R v Ceylan [2002] VSCA 53

R v Ceylan [2002] VSCA 53 - VSCA 2002 case summary — Zoe

[3]

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.

[6]

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.

[40]

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.

[42]

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.

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Judgment (50 paragraphs)

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