R v Tadic [2003] VSCA 28

Court of Appeal (Vic)|2003-04-10|Before: ORMISTON, CALLAWAY and EAMES, JJ.A.

Criminal law - Evidence - Police evidence that a photograph was a likeness of the applicant - Whether sufficiently relevant to be admissible - Whether judgment and verdict of acquittal should be entered - Crimes Act 1958 s.568(1)(2).

In order to dispose of this application I would prefer to conclude only that the totality of the Crown case on count 1 was insufficient to support the conviction. The issue of the photograph has been, arguably, overstated, for this photograph was not one of the applicant perpetrating the alleged crime. It was only a means to an end, namely, a means to obtaining a financial advantage by deception from the National Bank. It is difficult to believe that such poor reproductions of a driver licence could properly persuade a jury, especially as the original driver licence was not produced by those participating in the fraud. In the light of the concession that the applicant did not personally participate in any of the proved acts whereby the financial advantage was sought, the photograph could not in itself have served to identify the applicant as an offender other than by showing that in some way he had provided the licence to those who were shown in fact to have taken part in the fraud. In any event an inference had to be drawn that, by reason of his providing the licence, together with the other information about him which was used, he authorised or was party to an application in his name for a loan from the bank. To reach that conclusion his participation had to be shown to have been the only inference which could reasonably have been drawn. Having regard to the fact that the actual licence was not produced but only some poor reproduction of it (conceivably worse now than at the time of the alleged offence or at the time of trial), I do not believe the jury was entitled to draw that inference, nor were they entitled to infer on the whole of the material that the applicant was party to the alleged fraud. The verdict was therefore, in my opinion, unsafe and unsatisfactory. Consequently I would, for

somewhat different reasons, agree with the orders proposed by Callaway, J.A.

The applicant, who is now aged 54, was presented in the County Court on two counts of attempting to obtain a financial advantage by deception (counts 1 and 3), two counts of obtaining a financial advantage by deception (counts 2 and 4) and one count of obtaining property by deception (count 5). After a trial occupying 15 days, he was found guilty on counts 1 and 3 and acquitted on the other counts. Following a plea, he was sentenced to six months' imprisonment on count 1 and nine months' imprisonment on count 3, making a total effective sentence of nine months' imprisonment, which was wholly suspended for an operational period of two years. The applicant seeks leave to appeal against conviction only.

The grounds of appeal, as substituted by order of the Registrar made on 12th June 2002 read:

"1. The verdicts of guilty on counts 1 and 3 were, in the circumstances, inconsistent with the verdicts of not guilty on counts 2, 4 and 5. 2. The verdict of guilty on count 1 was unsafe and unsatisfactory having regard to the evidence led to prove that the applicant was the Michael Tadic who applied for the loan from National Bank Australia. 3. The learned trial judge erred in directing the jury about the use they may make of signatures found on exhibit `D' concerning count 1 and exhibit `AJ' - charge pp.582 1.7 to 583 1.2. 4. The verdict of guilty on count 3 was unsafe and unsatisfactory having regard to the evidence led to prove that the applicant was the Michael Jabman who applied for the loan from La Trobe Home Loans. 5. The verdict of guilty [on] count 3 was unsafe and unsatisfactory having regard to the evidence led to prove that there was an attempt to obtain a financial advantage form La Trobe Home Loans. 6. The learned trial judge erroneously summarized the evidence led by the Crown in relation to the element of attempt in count 3 - evidence at p. 173 1.9 to p176 1.16 pp.183 1.3 to 184 1.27 and charge at p.583 11.3 to 23."

Mr Elston, who appeared for the respondent at the hearing of the application, conceded grounds 5 and 6. The reason for conceding ground 5 was that there was insufficient evidence to establish that the alleged conduct of the applicant relevant to count 3 was more than merely preparatory to the commission of an offence.[2] The jury's error may be explained by the way in which the learned trial judge summarized the evidence relevant to that count (ground 6). I have no doubt that it is proper for us to accept those concessions.

Counsel for the respondent also conceded that, even if the application were otherwise unsuccessful, the sentence on count 1 should stand and the order for suspension remain. That is to say, the sentence of nine months' imprisonment imposed on count 3 would be set aside leaving the sentence of six months' imprisonment on count 1 wholly suspended for two years from the date on which sentence was passed below. That concession, too, should be accepted in the circumstances of this case, one of which is that the two year operational period has now expired without incident. It is unnecessary to say anything about the view that might be taken in a different case where there is no appeal against sentence but one of several convictions is quashed.[3]

Concessions were also made by Mr Stuart, who initially appeared for the applicant at the hearing of the application. He informed the Court that ground 2 would be argued only as part of ground 1 and, in response to a question from the Bench, agreed that there were only two issues remaining to be considered: first, whether the conviction on count 1 was inconsistent with the acquittals on counts 2, 4 and 5; and, secondly, whether ground 3 was made out. That is not to say that, in the latter case, the proviso to s.568(1) of the Crimes Act 1958 might not have to be considered.

I said that Mr Stuart initially appeared for the applicant because, after lunch on the first day of the hearing on 25th June 2002, counsel announced that his instructions and those of his instructing solicitor had been withdrawn.[4] I interpolate that, in my opinion, Mr Stuart's argument had been diligently prepared and attractively presented. When the hearing resumed on 4th February 2003 the applicant appeared in person. I understood him to adopt what Mr Stuart had said in support of grounds 1 and 3 and counsel's written outline of submissions. Some of the applicant's submissions were, however, made under cover of ground 2 as an independent ground.

If the matter rested there, there would accordingly be three issues for the Court to consider: first, whether the verdict of guilty on count 1 was inconsistent with the acquittals on counts 2, 4 and 5;[5] secondly, whether ground 3 is made out and, if so, whether it warrants appellate intervention; and, thirdly, whether the applicant's submissions, which included an application for leave further to amend the grounds of appeal, should be accepted. A further issue was raised by Eames, J.A. One always does that with hesitation but, by that stage, the applicant was unrepresented. In the peculiar circumstances of this case, I think it is expedient in the interests of justice that that further issue be considered.

Before proceeding, I shall say something about the facts. For reasons that will become apparent, it is unnecessary to do so in the detail that would have been required had it been necessary for me to express a concluded view on grounds 1 and 3 or on the applicant's own submissions.

Count 1 charged that the applicant dishonestly attempted to obtain a financial advantage for himself in the form of the provision of a personal loan facility of $20,000 from National Australia Bank Ltd. ("NAB"). The attempt was said to have taken place between 28th April and 4th May 1998. Count 2 charged that, on or about 18th May 1998, the applicant succeeded in dishonestly obtaining a financial advantage for himself in the form of the provision of a personal loan facility of $20,000 from NAB. Count 3 charged that the applicant dishonestly attempted to obtain a financial advantage for himself in the form of the provision of a personal loan facility of $330,000 from Latrobe Home Loans. The attempt was said to have taken place between 20th May and 30th June 1998. Count 4 charged that, on or about 24th May 1998, the applicant dishonestly obtained a financial advantage for himself in the form of the provision of a personal loan facility of $20,000 from Colonial State Bank. Count 5 charged that, on or about 26th June 1998, the applicant dishonestly obtained, from one Lisa Gribble, a computer and a number of computer components and accessories with the intention of permanently depriving Ms Gribble of that property. In each count particulars were given of the deceptions on which the Crown proposed to rely.

The personal loan facility the subject of count 1 was negotiated between Elizabeth Tan and Andrew Tsoukalas of PRD Home Loans Pty. Ltd. ("PRD") on the one hand and Paul Wolf, the manager of the Glenroy branch of NAB on the other. In April 1998 a loan application was faxed by PRD to NAB. The application was in the name of "Michael Tadic". Faxed with it as attachments were a number of documents purporting to relate to the financial position of the applicant. The application was refused by NAB. The deceptions on which the Crown relied were false representations that the applicant -

(a) had been employed as an owner/driver by Mattren Paving Pty. Ltd. since 1995;

(b) earned a taxable income of $59,508 for the financial year that ended on 30th June 1997;

(c) owned a 1987 Toyota Hiace van valued at $7,500;

(d) owned a Kenworth prime mover valued at $70,000; and

(e) operated an account with Colonial State Bank which had a credit balance of $1,700.

The loan application and supporting documents were Exhibit "B" at the trial. In the book of exhibits with which we were provided Exhibit "B" consists of nine pages numbered 2 to 10. Page 2 is a cover sheet. Pages 3, 4 and 5 are the application form, on the first page of which appear the representations (c), (d) and (e) above. The application form included a telephone number and an address, both of which the Crown sought to show were linked with the applicant. Page 6 of Exhibit "B" is a photocopy of a Colonial State Bank access card, a Medicare card, a heavy vehicle driver licence and an Australian Coaching Council card in the names of "Mr M. Tadic", "Michael Tadic", "Michael Tadic", and "Mr Mick Tadic" respectively. The only card with a photograph is the driver licence[6]. As we shall see, the Crown invited the jury to conclude that that photograph was a likeness of the applicant. Pages 7, 8, 9 and 10 purport to be Michael Tadic's income tax return for the year 1st July 1996 to 30th June 1997. It contains the representations (a) and (b) above.

The personal loan facility the subject of count 2 was negotiated between Mr Tsoukalas of PRD and Michael O'Gorman, the business banking manager of the Glenroy branch of NAB. In April 1998 a loan application was faxed by PRD to the bank and later Mr O'Gorman attended the PRD office, where he was given the original application. It was in the name of "Michael Portelli" and Mr O'Gorman was introduced to a person who claimed to be Michael Portelli. The attachments on this occasion also included a driver licence with a photograph. It purported to be a photograph of Michael Portelli. It was not the same photograph as that on the licence relevant to count 1.

The personal loan facility the subject of count 3 was negotiated by Ms Tan and Mr Tsoukalas of PRD on the one hand and Wesley Brown, a consultant with Latrobe Home Loans. Although the application was provisionally approved, it was not proceeded with. The application was in the name of "Michael Jabman" and the attachments included a driver licence with a photograph. Although the name on the licence is Michael Jabman, the photograph is very similar to that relevant to count 2. It could be the same.

The application for the personal loan facility the subject of count 4 was submitted by Ms Tan of PRD to Kim Taylor of Colonial State Bank. It was in the name "Michael Portelli". The supporting documents did not include a driver licence or a photograph. It is unnecessary to refer to count 5 except to say that the name "Michael Portelli" was used again and that the driver licence and photograph that were used resemble those relevant to count 2. They could be the same.

The real Michael Portelli was called as a witness at the trial. He said that he had no knowledge of the three applications that had been made in his name. Counsel for the applicant began his cross-examination by disclaiming any suggestion that Mr Portelli had made any of those applications. James Valos, a solicitor, gave evidence that he had acted for the applicant, that the applicant had told him that he had changed his name to Michael Jabman and that the witness had acted for him under that name. Mr Stuart argued, by reference to similarities between the various supporting documents attached to the loan applications, that the applicant was just as much a victim of counts 1 and 3 as Mr Portelli had been of counts 2, 4 and 5.

The case against the applicant was therefore circumstantial. There was no dispute concerning the conduct that had taken place. What the applicant denied, and the Crown had to prove, was that he was implicated in that conduct. So far as count 1 is concerned, the Crown relied on a number of circumstances, none of which was by any means conclusive. There were a limited number of strands in the cable of proof and, whilst the cable may have been sufficient in itself, none of the strands was particularly strong. In those circumstances any error of law relating to one of the strands in the cable invites careful scrutiny, because it is all the more likely to have been significant in practical terms.

The applicant wished to adduce evidence for the first time on appeal that his wallet, including his licence, had been lost in 1995. In that case, as Mr Elston pointed out, the evidence about to be considered would be of little or no moment; but the significance of the evidence is to be judged in the light of the way in which the trial was in fact conducted and the case that was left for the jury's consideration.

The application for a personal loan facility the subject of count 1 was, as we have seen, accompanied by a driver licence purporting to be that of the applicant and bearing a photograph which the Crown said was a photograph of the applicant. The photograph was of very poor quality. The exhibits have further degraded since the trial. The relevant exhibit in its present form is practically worthless. Even before degradation, there must have been a very real question whether the photograph was a recognizable likeness of the applicant.

Detective Acting Senior Sergeant Peck was called as a witness for the Crown. It was known that he would be asked to express an opinion as to whether that photograph was a photograph of the applicant. The admissibility of such evidence was challenged by defence counsel before the witness was called.

Her Honour ruled that the evidence might be led. The witness did not testify to any particular points of similarity, nor was an adequate foundation laid to show that he had a significant advantage in saying whether the photograph was a likeness of the applicant.[7] Indeed he dealt with the photograph relevant to count 1 and the three other photographs together and without distinction. The relevant part of his examination in chief reads:

"PROSECUTOR: Did you have, in the course of this investigation, before you loan applications purporting to be from Jabman, Tadic and Portelli?---Yes, I did. Did you examine upon those loan applications photographs of Victorian driver's licences that were available?---Yes. Could I ask you a bit more exactly, please, which loan application files it was that you took into account in making the observations that you are now going to refer to?---Loan applications of Jabman, Tadic and two of Portelli. What was it on those as to photographs that you took into account?---Victoria driver licences. Is there anything you are able to say as to the images on the Victorian driver's licences?---In my view they are of the accused. And what do you base that on?---My comparison, my dealings with the accused, viewing the photographs."

In my respectful opinion, her Honour erred in admitting that evidence. Reference was made in the course of argument to Smith v. R.[8], but I find it unnecessary to say anything about that case. It is enough to say that the evidence given by this witness was insufficiently probative to satisfy the common law test of relevance.[9] There was, accordingly, a wrong decision of a question of law within the meaning of s.568(1) of the Crimes Act and, for the reasons I have explained, the decision had practical significance. The unrepresented applicant should be given leave to amend the grounds of appeal to raise this issue and the ground should be upheld.

In the ordinary course, if the appeal succeeded only on that ground and the grounds that have been conceded, there would be a direction for a new trial on count 1. The ordinary course is important. Among other things, it avoids a judicial determination otherwise than on trial by jury in circumstances where it has not been held that the evidence adduced at trial required an acquittal[10]; but there is no doubt that s.568(2) confers a discretion which, in exceptional circumstances, may be exercised in favour of directing a judgment and verdict of acquittal even where it has not been held that the evidence at the trial was insufficient. There are many cases establishing and illustrating that proposition. It is sufficient for present purposes to refer to Director of Public Prosecutions (Nauru) v. Fowler[11], Kaighin v. R.[12] and R. v. Bartlett[13].

In the present case, in my view, there should be a judgment and verdict of acquittal on both counts. In the case of count 3, that is because the evidence at trial was insufficient to show conduct going beyond mere preparation. In the case of count 1, it is because of the whole of the case as now understood by the Court of Appeal, but in particular the facts that the sentence has been fully served, that the operational period has expired, that there was no breach during the operational period and that the Crown concedes that, even if the present application succeeded only in relation to count 3, the sentence on count 1 should not be disturbed.[14]

That conclusion makes it unnecessary to consider the other issues that I earlier identified. It is tempting to say something of the inconsistency argument because of the care that Mr Stuart took in developing it; but, as Justice Heydon has pointed out extrajudicially, it is better not to decide more than need be decided. The same is true of the applicant's submissions, except to say that, to a large degree, they represented an attempt to re-try the case in the Court of Appeal. It is very unlikely that the Court would or could have received the new evidence that the applicant desired to lead.

1. The applicant is granted leave to amend the notice of application for leave to appeal against conviction by adding a ground 7 reading:

"The learned trial judge erred in admitting the evidence of Geoffrey Raymond Peck at pp.389 l.28-390 l.13."

2. The applications otherwise to amend the grounds of appeal and to adduce new evidence are refused.

3. The application for leave to appeal against conviction is granted.

4. The appeal is treated as instituted and heard instanter and is allowed.

5. The convictions sustained by the appellant on counts 1 and 3 are quashed and the sentences passed thereon are set aside.

6. The Court directs a judgment and verdict of acquittal to be entered on each of those counts.

As the applicant is now unrepresented but previously incurred costs, an indemnity certificate should be granted pursuant to s.14 of the Appeal Costs Act 1998.

I have had the advantage of reading in draft the reasons for judgment of Callaway, J.A. I agree with the orders which his Honour proposes, and with his reasons.

[3] See R. v. Gibb [1997] 2 V.R. 576 and R.H. McL. v. R. [2000] HCA 46; (2000) 203 C.L.R. 452.

[4] The applicant explained to us, when the hearing resumed, that that was because his advisers were not prepared to argue the additional grounds that he wished to raise.

[5] Possibly some reference would have to be made to the verdict of guilty on count 3. It will be quashed because the conduct was merely preparatory, but the jury's view that there was a sufficient connection between that conduct and the applicant might have to be taken into account in assessing the inconsistency argument.

[6] "Driver licence" is the expression used in the Road Safety Act 1986 and in s.89 of the Sentencing Act 1991.

[7] The witness had been asked only what opportunity he had had of observing the applicant on one particular day in August 1998. He said that he had had a constant opportunity because he had been in the applicant's presence for most of the morning. Cross-examination and re-examination established that the witness had had the files containing the photographs in his possession prior to that date.

[9] Compare R. v. Stephenson [1976] VicRp 34; [1976] V.R. 376 at 380-381 and R. v. Priest [2002] VSCA 215 at [19].

[10] Dyers v. R. (2002) 76 A.L.J.R. 1552 at [23].

[14] Compare Edwards v. R. [1993] HCA 63; (1993) 178 C.L.R. 193 at 213.

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Judgment (55 paragraphs)

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