R v Ceylan [2002] VSCA 53

11. After hearing argument from counsel for the applicant and respondent, I am of the opinion that the application for leave to appeal against the convictions recorded on counts 3, 4, 7, 8, 9 and 10 should be allowed, and the convictions quashed on the grounds of misdirection. In so concluding, I wish to make it clear that I have every sympathy for the trial judge whose task appears to me to have been a very difficult one. The sub-sections of s.83A of the Crimes Act are not easy to construe or apply and require close attention to detail in the manner of presentation of charges alleging offences against them. The essence of the crime of "making a false document" contrary to s.83A(1) is not simply that the document is false in the sense that it contains material untruths about past facts; rather its essence is to be found in the fact that the document "tells a lie about itself" in the sense that it purports to be something which it is not (that is, not "an authentic document"). Thus, the gravamen of the offence is to be found in sub-s.(6) which sets out the various ways in which a document can be "made false" for the purposes of the offence, and which marks the offence out from related offences such as "false accounting" (s.83) and "obtaining financial advantage by deception"(s.82). The difficulties in the interpretation of s.83A have been recently pointed up in the decision of the English Court of Appeal in Attorney-General's reference (No.1 of 2000)[1]. In the trial from which this appeal emanates, it seems to me that the attention to detail which the presentation of the Crown case required was lacking. Although the "making" and "using" counts were specifically "tied" to the document known as the "Westpac Personal Loan Application", little distinction appears to have been drawn in evidence and submissions between that document and other supporting documents such as "employer references" and "business financial statements" which were said to support the personal loan applications. Furthermore, it seems not to have been realized until late in the Crown case that the method adopted by Westpac for processing these claims was different from that which the prosecution had hitherto believed, and indeed that there was a lack of understanding by the prosecution witnesses (namely Westpac officers) of their own internal procedures for processing the applications. It became clear as the evidence progressed that many of the relevant bank documents had been lost or mislaid; whilst others were not produced until the trial was well under-way. The evidence of interviews conducted by the Bank's investigators was rendered less reliable because their notes "taken at the time" had been lost or destroyed. Likewise the Bank's "mobile officer" (Ms. Ruberto) appears not to have complied with the Bank's procedures in failing to ensure that the final typed version of the personal loan application form was signed in her presence.

14. None of the evidentiary problems to which I have adverted made the trial judge's task any easier. Indeed, more than once, he appears to have been critical (I think with justification) of the way in which the prosecution case was developing. Certainly, not all the criticism can, or should, be heaped at the feet of the prosecution, because these charges were born out of Westpac's own internal investigatory procedures. However, the flaws in the evidentiary material and the manner in which it was presented could only have operated to the detriment of the accused, no matter what care was taken by the trial judge (and there seems to have been ample) to ensure that the trial was fair. Even during the course of his Honour's charge to the jury, the prosecutor was informing the judge that they had been "at cross purposes" as to the nature of the case which the prosecution was making - the judge suggesting that the subject of the "making" and "using" charges had to be the Westpac Personal Loan Application form (because that was what the counts in the presentment alleged); whereas the prosecutor was asserting that he had "always understood" that the charge encompassed the "peripheral documents" such as the "employer references" and "financial statements" prepared by independent accountants. The matter does not seem to have been resolved, although it later assumed a significance as the consequence of a jury question, made in the course of jury deliberations, which in turn led to an application for discharge. I will return to that matter hereafter.

18. The presentment charged the applicant with 11 counts. Five of those counts alleged that he had "made a false document (namely a Westpac personal loan application)" in the name of five different clients; being Christopher Galloway (count 1), Graziella Rantino (count 3), Margaret Biasibetti (count 7), Anna Giampietro (count 9) and Gino Baresi (count 11). He was also charged with four counts of "using" the false documents made in the name of all the above mentioned persons save Baresi (counts 2, 4, 8 and 10). The remaining two counts , namely counts 5 and 6, alleged that he had dishonestly obtained cheques from the Westpac Bank in the names of Galloway and Rantino; namely the cheques procured by the use of the false documents asserted in counts 1 and 3. As I have already indicated, after a trial lasting more than a week, the jury convicted the applicant of the offences alleged in counts 3, 4, 6, 7, 8, 9 and 10 (that is, the offences involving the three female "loan applicants"); and acquitted him of all the offences (counts 1, 2, 5 and 11) involving the two male "loan applicants" (Galloway and Baresi).

21. All of the offences charged related to events which occurred in April and May 1996. At that time the applicant (in the name of "Nej. Ozdemir") conducted a business as a "finance consultant" from his home address in the suburb of Greenvale. It appears that he had had an association with the "AMP Society", because the evidence suggested that, at his home, he kept some stationery bearing the AMP letterhead. It would seem that in April/May 1996 he had a number of clients who wished to retain his services assisting them in obtaining personal loans for a variety of purposes from the Westpac Banking Corporation. At that time the applicant had "an avenue into the lending department of the Bank" through its "mobile officer" in the western suburbs, namely Ms. Michelle Ruberto. Among the clients who approached the applicant during that period were the "loan applicants" Galloway, Rantino, Baresi, Biasibetti and Giampietro. Galloway and Rantino were in a de-facto relationship at the relevant time and were therefore known to one another. They approached the applicant to assist them in obtaining personal loans from Westpac for the purpose of purchasing a motor vehicle. Each filled out a "personal loan application" on or about the same date, which applications were eventually forwarded to the relevant Department of the Westpac Bank via Ruberto. Baresi, Biasibetti and Giampietro were also associated with one another; Baresi (who had changed his name from Giampietro) had been married to Anna Giampietro; and thereafter had maintained a relationship with Biasibetti. Baresi was apparently introduced to the applicant by a solicitor; and it was Baresi who, in turn, introduced Giampietro and Biasibetti to the applicant. Baresi claimed to have sought the applicant's aid to secure a loan from the Westpac Bank in the amount of $90,000 for the purchase of a "concrete pump". Giampietro and Biasibetti claimed to have sought assistance in obtaining the re-financing of mortgages over properties which they owned. None of Baresi, Giampietro or Biasibetti was successful in obtaining loans from Westpac because the Bank's own internal investigation department had assessed the applications and determined them to be replete with misleading information. The fact that Westpac was not disadvantaged as a consequence of the falsity of the loan applications was, and is, no answer to the charges under s.83A of the Crimes Act because the offences are rooted in intention, not in consequence.

24. The issue in dispute between the parties at trial was a narrow one. The Crown case was that the "personal loan applications" submitted by the applicant to the Bank, via Ruberto, on behalf of Galloway, Rantino, Giampietro and Biasibetti were replete with false and inflated details of assets and income which had been fabricated and inserted into the loan applications by the applicant without the knowledge of the loan applicants, presumably with a view to enhancing the applicant's business and reputation as a "financial consultant". In this way, so the Crown contended, the applicant "made a false document" on behalf of each of the five persons contrary to the provisions of s.83A(1) of the Crimes Act; and "used the document, known to be false", contrary to s.83A (2), by submitting the ones made on behalf of Galloway, Rantino, Giampietro and Biasibetti to the Bank, via Ruberto. No charge of "using" the document alleged to have been "made" on behalf of Baresi was laid against the applicant as the evidence was that Baresi himself took the loan application form to the branch of the Westpac Bank in Thomastown. Because, as the Crown contended, Westpac was induced to issue cheques to Galloway and Rantino as a consequence of the false documents submitted, the applicant was charged with the offences of dishonestly obtaining cheques payable to Galloway and Rantino from Westpac (counts 5 and 6).

27. Although each of the loan applicants signed the application forms, all, save Galloway, said that they were unaware of the false and misleading details as to income and assets therein contained. The thrust of their evidence was that the applicant had - unbeknown to them - inserted the false details and that they had signed the form without reading it; or alternatively that the applicant had inserted false details after they had signed the form. In the case of Galloway, he agreed that he had been the author of some of the false details in his loan application, but disclaimed his authorship of other false details.

30. In support of the counts 3, 4, 7, 8, 9 and 10 (that is the counts of "making" and "using" false documents in the names of Rantino, Giampietro and Biasibetti), the Crown placed emphasis on certain documents lodged with the Bank in support of the personal loan applications. Thus, in the case of Rantino, an employer's reference on the letterhead of "Matreque Hair & Beauty", and signed by "Margaret Biasibetti, Proprietor" had been forwarded to the Bank with the personal loan application form. The letter, which Biasibetti said was forged, and of which Rantino disclaimed knowledge, stated that Rantino was employed full time with the "hair and beauty salon" at "$550 per week, gross". In the case of Giampietro, a letter purporting to be signed by "Mary Manchillo" and on the letterhead of "Head to Toe Body Care" accompanied the personal loan application form. This letter stated that Ms. Giampietro was employed with the salon at a "base wage" of $79,000 per annum. Once again, the Crown alleged that the letter was a forgery. The proprietor of the salon - Rose (not "Mary") Manchillo - gave evidence that the letter was not her letter and that the details were false. Giampietro disclaimed all knowledge of the letter. Finally, in the case of Biasibetti, the Crown relied on financial statements in respect of her business "Matreque Hair & Beauty" prepared by accountants Mascaro & Co. Those statements, which Mr. Mascaro had in fact prepared for the financial years 1994 and 1995, had - by the time they reached the Westpac Bank - been altered to show a far "healthier" business than the true figures reflected. Once again Biasibetti disclaimed any knowledge of how the statements came to be altered, and the Crown contended that the applicant was responsible.

33. The case made for the defence through cross-examination by his counsel (quite effectively, as it seems to me) was that the applicant was not responsible for the falsities alleged to appear in the personal loan application forms; rather he had prepared and faithfully recorded in them the details as he had been given them by the respective loan applicants who had thereafter acknowledged their accuracy by signing them. He had not been responsible, so it was put, for the false employment references and financial statements to which I have referred in the preceding paragraph. Indeed, in respect of the employment reference for Rantino from "Matreque Hair & Beauty", the applicant's trial counsel had been able to secure, on subpoena from the Bank, a copy of that letter which showed that a bank officer (one Twelftree) had checked the details and confirmed them with "Margaret" (presumably Biasibetti) on "7/5/1996". Mr. Twelftree gave evidence confirming that he had done so. Counsel for the applicant was able to point to many unsatisfactory features of the evidence of each of the loan applicants, including what appear to have been contradictions between their evidence and what they - or at least some of them - had said to the bank investigators.

36. Thus, the matter went to the jury on this basis - with the Crown contending that the applicant was alone responsible for falsifying the personal loan application forms; and the applicant contending that the evidence led by the Crown should not satisfy the jury that he had done so. The jury's verdict reveals that they were satisfied that the applicant had "made" and "used" the false documents comprising the forms lodged with the Bank on behalf of the three female loan applicants; but were not satisfied that he had done so in respect of the two male loan applicants.

39. On 20 June 2001, his Honour imposed sentences in respect of the offences of which the applicant had been convicted as follows:

His Honour directed that 6 months of the sentences imposed upon counts 7 and 8 and 6 months of the sentences imposed upon counts 9 and 10 be served cumulatively upon each other and upon the sentences imposed on counts 3 and 4. The total effective sentence was therefore one of 2 years and his Honour ordered that the applicant serve a minimum period of 15 months before becoming eligible for parole. He declared that, as at the date of imposing sentence, the applicant had already served 32 days of the sentence.

46. His Honour was informed by the prosecutor that all offences of which the applicant had been convicted carried a maximum term of imprisonment of ten years. In fact, as at the relevant date, the maximum penalty prescribed for the offences described by s.83A(1) and (2) was 7½ years. It was increased to 10 years by s.60 (and Schedule 1) of the Sentencing and Other Acts (Amendment) Act 1997.

49. In the course of passing sentence on counts 3, 7 and 9 (namely the counts of "making false documents" - being the loan applications of Rantino, Biasibetti and Giampietro - his Honour noted that the applicant had "added to the calumny by forging references [in the cases of Rantino and Giampietro] to accompany those basic loan applications". His Honour went on to say that "it was to the credit of the jury" that it had discovered for itself "almost incontrovertible proof" within the evidence of those forgeries. His Honour further referred to the "fabrication of Biasibetti's business accounts", intended to be utilized in her loan application. His Honour's reference to the jury discovering for itself the "almost incontrovertible proof" of the "forgeries" was a reference to the query raised by the jury after they had retired to consider their verdict as to the notation of "AMP" and the address on the back of the "Rantino employment reference" - a discovery which, as I have previously noted, led to an application for the discharge of the jury.

53. By notice given on 3 July 2001 the applicant applied for leave to appeal against the convictions recorded by the jury. That notice asserted five grounds, of which only grounds 1 and 3 were argued in this Court. Those grounds are:

1. That the convictions were unsafe or unsatisfactory.

3. That the trial judge misdirected the jury as to what constitutes a false document.

By leave of the Registrar given on 25 September 2001, the applicant added two more grounds (6 and 7) as follows:

6. The verdicts of the jury on counts 3, 4, 7, 8, 9 and 10 are unreasonable and cannot be supported having regard to the evidence and, as a consequence, there has been a substantial miscarriage of justice. ...

7. The verdicts of the jury on counts 3, 4, 7, 8, 9 and 10 are unjust or unsafe because there is a substantial possibility that the jury was mistaken or misled upon a material matter and, as a consequence, there has been a substantial miscarriage of justice. ...

Each of the additional grounds 6 and 7 were attended by particulars. These particulars, inter alia, alleged material misdirections by the learned judge. It is thus apparent that the grounds argued asserted misdirection on what, for the purposes of s.83A (1) and (2), constituted a "false document" alleged to be "made" and/or "used" by the applicant.

62. No exception was taken at the trial suggesting that his Honour had misdirected the jury as to the law, or that he had failed to relate the law as he had given it to the jury to the issues raised by the evidence. Yet, it is the essence of Mr. Holdenson's argument to this Court that the trial miscarried on account of these fundamental aspects. He has submitted to us that his Honour's directions were materially in error as to the fundamental element which the Crown had to prove before the jury could convict the applicant of making and using a false document, and that his Honour's directions had permitted the jury to stray beyond the perimeters of the offences alleged and to convict the applicant on the basis of making and using false documents other than the loan application forms which were the subject of the counts.

65. The instructions which his Honour gave to the jury as to what was required to be proved by the Crown to satisfy the offences described in sub-ss. (1) and (2) of s.83A of the Crimes Act were very brief. As I have previously noted, the essence of the offence of "making a false document" is not that the relevant document contains falsities, but rather that the document "tells a lie about itself" in one or more of the ways described in sub-s. (6) of s.83A. This distinction appears to have assumed little significance in the presentation of the prosecution case because the prosecutor, at the end of the day, appeared to be somewhat surprised when his Honour asked him upon "which of the falsities in terms of s.83A(6)" he was relying. The prosecutor responded "Yes, I think (c)". That paragraph provides that:

"For the purpose of this section, a document is false if it purports - (c) to have been made in the terms in which it is made by a person who did not in fact make it in those terms."

It was in this sense that the Crown was alleging that the document "told a lie about itself"; namely that it purported to have been made in its terms by a person who did not in fact make it in those terms. It is perhaps understandable that the prosecutor did not focus too much on the distinction between a document which incorporates false statements and a document which "tells a lie about itself" because the issue raised by the evidence was who was in fact responsible for the incorporation of the false statements within the relevant documents. But it was because this was the issue between the parties that the jury needed to be carefully instructed that they could not convict the applicant simply because they were satisfied that the personal loan application forms contained material falsehoods; and that they could only convict if they were satisfied to the requisite standard that the particular loan application "told a lie about itself" in that it purported to have been made in the terms in which it was made by the particular loan applicant who did not, in fact, make it in those terms. It was only in the event that the jury were told, in clear terms, of what it was that constituted the offence that they could rationally apply their minds to the significance of certain aspects of the evidence; such as the admitted fact that the applicants had each affixed their signatures not only to the loan application form, but also to the type-written version of that form which was returned from the Bank's Adelaide headquarters to Ms. Ruberto in Werribee.

70. Mr. Holdenson contended that his Honour's directions were insufficient to bring home to the minds of the jury the fundamental distinction between the making of a document which contains "lies" and the making of a document which tells a lie about itself. He also submitted that his Honour's directions were inadequate to bring home to the mind of the jury that they could only convict the applicant if they were satisfied that the personal loan applications were relevantly false; and that they could not convict simply because they found that a "supporting document" was a forgery. In this respect he pointed to the difference of view (to which I have previously referred) which existed between the prosecutor and the judge, well into his Honour's charge, as to what document or documents the jury were required to find as false before they could convict.

73. In giving his instructions on the law to the jury, his Honour read to them the provisions of s.83A (1) which creates the offence of "making a false document". His Honour continued:

"The section also has some other provisions about which I must instruct you. It provides, amongst other things, that a document is false if it purports to have been in the terms in which it is made by a person who did not, in fact, make it in those terms."

I interpolate that it is a pity that this instruction was incomplete in that it left out the word "made" where first occurring. It was also unfortunate that his Honour did not return to this topic or the provisions of sub-s.(6) at any further point in his charge. His Honour then told the jury what the meaning was of the words:

"[using] it (i.e. the document) to induce another person to accept it as genuine and by reason of so accepting it to do some acts to that person's ... prejudice."

"Now, perhaps, I should ... say to you to try and clarify what all that means ... is the elements of the offence which the Crown must establish beyond reasonable doubt. Firstly, that the accused made or altered the document in question. Secondly that the making or alteration of the document is such that it tells a lie about itself. Thirdly, that the accused knew that the document was false, in that it contained such a lie. Fourthly, that that lie may induce another to act upon it; fifthly, to the prejudice of that person. And lastly, that the making of the document or its alteration was done with the intention of either inducing another to act upon the truth of the falsehood inserted in the document by the making or alteration of it and thereby occasioning prejudice to some person. Once upon a time this offence was called forgery and it was a lot easier to explain, but now it is making a false document. You may think that, in the context of this case, what that boils down to, is the Crown asserts that [the accused] made or altered the applications to which these counts rely (sic). He altered them so a document told a lie about itself; namely that there was a lie contained as to, either the furniture or the income or the tools of trade or something like that, that the accused knew it was a lie and that he knew that that lie may induce another to act upon it. ... So, in other words, the Crown is saying to you, as I follow them, the accused either made up the lie or altered the document to contain what he knew to be a lie. He knew that it was a lie, he knew that that made the document ... false and the purpose of that was to induce the bank to operate to its detriment ... ." (my emphasis).

81. It is submitted by Mr. Holdenson, and I think with justification, that these directions were - in the context of the issues in this case - far from clear, and were calculated to mislead the jury into believing that, if the accused either inserted in or altered the document to include what he knew to be a lie; or that, if he knew that the document was false so as to induce the bank to pay, he would be guilty of the offence of "making a false document" in the sense that the document was "telling a lie about itself". The instructions, Mr. Holdenson submitted, were calculated to leave open a conviction if the jury concluded that the applicant had inserted what he knew to be a lie into the relevant document so that the bank would be induced to act to its detriment; and that the jury would be entitled to convict on the basis that, in those circumstances, the document was "telling a lie about itself" whether or not it purported to have been made in terms acceptable to the loan applicant who signed it. That this was what the instructions were inviting the jury to do, so submitted Mr. Holdenson, was confirmed by what the judge went on to tell the jury when instructing them about the meaning of "using a document which [the accused] knows to be false" contrary to s.83A(2) of the Act. His Honour said:

"You will recollect what I have just said, I hope, about what the Act also says about ... what is a false document. So the elements of this count require the following to be established ... by the Crown. Firstly, of course, the existence of a false document. That is one such as I have described earlier as containing a lie or lies. ... The second element is that the accused knew that the document contained a lie or falsehood. ... So here, the assertion made by the Crown is that the documents were false, however they came to be false, ... that ... the accused knew they were false and knowing they were false, ... used it (sic) in the sense that he proffered it to ... Ms. Ruberto but thereby to the Bank. ..." (my emphasis).

Again, Mr. Holdenson submits that these directions were calculated to cement into the jury's mind that they would be entitled to convict the applicant of "making" or "using" a false document if satisfied that the personal loan application which was submitted to the Bank "contained what the accused knew to be a lie or lies". As Mr. Holdenson correctly submitted, the documents were not to be regarded as relevantly "false" for the purposes of s.83A simply because they contained a lie or lies. What the jury needed to be satisfied of, before they could convict, was that the application documents were not what they purported to be in the sense that they purported to have been made in the terms in which they were made by the persons (here the particular loan applicants) who did not in fact make them in those terms. It was only in that sense that a particular loan application could "tell a lie about itself".

86. In my opinion, Mr. Holdenson is correct in his submission that his Honour's directions as to the elements of the offences created by s.83A(1) and (2) were too obscure, and insufficiently related to the issues raised in the trial, to have enabled the jury to have properly discharged its function. It is true that his Honour told the jury that, before a document could be found to be false, it had to tell a lie about itself; but he did not explain with any clarity how the Crown was seeking to prove that element, beyond saying that the Crown contended that the applicant had made or altered the document so that it contained a lie about "the furniture, or income or tools of trade or something like that". But the real question for the jury was whether they could be satisfied to the requisite standard that the particular loan application which they were considering purported to be something which it was not in the sense that it purported to have been made in terms by a person who did not, in fact, make it in those terms. As Lord Ackner said in R. v. More[2], when speaking of s.9 of the Forgery and Counterfeiting Act 1981 (the equivalent of s.83A(6) of the Crimes Act):

"It is common ground that the consistent use of the word `purports' in each of the paragraphs (a) to (h) inclusive of s.9(1) of the Act imports a requirement that for an instrument to be false, it must tell a lie about itself, in the sense that it purports to be made by a person who did not make it (or altered by a person who did not alter it) or otherwise purports to be made or altered in circumstances in which it was not made or altered."[3]

Thus, to make a false document for the purpose of the offence created by s.83A(1) of the Crimes Act - as was the case in the common law offence of forgery - requires more than simply making or altering a document so that it contains known falsehoods. The relevant falsity goes to the character of the document itself, in the sense that it purports to be something which it is not.[4] As McHugh, J. said in Brott v. R. (supra at 447), after discussing relevant authorities:

"The foregoing discussion shows that the general rule of the common law was that forgery consisted in a person, with intent to defraud, making, altering or adding to an instrument so that the instrument contained a false representation that another person had signed or acknowledged the instrument or part of its contents. If the document contained no more than a false representation by the person who signed or acknowledged the instrument, or part of its contents, no forgery occurred."

92. The instructions which his Honour gave to the jury in this case do not, in my view, articulate with clarity the characteristics of the crime of "making a false document" and, in particular, what the section requires to be proved before the document in question can be said to "tell a lie about itself". Indeed, as I have said, the directions are calculated to invite the jury to find the crime proved if the accused made or altered a document so that he knew that it contained a lie. If his Honour had instructed the jury as to what was required to be proved before the jury could be satisfied that the document "told a lie about itself" - namely that it purported to have been made in terms by a person who did not make it in those terms - it would have focussed the jury's attention upon the real issue which was in contention between the Crown and the applicant. This is so because the applicant's case was that each loan application purported to be precisely what it was, and made in the terms required by the loan applicant; and that the best evidence of that was to be found in the fact that the loan applicants had acknowledged and adopted their applications by signing them. Indeed, bearing those undisputed facts in mind, it would seem to me that the Crown could only have proved the making of false documents if the jury were satisfied that, subsequent to the relevant loan applicant signing and adopting the document, and without that person knowing or authorizing, the applicant had materially altered its terms so that it could be properly said that it purported to be made in the terms in which it was made when the relevant loan applicant had not in fact made it in those terms. However, whether it was necessary for his Honour to give directions to that effect is of little consequence when, as I think, the directions which were given did not sufficiently direct the minds of the jury to those elements of the offences charged as to enable them properly to determine the issues in dispute before them.

95. For the reasons given, it is my opinion that the verdicts returned by the jury on counts 3, 4, 7, 8, 9 and 10 cannot stand. The misdirections and non-directions are such that the failure by trial counsel to take exception to his Honour's charge cannot, in my view, save those verdicts; nor is it possible to apply the proviso to s.568(1) of the Crimes Act.

98. The miscarriage to which I have referred was, in my opinion, compounded by the events which occurred towards the end of the trial. The prosecutor had placed emphasis on what he contended were false documents filed in support of the loan applications of Rantino, Giampietro and Biasibetti. These were, respectively, the employment references of "Matreque Hair & Beauty" (in support of the Rantino application) and of "Head to Toe" (in support of Giampietro) and the financial statements of Mascaro (in support of Biasibetti). The prosecutor addressed the jury on the basis that these documents were "false documents", and on the basis - as he confirmed to the judge - that they were part of the personal loan applications which were the documents charged as having been falsely made. The significance of these documents to the jury's deliberations became apparent when they raised their query with the judge as to whether they were entitled, in their deliberations, to take into account the "AMP logo" on the rear of Exhibit 6 - that is, the copy of the "employment reference" for Rantino. It appeared, as his Honour noted during the sentencing remarks, that the jury regarded their "discovery" as solid proof that the applicant had "forged" that document. Having declined to discharge the jury, the judge re-directed them. His Honour told the jury, correctly, that Exhibit 6 was part of the material before them which they were entitled to use in their deliberations. He also told them that, in that regard, they should bear in mind what he had previously told them about the drawing of inferences. However, having regard to the way in which the Crown had put its case, there was a significant possibility that, if the jury were satisfied that Exhibit 6 had been "forged" by the applicant, they would conclude, for that reason alone, that he was guilty of the offence charged. In my view, the matter having been raised, the judge should have instructed the jury that, if they were satisfied that Exhibit 6 had been fabricated by the applicant, they were entitled to use that satisfaction in determining whether or not the applicant had "made the false documents" (namely the loan applications) which were the subject of the charges, but that they were not entitled, for that reason alone, to conclude that he was guilty of the offence, or offences, charged. Such a direction, in my opinion, was required because count 3 alleged against the applicant that he had made a false document in the form of "the Rantino loan application" not that he had "forged" the employment reference which, even if it had been made contrary to s.83A(1), would have been rendered "false" for reasons different from those being alleged by the Crown in respect of the loan applications. It was, therefore, necessary for the judge to have directed the jury as to the use which they could make of the "employment reference", not only to avoid mis-use of it in respect of count 3, but also in relation to the counts which involved the loan applications of Giampietro and Biasibetti, in respect of which similarly impugned supporting references had been tendered. The fact that the applicant was convicted of the counts alleging breaches of s.83A relating to the loan applications of Rantino, Giampietro and Biasibetti, and acquitted of the other counts, tends to underline the need for a direction to have been given of the type to which I have referred.

101. In the normal course of events this Court, if it concluded - as I have - that a miscarriage of justice has occurred as a consequence of material misdirection or non-direction, would quash the verdicts on the counts affected by the error, send the matter back for re-trial on those counts, and re-sentence the applicant on the counts in respect of which the verdict is unchallenged. However, it has been submitted on the applicant's behalf that this is one of those unusual cases in which it would be open to this Court to enter verdicts of acquittal on counts 3, 4, 7, 8, 9 and 10 rather than direct a re-trial, having regard to the fact that the applicant has served nearly 12 months of the 15 months non-parole period which the trial judge directed to be served. It is further submitted that the age of the offences and the various personal circumstances of the applicant which were put before the trial judge should incline the Court to the view that the approach contended for would be the appropriate one to take[5].

104. In my view, this is a case where the course suggested by applicant's counsel is an appropriate one. Not only has the applicant now served a very significant part of the non-parole period directed to be served by the judge, but it seems to me that the offences alleged in counts 3, 4, 7, 8, 9 and 10 (particularly counts 3, 4, 7 and 8) would be, in the face of full and adequate directions, difficult to sustain upon re-trial. I would, accordingly, quash the convictions on those six counts and, in lieu, enter verdicts of acquittal. The sentence which his Honour imposed on count 6 has already been served. The consequence is that the applicant ought to be discharged

116. I have read the reasons for judgment in draft of the President and I agree in the orders proposed in the final paragraph for the reasons he gives.

[1] [2001] 1 W.L.R. 331.

[2] [1987] 1 W.L.R. 1585.

[3] See also Attorney-General's Reference (No.1 of 2000) [2001] 1 W.L.R. 331 at 336 per Lord Woolf, C.J. (delivering the judgment of the Court).

[4] Brott v. R. [1992] HCA 5; (1992) 173 C.L.R. 426 at 430 per Brennan, J. (dissenting on the conclusion); Ex parte Windsor (1869) L.R. 1 C.C.R. 200 at 204 per Blackburn, J.; R. v. Roberts [1886] VicLawRp 33; (1886) 12 V.L.R. 135 at 142.

[5] cf. R. v. Bartlett [1996] VICSC 47; [1996] 2 V.R. 687 at 698-9 and the cases there cited.