.[3]

101. I am firmly of the opinion that the impugned guilty verdicts were reasonably open to the jury and the verdicts are not unsafe and unsatisfactory.

104. The application for leave to appeal against conviction should be dismissed.

[1] [1999] VSCA 145; [1999] 3 V.R. 355.

[2] [1994] HCA 63; (1994) 181 C.L.R. 487.