Carnaby v The Queen

[2021] NSWCCA 275

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Carnaby v R [2021] NSWCCA 275

Hearing dates:

3 November 2021

Decision date:

19 November 2021

Before:

McCallum JA at [1]; Davies J at [2]; Adamson J at [3]

Decision:

In proceedings 2021/298644:

(1)   Application for release dismissed.

In proceedings 2016/373162:

(1)   Grant leave to appeal in respect of all grounds save for ground 4.

(2)   Refuse leave in respect of ground 4.

(3)   Dismiss the appeal.

Catchwords:

CRIME — Appeals — Appeal against conviction — applicant represented by competent trial counsel before withdrawing his instructions — it was open to the trial judge to refuse a further adjournment in circumstances of delays in obtaining new counsel, the length of the trial to date and the applicant’s ability to conduct the trial — it is a matter for the jury whether to accept or reject evidence of witnesses —no appeal lies against a verdict of not guilty — the obligation on the Crown to call or make available for cross-examination all relevant witnesses cannot apply to a witness who cannot be located — evidence of unsuccessful attempts to locate witnesses — applicant alleged unreasonable verdicts where inconsistencies in a witness’ evidence — no fundamental inconsistency that ought to have caused the jury reasonable doubt as to the applicant’s involvement — applicant is bound by forensic choice not to call witnesses — documents to be tendered agreed before trial counsel was dismissed — trial judge correct in not admitting evidence of a co-offender’s previous conviction where circumstances of the conviction were unknown — none of the verdicts of guilty were unsafe, unreasonable or inconsistent — it was open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt — transcript shows the extent to which the trial judge sought to ensure the applicant obtained a fair trial — time taken by the jury was not unreasonably short or an indication that they did other than discharge their functions appropriately

CRIME — Bail — Appeal bail — second application for release made by applicant for the purposes of preparing his appeal — appeal is to be dismissed — basis for bail being granted has fallen away — release application dismissed

Legislation Cited:

Bail Act 2013 (NSW), ss 18, 22

Crimes Act 1900 (NSW), ss 192E, 351A

Evidence Act 1995 (NSW), ss 128, 137, 191

Cases Cited:

Browne v Dunn (1893) 6 R 67

Carnaby v R [2021] NSWCCA 203

Doney v The Queen (1990) 171 CLR 207; [1990] HCA 51

Dublin, Wicklow & Wexford Railway Co v Slattery (1878) 3 App Cas 1155

Elias v The Queen; Issa v The Queen (2013) 248 CLR 483; [2013] HCA 31

M v The Queen (1994) 181 CLR 487; [1994] HCA 63

McInnis v The Queen (1979) 143 CLR 575; [1979] HCA 65

R v Birks (1990) 19 NSWLR 677

R v Suteski (2002) 56 NSWLR 182; [2002] NSWCCA 509

The Queen v Apostilides (1984) 154 CLR 563; [1984] HCA 38

Category:

Principal judgment

Parties:

Raymond Carnaby (Applicant)
Regina (Respondent)

Representation:

Counsel:
In person (Applicant)
C Gleeson (Respondent)

Solicitors:
Not applicable (Applicant)
Director of Public Prosecutions (NSW) (Respondent)

File Number(s):

2016/373162; 2021/298644

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

22 May 2020

Before:

O’Rourke SC DCJ

File Number(s):

2016/373162

Judgment

1. McCALLUM JA: I agree with Adamson J for the reasons her Honour has given.

2. DAVIES J: I agree with Adamson J for the reasons her Honour provides.

3. ADAMSON J: Raymond Carnaby (the applicant) seeks leave to appeal against his convictions ordered following a trial by jury before O’Rourke SC DCJ in the District Court at Sydney on 24 October 2019.

4. On 19 September 2019, the applicant was charged on indictment with a total of 22 counts. He pleaded not guilty to each count. All but counts 7, 9, 11 and 20 charged that the applicant dishonestly obtained a financial advantage for himself or another person contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW) (the fraud counts). Counts 7, 9, 11 and 20 charged that the applicant recruited someone to assist in carrying out a criminal activity contrary to s 351A(1) of the Crimes Act (the recruitment counts).

5. The Crown case, which is set out in more detail below, was, in substance, that the applicant was involved in applying for finance for himself and third parties to purchase luxury motor vehicles and that such applications were made on the basis of false documents which were submitted to obtain finance. The nature and details of the transactions and that they were fraudulent were the subject of agreed facts tendered pursuant to s 191 of the Evidence Act 1995 (NSW). The principal issue was the applicant’s involvement in the transactions and whether he was dishonest.

6. The charges and the verdicts are summarised in the table below.

Count	Facts	Verdict
Precious Metals and Gems Pty Ltd and Mahdine Obeid
1	Financial advantage in the form of credit in the sum of $124,589 (Audi Q7 registration NBP24T)	Guilty
2	Financial advantage in the form of credit in the sum of $124,589 (Audi Q7 registration NBP24S)	Guilty
3	Financial advantage in the form of credit in the sum of $146,972 (Audi Q7 registration NBP51F)	Guilty
4	Financial advantage in the form of credit in the sum of $252,247 (Audi A8 registration NBP51E)	Guilty
5	Financial advantage in the form of credit in the sum of $39,254 (Audi A1 registration CPD62U)	Guilty
6	Financial advantage in the form of credit in the sum of $118,256 (Audi SQ5 registration CSK85U)	Not guilty
7	Recruit Mahdine Obeid to assist in carrying out criminal activity	Guilty
Impact Quality Flooring Pty Ltd and Afaf Yassin
8	Financial advantage in the form of credit in the sum of $235,839 (Mercedes Benz E63 registration COU71S)	Guilty
9	Recruit Afaf Yassin to assist in carrying out criminal activity	Guilty
MKY Enterprises Pty Ltd and Mohamad Younes
10	Financial advantage in the form of credit in the sum of $375,405 (Audi R8 registration NBR01J)	Guilty
11	Recruit Mohamad Younes to assist in carrying out criminal activity	Guilty
Consec Personnel Pty Ltd and Mohamad Bannout
12	Financial advantage in the form of credit in the sum of $120,000 (Jaguar XF registration CVH82U)	Guilty
13	Financial advantage in the form of credit in the sum of $53,015 (Ducati motorcycle registration BQJ43)	Guilty
14	Financial advantage in the form of credit in the sum of $121,582 (Mercedes Benz C63 AMG registration CIO19E)	Guilty
El-Sayed Transport Pty Ltd and Hassan El Sayed
15	Financial advantage in the form of credit in the sum of $232,145 (Bentley Coupe registration CWK54B)	Guilty
16	Financial advantage in the form of credit in the sum of $100,397 (Jeep Cherokee registration CWZ64E)	Guilty
Global Wealth Strategies Pty Ltd and Ghada Nouh
17	Financial advantage in the form of credit in the sum of $92,819.30 (Jeep Cherokee registration CYB45A)	Guilty
18	Financial advantage in the form of credit in the sum of $300,000 (Porsche registration YDG42C)	Guilty
19	Financial advantage in the form of credit in the sum of $128,900 (Land Rover registration CRT49F)	Guilty
20	Recruit Ghada Nouh to assist in carrying out criminal activity	Guilty
Bookmarks Pty Ltd and Olivia Badal
21	Financial advantage in the form of credit in the sum of $37,500 (Dodge Journey registration CVC86E)	Not guilty by direction
22	Financial advantage in the form of credit in the sum of $37,500 (Dodge Journey registration CVC86F)	Not guilty by direction

7. The facts underlying each of the fraud counts were substantially similar. They involved the submission of false documentation to finance companies for the purchase of luxury motor vehicles between early 2013 and early 2016. In each case, a third party or a company of which the third party was a director lodged an application for finance, which was supported by false documents. The total value of the loans was $2.56 million. The finance companies lost a total of $2.29 million. The Crown case was that it was the applicant who had caused the individual third party to apply for finance for the purchase of the vehicles and that the applicant provided the false financial information which was then submitted to the finance companies in support of the loan application. In relation to counts 1 to 7; 12 to 14 and 15 to 16, the Crown relied on a joint criminal enterprise between the applicant and the individual who had made the loan application.

8. In the case of the transactions in respect of which a recruitment offence was also charged, the Crown case was that the applicant had recruited a person who knew that the transaction was fraudulent. In the other cases, the third party was unwittingly involved and suffered financial consequences.

The grounds of appeal

9. The applicant seeks leave to appeal against his convictions on the following grounds:

1. On the basis of the grounds of appeal, the trial miscarried.

2. The trial judge erred by not vacating the trial, not granting a reasonable adjournment and thereby forcing the appellant to represent himself.

3. The trial judge “[c]ondoned and shielded s 128 [of the Evidence Act] certificate perjurers.”

4. The trial judge erred by not directing a verdict of not guilty on count 6.

5. The Crown withheld evidence and failed to produce material witnesses.

6. The trial judge erred by admitting Exhibits M, N and X into evidence.

7. The trial judge erred by admitting bank statements into evidence.

8. The trial judge erred by not allowing the defence to lead evidence of Mahdine Obeid’s conviction for grievous bodily harm.

9. The verdicts of conviction on counts 1, 2, 3, 4, 5 and 7 were “unsafe, unreasonable and inconsistent.”

10. The verdicts of conviction on counts 8 and 9 were “unsafe, unreasonable and inconsistent.”

11. The verdicts of conviction on counts 10 and 11 were “unsafe, unreasonable and inconsistent.”

12. The verdicts of conviction on counts 12, 13 and 14 were “unsafe, unreasonable and inconsistent.”

13. The verdicts of conviction on counts 15 and 16 were “unsafe, unreasonable and inconsistent.”

14. The verdicts of conviction on counts 17, 18, 19 and 20 were unsafe, unreasonable and inconsistent.”

15. “Justice was rushed and tampered with.”

16. “The jury was deliberating for [a] very short unreasonable period.”

The trial

10. The breadth of the grounds of appeal makes it necessary to summarise the progress of the trial at the outset before turning to the individual grounds. Because of ground 2, a distinction will be drawn between the evidence which was given while the applicant was represented and evidence adduced when he was representing himself. This will result in evidence of some counts being referred to before the withdrawal of representation as well as afterwards.

The conduct of the trial while the applicant was represented

11. Until the morning of the seventh day of the trial, the applicant was represented by Mr Green of counsel, and Mr Candelori, solicitor. It is convenient to summarise the evidence given during the period of the trial when the applicant had representation.

12. As referred to above, the Crown tendered a statement of agreed facts pursuant to s 191 of the Evidence Act which set out the facts relating to the finance applications, their approval, the repayments made and what happened to the vehicles which had been purchased. The applicant did not dispute that the documentation submitted in support of the finance applications was false, but denied that he was involved in the submission of the false documents or aware of their falsity. The applicant challenged the credibility and reliability of the individual witnesses involved in the finance applications.

The evidence relating to counts 1 to 7

The evidence of Mahdine Obeid

13. The Crown called Mr Obeid, who, together with the applicant, applied for loans for Precious Metals and Gems Pty Ltd (Precious Metals), which were the subject of counts 1 to 7. Mr Obeid gave evidence that he had pleaded guilty to offences arising out of the conduct which was the subject of counts 1 to 6 and been sentenced in the Local Court to an aggregate sentence of 2 years’ imprisonment and a non-parole period of 14 months (which was reduced on appeal to 12 months). He received a discount of 15% for his plea of guilty and a 25% discount for past and future assistance.

14. He gave evidence that the applicant approached him and asked him whether he was interested in buying a business to import precious gems operated by Precious Metals. The applicant proposed that Mr Obeid would be the director and financier of the business and that the applicant would take care of paperwork and make contact with potential customers. Mr Obeid said that, ultimately, they agreed that Mr Obeid would provide the funds for the business and the applicant would do the work and make contacts and that they would divide any profits equally. In June 2013, Mr Obeid was appointed director of Precious Metals.

15. Mr Obeid gave evidence that in June 2013 the applicant suggested that they buy luxury cars to promote Precious Metals’ image. They agreed to buy two 2013 model Audi Q7 motor vehicles. Mr Obeid said that he accompanied the applicant to the Audi dealership and that, on that occasion, the applicant had made statements to those present about the profitability of Precious Metals and how “exclusive it is”. According to Mr Obeid, the applicant prepared all the financial information submitted to the finance company, which Mr Obeid signed as he was the director. At that time, the company had no business and no staff other than the applicant and Mr Obeid. To Mr Obeid’s knowledge, this remained the case.

16. The agreed facts included that applications for finance were submitted to Volkswagen Financial Services Pty Limited; the applications were approved; a contract was entered into for each vehicle (counts 1 and 2), of which Mr Obeid was the guarantor; the total amount of credit obtained was $124,589 for each contract (see the table above); and payments totalling $25,361.44 were made. The vehicles were repossessed and sold at auction.

17. At the applicant’s suggestion, Mr Obeid went to see Nizar Irani, a tax accountant in Rockdale, after the first two cars had been acquired. In July 2013, the applicant contacted a real estate agent with a view to renting premises from which Precious Metals would conduct its business. Subsequently, they decided to acquire two more vehicles from the same Audi Centre, a black Audi A8 (count 4) and a charcoal-coloured Audi Q7 (count 3). On or shortly prior to 30 August 2013, an application for further finance was submitted to Volkswagen Financial Services Pty Limited for the purchase of these two vehicles. According to Mr Obeid, the applicant told him that these vehicles were more prestigious, and would reflect more highly on the (non-existent) business than the ones they had already purchased.

18. In September 2013 the company entered into a 12-month lease of a warehouse in Unanderra near Wollongong, from which the business would be conducted. The total rent was paid in advance by Mr Obeid.

19. The agreed facts recorded that a fifth vehicle, an Audi A1, was purchased. According to Mr Obeid, the applicant proceeded to acquire this vehicle for his daughter without consulting Mr Obeid (count 5). The applicant submitted all the paperwork and prepared everything for the acquisition of this vehicle and Mr Obeid “pretty much went to the Audi Centre City and I just signed off on it.” Mr Obeid had seen the applicant’s daughter driving the Audi A1.

20. Mr Obeid said that when the Audi A1 was acquired, he was using the charcoal-coloured Audi Q7, the applicant was using the Audi A8, and the first two Audi Q7 vehicles were in the warehouse at Unanderra or being lent to the applicant’s friends and contacts.

21. The final vehicle acquired was an Audi SQ5 which was custom made in Germany. Once again, the applicant prepared the documents which were submitted in support of the application and Mr Obeid signed the application.

22. In about mid-2014, there was a falling out between Mr Obeid and the applicant as a result of which Mr Obeid stopped making payments for the five vehicles. The applicant threatened him. Mr Obeid eventually closed the warehouse down and the vehicles were repossessed.

23. Before Mr Obeid was cross-examined, her Honour granted a certificate to him pursuant to s 128 of the Evidence Act on the basis that Mr Green had indicated that he proposed to ask him questions, the answers to which might incriminate him in the commission of criminal offences. Mr Green did not oppose the grant of such a certificate. In the course of his cross-examination of Mr Obeid, Mr Green put that he was lying in respect of some aspects of his evidence, which he denied.

Counts 10 and 11

Evidence of Mohamad Younes

24. In 2016, Mohamad Younes was working as a furniture removalist through a company, MKY Enterprises Pty Ltd (MKY), that had been operating since 2002. Having met the applicant at a party, he went to the applicant’s home in Condell Park with a friend and observed a black Audi A8 motor vehicle. The two became friends. The applicant suggested that they go into business with each other. Mr Younes objected on the grounds that he did not have any money. The applicant obtained a photocopy of Mr Younes’ driver’s licence, with his consent.

25. The applicant arranged for Mr Younes to test drive an Audi R8 motor vehicle. The applicant told Mr Younes that he would provide the paperwork and obtain approval for a loan for a car for Mr Younes. Mr Younes said that he could not get a loan in his name because his income as declared on his tax return was too low. Ultimately, the applicant told Mr Younes that the loan would have to be in Mr Younes’ name and explained that the men who were involved were dangerous. Mr Younes went along with the plan because he thought that there was no prospect that the loan would be approved.

26. On 24 April 2014, Mr Younes and the applicant went to the Audi dealership at Zetland, where Mr Younes signed some documents which were already there when he arrived, including a loan application, a guarantee of the loan and an authority to deduct payments from his bank account. He did not read the documents which he signed as he was unable to read them. He did, however, appreciate that he had signed a guarantee and knew what he was signing, although he did not realise that the documents which had been provided in support of the loan application were false. Shortly afterwards, the applicant told Mr Younes that his loan application for an Audi R8 had been approved. The application was made in the name of MKY. Mr Younes never saw the Audi R8 which was acquired as a result of the approval of the loan.

27. In May 2014, the first loan payment was deducted from Mr Younes’ bank account. Another was deducted the following month. Although Mr Younes tried to contact the applicant, he did not return his calls. Mr Younes received infringement notices which imposed fines in relation to the Audi A8. Mr Younes communicated by text with the applicant and said that he would go to the police and report that the car was stolen.

28. Mr Younes was shown the loan documentation which had been seized from the applicant’s premises. He confirmed that the amounts in MKY’s tax returns were false and that he had never seen the documents before. When asked about the declaration by a tax agent on the tax return, he confirmed that he did not know the tax agent and had never heard of her.

Evidence of counts 12-14

29. At some time in 2014, the applicant contacted Mr Irani and arranged to introduce Mohamad Bannout, whom he identified as a client. After the applicant left, Mr Bannout explained that he ran a personnel company, Consec Personnel Pty Ltd (Consec). Mr Bannout provided Mr Irani with documents and asked him to prepare tax returns and financial statements which Mr Irani subsequently provided in draft both in hard copy form and electronically to Mr Bannout and the applicant.

The evidence of Nizar Irani

30. Nizar Irani was an accountant who practised in Rockdale who had known the applicant for about a decade. The applicant referred Mr Bannout and Mr Obeid to him. Mr Irani saw Mr Obeid in about August 2013 and subsequently for the purpose of preparing his personal tax returns and the returns for Precious Metals. On the basis of the material which Mr Obeid had provided to him, Precious Metals appeared to be extremely profitable. Mr Irani regarded the figures as inconsistent with the circumstance that he had not been provided with any Business Activity Statements. He prepared draft documents for Mr Obeid based on the material which he had been given and sought further information and documents from Mr Obeid.

Evidence of Senior Constable Hakan Gulsoy (relevant to all counts)

31. Senior Constable Hakan Gulsoy, who was the officer in charge of the investigation, gave evidence in chief throughout the trial and was cross-examined by the applicant shortly before the close of the Crown case. He gave evidence of the search conducted pursuant to a warrant on 21 April 2016 of the applicant’s home and the items, including documents which were seized as exhibits. Three folders of documents, including loan documentation lodged with various finance companies (relevant to the counts on the indictment) were tendered.

Evidence of counts 17-20

Evidence of Ghada Nouh

32. Ghada Nouh, who has two children, separated from her husband in 2013. In 2015 she trained as a beauty therapist and finished the course in May 2016. In August or September 2015, she bought an airline ticket to travel to the United States of America (USA) with friends. She wanted a credit card as she needed extra money for the trip, but was then on Centrelink benefits and had previously been bankrupt. She was introduced to the applicant, who was identified as someone who could help her obtain a credit card. The introduction occurred in a café in Bankstown. Mr Bannout, whom she had not met before, was also present. She provided her telephone number, and allowed photographs of her Medicare card and her driver’s licence to be taken. The applicant arranged for Ms Nouh to attend a bank the following day to obtain a credit card.

33. The applicant collected Ms Nouh the following morning to take her to the bank. They had breakfast at together. During breakfast, the applicant suggested that she work for him in his excavation business. He told her that she would be a director of the company and meet wealthy people. Later, he told her that he had checked and that she was no longer bankrupt but that she needed a car and a good credit rating and that he would help her obtain finance of about $350,000 for a car. Ms Nouh was sceptical since she did not think that this was possible given that she was on Centrelink payments.

34. Subsequently, the applicant took Ms Nouh to Autoline Cars on Parramatta Road. Before any transaction was concluded, Ms Nouh had to leave to pick up her children. When she returned, she signed some papers which were on the desk at the dealership when she arrived. She did not read the documents before signing them.

35. Ms Nouh was away in the USA from 4 to 24 September 2015. She attempted to contact the applicant while she was away because she was running short of funds. On her return to Australia she learned that she was required to return to the dealership to re-sign documents as the licence she had originally provided had expired and she needed to produce her current licence.

36. Some time after she signed the documents, Ms Nouh received $5,000 in cash from Mr Bannout, who told her, “This is from Raymond [the applicant].” At that time, Ms Nouh was happy since she did not realise that she had signed false documents and believed that the applicant would employ her in his excavation business. She used the cash to pay bills and to buy presents for her children.

37. Subsequently, the applicant arranged for Ms Nouh to sign documents which would have the effect of making her a director of a company, Global Wealth Strategies Pty Ltd (GWS).

38. It was an agreed fact that Ms Nouh and GWS agreed to borrow money for a 2014 model Jeep from the Australian and New Zealand Banking Group trading as Esanda (Esanda), and a 2015 model Porsche and a 2013 model Land Rover from BMW Australia Finance Limited trading as Alphera Financial Services. It was agreed that the documents submitted in support of the loans were false. These documents included payslips which indicated, falsely, that Ms Nouh was employed by a company called Excavation and Building Solutions Pty Ltd; documents suggesting that she had an email address which she had never had; documents which recorded that GWS had a business address at Chullora, where she had never been; and a PAYG statement which recorded that she had an annual salary from Excavation and Building Solutions Pty Ltd of $127,000.

39. Ms Nouh did not ever see any of the three cars. She received notices of fines imposed in relation to the driving of the Jeep. She contacted the applicant to ask him for the name of the driver as she was losing points from her own licence. He provided her with a name and licence which she sent to the State Debt Recovery Office, which notified her that the details were false. She lost so many points that she approached the applicant for help as she needed her driver’s licence to take her children to school.

40. Ms Nouh met the applicant on further occasions. On one such occasion, he asked her to delete his phone numbers and those associated with Mr Bannout from her phone and checked that she had done so. He also asked her to go overseas.

41. Before Ms Nouh was cross-examined, the applicant dismissed his counsel and solicitor in circumstances set out below.

The applicant’s dismissal of Mr Green and his applications to adjourn and vacate the trial

42. The applicant was represented by counsel, Mr Green, and a solicitor until the morning of the seventh day of the trial, 26 September 2019, when he withdrew his instructions from his counsel. Mr Green, who informed her Honour that he was appearing at that stage as amicus curiae, asked if the matter could stand over until the following morning. The Crown did not oppose an adjournment of that length. Her Honour asked the jury to return and told them that a matter had arisen which meant that the trial could not proceed that day. In the absence of the jury, her Honour informed the applicant that Mr Green was doing a “very good job” for him.

43. When the matter resumed on Friday 27 September 2019, Mr Candelori (who was still instructed by the applicant) sought an adjournment until the following Monday 30 September 2019. The Crown indicated that it did not object to an adjournment on the basis that the trial would continue on the following Monday. Mr Candelori sought a recommendation that transcript be provided so that, if new counsel was briefed, he or she could read the transcript of the trial to date. The Crown indicated that it would arrange for transcript to be provided. When the trial judge asked Mr Candelori what he wanted her to tell the jury, he asked her to “keep it neutral at this stage”. The trial judge informed the jury that the issue that arose the previous day was “ongoing”.

44. On Monday 30 September 2019, Mr Candelori informed the Court that the applicant had been unable to brief new counsel at short notice. He applied to vacate the trial. Her Honour asked Mr Candelori what he proposed to do if the application were refused, to which he responded that his instructions were to withdraw. Her Honour also asked if Mr Green could be approached to come back into the matter, to which Mr Candelori responded that the applicant did not want to reinstate Mr Green. The Crown opposed the vacation of the trial. Mr Candelori listed the counsel who had been approached since the applicant had withdrawn instructions from Mr Green. He also confirmed that Mr Green was willing to return to the trial but that the applicant did not want Mr Green to appear for him. Mr Candelori informed the court that it was the applicant’s choice to dismiss his counsel. When her Honour said that Mr Green “seemed to be doing a very able job”, Mr Candelori responded, “But I can’t take it any further than that.”

The trial judge’s refusal to vacate the trial

45. At the conclusion of oral argument on 30 September 2019, her Honour delivered a judgment ex tempore, refusing the application to vacate the trial. Her Honour set out the events summarised above. She noted that the issues in the trial were not “overly complicated” as they related to whether the applicant was criminally involved, but not whether the transactions were fraudulent. Her Honour noted that Mr Obeid and Mr Younes had already given evidence and been cross-examined by Mr Green and that only Ms Nouh remained to be cross-examined. Her Honour found that, although English is not the applicant’s first language, he had been able to instruct counsel throughout the trial and participate in a lengthy recorded interview with police. Her Honour noted that the applicant’s health issues compromised his ability to stand for long periods and proposed that he be permitted to sit. Her Honour said, in conclusion, that a “great deal of cost” had been expended in running the trial over two weeks and that she did not consider it to be either unreasonable or unfair to refuse the application. Her Honour’s refusal to adjourn the trial is the subject of ground 2.

Evidence adduced while the applicant was representing himself

Further evidence of counts 1-7

46. The Crown tendered a statement of Stuart Colley, who worked at the Audi Centre, Sydney, and signed documents relating to the loans the subject of counts 1, 2 and 10. Mr Colley identified his signature on various documents and described his usual practice. He did not have any independent recollection of the transactions.

47. The Crown also tendered a statement of Benjamin Woods, who also worked at the Audi Centre, Sydney, and signed documents relating to the loans the subject of counts 3 and 4. He identified his signature on various documents and described his usual practice. He did not have any independent recollection of the transactions.

48. Senior Constable Gulsoy gave evidence that the following items were found in the course of the search of the applicant’s home which were germane to counts 1-7: a copy of Mr Obeid’s Australian passport and NSW driver’s licence; images of five Audi motor vehicles inside a warehouse; a Business Activity Statement for Precious Metals dated June 2013; and a rental application in the applicant’s name for premises at Chipping Norton, signed on 8 June 2014, in which his occupation was described as Financial Controller employed by Precious Metals with an income of $145,600. The rental application listed the Audi vehicle (which is the subject of count 4), as his vehicle.

49. The applicant sought leave for Mr Obeid to be recalled so that he could cross-examine him further. There was a discussion about the topics which the applicant was permitted to canvas in the further cross-examination. On 9 October 2019 (day 14 of the trial), Mr Obeid was recalled and cross-examined by the applicant. Among the topics covered in cross-examination were the different names which Mr Obeid used (which included being called “Mick” instead of Mahdine or Mahidine or Mahedine). Her Honour rejected some of the questions asked of Mr Obeid by the applicant on the basis of form but the cross-examination otherwise progressed in an unremarkable way.

Evidence of counts 8 and 9

50. The agreed facts in relation to counts 8 and 9 were that Afaf Yassin applied for finance from Capital Finance Australia Limited, now St George Finance Limited (Capital Finance) in respect of a Mercedes Benz E63. The application was approved and a contract was entered into on 31 March 2014. False documents relating to Impact Quality Flooring Pty Ltd were submitted in support of the application. In reliance on these false documents Capital Finance advanced the funds for the acquisition of the motor vehicle.

The evidence of David Wilson

51. Between 2002 and 2016, David Wilson worked in the collections department of Capital Finance. As such, he was responsible for contacting defaulting customers. He located a phone number associated with the loans from Capital Finance and called the number. A person who identified himself as “Raymond Carmody” advised Mr Wilson that he was assisting a customer with a motor vehicle and asked if the loan was in arrears. Mr Wilson refused to discuss the details of the loan with “Mr Carmody” in the absence of an authority from Ms Yassin. Within a week of this conversation, Mr Wilson received a letter of authority signed by Ms Yassin authorising Mr Wilson to speak to the applicant. The applicant told Mr Wilson that he was helping Ms Yassin’s husband and that the car was with “Nick”, who was a “boyfriend” (of Ms Yassin) who lived in Victoria. Mr Wilson asked the applicant whether Ms Yassin was employed by Impact Quality Flooring Pty Ltd. The applicant confirmed that she was.

52. In a subsequent conversation, the applicant told Mr Wilson that the car had been reregistered in Victoria in the name of “Michael Rivkin” and that he would endeavour to ascertain the location of the vehicle. Subsequently, the applicant sent a text message to Mr Wilson with the (alleged) new registration number of the vehicle.

Further evidence in support of counts 8 and 9

53. One of the documents used in support of the loan application by Ms Yassin was a 2012 company tax return for Impact Quality Flooring Pty Ltd, which recorded Rimon Philipos as the tax agent. Senior Constable Gulsoy obtained a statement from Mr Philipos (which was tendered) in which he said that he had seen Ms Yassin on 17 July 2013, at which time he had applied for an Australian Business Number (ABN) for her and prepared profit and loss statements for Centrelink purposes. He had not otherwise done any work for her and had never heard of Impact Quality Flooring Pty Ltd. He was shown the tax returns in which he was identified as a tax agent and confirmed that the documents did not accord with the way he prepares such documents and that the phone number indicated was not his.

54. Senior Constable Gulsoy also took statements from Tanja Atelj dated 2 May 2016 and 23 January 2017, which were tendered in the Crown case and marked Exhibits M and N respectively (the subject of ground 6, addressed below). In the statements Ms Atelj said that she worked as a Group Business Manager with the City Motors Group. She caused Ms Yassin’s application for a Mercedes Benz to be processed and sent to Capital Finance. Once the loan was approved, the vehicle was collected by the applicant. Ms Yassin had emailed City Motors Group with a signed authority which authorised the applicant to collect the vehicle on her behalf. The applicant provided his driver’s licence to City Motors Group to establish his identity.

55. Senior Constable Gulsoy also took a statement from Gemma Murray dated 7 March 2017, which was tendered in the Crown case and marked Exhibit X (the subject of ground 6, which is addressed below). Ms Murray was working at Mercedes Benz as a Business Manager. She was working from premises in Wollongong. Her statement included the following:

“5.   Sometime around the 28^th of March 2014 a contract of sale was signed with reference of Afaf Yassin. On the day the contract of sale was signed and also on the day the finance application was signed Afaf Yassin was with a gentleman [named] Raymond. Raymond was an older gentleman and he dressed well, he was softly spoken but he knew what he wanted. Afaf pretty much just sat. Afaf answered my questions but Raymond also helped her speak.

6.    Raymond told me that he did something to do with gems and emeralds like jewellery and gems. I saw gems and emerald or something like that on his business card, he did not tell me this directly from memory, I can’t recall directly.

7.   Throughout the sales process Raymond contacted the dealership about delivery of the car. Delivery of the car was scheduled sometime around the 31^st of March 2014. Raymond arrived at the dealership to take delivery. He was accompanied by two other men in a black Audi with heavy tints. At that time we needed authorisation from Afaf which we received in a letter via email. After Afaf gave approval the car was delivered by sales staff.”

56. Senior Constable Gulsoy identified the Mercedes Benz which was the subject of count 8 and established that it was being used by Ahmed Zaoud, who was living in Guildford and who was well known to police. He learned that the registration of the vehicle was changed to a Victorian address but the registered owner of the vehicle did not exist at the registered address. Ms Yassin reported the vehicle as stolen. It has not been recovered.

57. In the course of his evidence in chief Senior Constable Gulsoy read out his statement concerning the Mercedes Benz, which was the subject of count 8:

“In February 2015, I was the officer in charge for a controlled operation being conducted in the Auburn area in relation to the supply of prohibited drugs. As a result of this investigation, we had identified a white Mercedes sedan bearing the driving plates ACA215, as a vehicle of interest for the investigation. We established that the vehicle was being used by Ahmed Zaoud, who was residing at the address [in] Guildford.

Zaoud is well-known to New South Wales police force. I contacted Victoria police in relation to the vehicle and its registered owner. I was contacted by Victoria police and given certain information..(not transcribable)..this information was that this vehicle was wanted for repossession by Capital Finance in Sydney, and that I should contact David Wilson from Capital Finance to obtain more information. I contacted David Wilson and met him in the Capital Finance offices.

The registration was later changed over to its car in Victorian registration of ACA215..(not transcribable)..number of the vehicle remained as - as the original VIN number.

Furthermore, [the Mercedes] was reported stolen by Afaf Yassin. This alleged stealing occurred about 8.40pm on 20 August 2014 from the vicinity of the intersection of Sydney Road and Albion Street, Brunswick, in Victoria.

According to Yassin, she stepped out of the vehicle to speak to some friends, leaving the keys in the car. A short time later, she turned around to find the vehicle was no longer at the location. This vehicle is still reported stolen in New South Wales and Victoria has not been recovered. There are no warnings in relation to the vehicle if it has been driven in other states, which is likely to be the case.”

58. The Crown also tendered a statutory declaration made by Ms Yassin on 7 August 2014 in which she stated:

“I was in a relationship with Michael Rivkin for over three years. We purchased a 2014 Mercedes E63 AMG … We have no[w] separated and we have both agreed Michael Rivkin will keep possession of the vehicle and will reside in Melbourne Victoria.”

59. Text messages between the applicant and Ms Yassin (which were extracted from her phone) were also tendered by the Crown and marked Exhibit AF. They were sent between September 2014 and October 2014. Ms Yassin repeatedly asked him to call her because she received fines and toll notices for the Mercedes which was not in her possession and had also been contacted by Capital Finance. The final two text messages were as follows:

21 October 2014

W[h]ere is the car the[y’]re chasing me for the car [a]nd taking me to court

plz help me I’ve never seen the car w[h]ere is the car u said it’s been handed in y rnt u answering me

20 November 2014

Y rnt u calling me ba[c]k wat have I done to u!!! I keep receiving fines [a]nd now the[y’]re taking me to court for all the fines from [the Mercedes] e63 plz call me

60. Senior Constable Gulsoy gave evidence that the following items were found in the course of the search of the applicant’s home which were germane to counts 8 and 9: Victorian toll notices between 7 May 2014 and 30 May 2014 in relation to the Mercedes E63 in the name of Afaf Yassin; an image of a letter addressed to Ms Yassin from CityLink Melbourne Limited in relation to unpaid toll notices for the Mercedes E63; and a dealer certificate of the Mercedes E63 in the name of Ms Yassin.

61. Senior Constable Gulsoy gave evidence that Ms Yassin was charged with offences relating to her involvement in the scheme and declined to provide an induced statement. Attempts were subsequently made to locate her but without success. The trial judge explained to the jury that the purpose of the evidence of attempts to locate Ms Yassin was to inform the jury of her unavailability to give evidence.

Further evidence of counts 10 and 11

62. Senior Constable Gulsoy took a statement from Ms Salameh (who had been identified as MKY’s tax agent in its 2012 tax return), which was tendered by the Crown. Ms Salameh confirmed that she had never been a tax agent for MKY, Mr Younes or the applicant.

63. Senior Constable Gulsoy gave evidence that images of the applicant with the Audi R8 (the subject of count 10) were found in the course of the search of the applicant’s home.

Evidence relating to counts 12-14

Evidence of Phillip Gruppelaar

64. In 2014, Phillip Gruppelaar worked as a finance broker in a business known as Harley Finance which operated on Parramatta Road, Concord and also in Kogarah. Next door to Harley Finance’s Parramatta Road premises, Nick Agar of Sports Auto Group, ran a motor vehicle dealership.

65. On 24 October 2014, the applicant and Mr Bannout went to Mr Gruppelaar’s premises on Parramatta Road for the purpose of Mr Bannout signing documents for finance to be provided by ANZ for the purchase of a Ducati motorcycle. The applicant had earlier provided to Mr Gruppelaar the documents in support of the loan application at a time when Mr Bannout was not present. These documents included an annual report for Consec, Consec’s tax return for 2014 and Mr Bannout’s tax return for 2014. These documents identified Mr Irani as the accountant.

66. In cross-examination, the applicant put to Mr Gruppelaar that it was Mr Bannout, and not the applicant, who had provided the documentation in support of the loan applications. Mr Gruppelaar refuted this proposition.

The evidence of Ian Walker

67. Ian Walker was the Group Finance Manager at Fraser Motorcycle Group. He was present when the Ducati motorcycle was delivered. At the time of delivery, Mr Bannout attended, as did an older man whose name was Raymond (the applicant) and two other men. Mr Walker confirmed in cross-examination that Mr Bannout did not have a motorcycle licence but that one of the other three men had such a licence.

The evidence of Robert Bulgin (in support of count 12)

68. In about August 2014, Robert Bulgin worked as a locum finance manager at Suttons Group. On about 10 September 2014, Mr Bannout attended the Concord Land Rover Dealership on Parramatta Road, Concord and allowed his driver’s licence to be photocopied for the purpose of a loan application with respect to a Jaguar motor vehicle (count 12). The photocopy of the licence was then added to the documentation in support of the loan application by Consec.

The evidence of Martin Nixon

69. Martin Nixon worked as a business manager at Fraser Motorcycles. He recalled a deal involving Mr Bannout and a Ducati motorcycle, which was an expensive motorcycle, with extensive accessories. Mr Nixon recalled that four or five men would come to the showroom to discuss the purchase but that there was one man, an older man who was always dressed in business attire, who was always controlling the deal. Mr Nixon identified the applicant as that man.

The evidence of Mr Bannout

70. Mr Bannout was called by the Crown at the request of the applicant, who cross-examined him. Mr Bannout confirmed that he met the applicant a decade before. He told the applicant that he needed an accountant and the applicant referred him to one in Rockdale, who provided him with some financial documents. In September 2014, Mr Bannout obtained a Jaguar XF motor vehicle and in October 2014 he obtained a Mercedes Benz C63 and Ducati motorcycle. He provided the financial documents (which he had received from the accountant) to “Nick [Ajar]” in support of the application. He said that the applicant had not provided him with documents but had provided him with advice. He confirmed that the applicant had had nothing to do with the documents and had simply helped him as a friend.

71. At the end of the applicant’s cross-examination of Mr Bannout, the Crown sought, and was granted, leave to cross-examine him. Mr Bannout confirmed that he had never seen any of the documents that were lodged on his behalf or on behalf of Consec. He could not say whether the applicant had prepared the documents because he had never seen them. Although Mr Bannout could not recall what his income was in 2013-2014, he confirmed that he had never earned anything approximating $453,000, which was the amount in the 2014 tax return submitted in support of the loan applications. He confirmed that he took some documents to the accountant in Rockdale and said that he had obtained the documents from “Nick” rather than the applicant.

Other evidence in support of counts 12, 13 and 14

72. It was an agreed fact that the supporting documentation was false in a number of important respects. Three loans (the subject of counts 12, 13 and 14) for a Jaguar motor vehicle, a Ducati motorcycle and a Mercedes Benz C63 AMG were approved on the basis of the false documentation.

Items found in search of applicant’s premises relating to count 12

73. Senior Constable Gulsoy gave evidence that the following items were found in the course of the search of the applicant’s home which were germane to count 12: an image of the Jaguar XF parked in the driveway of the applicant’s residence at Chipping Norton; an image of Compulsory Third Party insurance for the Jaguar XF dated 22 October 2015 with insurer QBE; an image of the identification panel of the Jaguar XF; Capital Finance loan documents relating to the Jaguar XF; a dealer certificate in the name of Consec with registered address in Bankstown dated 12 September 2014 for the Jaguar XF; a customer copy of the loan application relating to the Jaguar XF; insurance documents relating to the Jaguar XF; a customer copy of the dealership documents for the Jaguar XF; the original receipt and EFTPOS slip of the deposit payment paid on collection of the Jaguar XF; and insurance documents relating to the Jaguar XF.

Items found in search of applicant’s premises relating to count 13

74. Senior Constable Gulsoy gave evidence that the following items were found in the course of the search of the applicant’s home which were germane to count 13: ANZ loan documents and a repayments schedule for the Ducati motorcycle for monthly repayments of $1,130.75; a registration notice for the Ducati motorcycle in the name of Mr Bannout, dated 27 October 2014; ANZ loan documents for the Ducati motorcycle; and a customer copy of the dealership contract for the Ducati motorcycle.

Items found in search of applicant’s premises relating to count 14

75. Senior Constable Gulsoy gave evidence that an ANZ loan document relating to the black Mercedes Benz C63 AMG monthly repayments of $2,246.00 was found in the course of the search of the applicant’s home. The document was germane to count 14.

Items found in search of applicant’s premises relating to counts 12-14 generally

76. Senior Constable Gulsoy gave evidence that the following items were found in the course of the search of the applicant’s home which were germane to counts 13-14 generally: Consec printouts; a depreciation worksheet for Consec for 2014 relating to excavators; payslips in the name of Mr Bannout; and a tax document marked in red pen.

Evidence of counts 15 and 16

77. As with the other transactions, the agreed facts established the details of the transactions the subject of the counts.

78. The agreed facts included that in January 2015 an application for finance was submitted to Esanda for the acquisition of a Jeep Grand Cherokee. On 13 January 2015, an application for finance was submitted to BMW Australia Finance Limited trading as Alphera Financial Services for the purchase of a 2009 Bentley Coupe. The documents submitted in support of these applications, which included company tax returns, were false. In reliance on the false documentation, the application was approved, the transaction documents were executed, the finance advanced and the motor vehicles provided. The borrower was El Sayed Transport Pty Ltd (El Sayed Transport) and the guarantor was its principal, Hassan El Sayed.

79. The uncontroverted statement of Steven O’Neill, who worked full-time at the Chrysler Jeep showroom, was that Mr El Sayed had collected the Jeep Cherokee on 14 January 2014. The statement was tendered by the Crown, admitted into evidence and marked Exhibit S. It was the subject of a question from the jury (referred to below).

80. On 31 August 2016, the police obtained a statement of Bachar Jilany who had been named in El Sayed Transport’s company tax return as its tax agent. He confirmed that he had never prepared any paperwork for El Sayed Transport or Mr El Sayed. This statement was tendered in the Crown case.

Mr Ajar’s evidence

81. Mr Ajar had no recollection of the transaction involving the Mercedes C63. However, he confirmed that it was likely that Mr El Sayed attended his dealership and arranged to purchase the Mercedes C63. He said that, as the sale documents were signed when the vehicle was collected, it was likely that Mr Bannout collected the vehicle.

Mr Bannout’s evidence

82. Mr Bannout said that he and Mr El Sayed used to be good friends. He introduced Mr El Sayed to “Nick” [Ajar] and the applicant.

Items found in the search of the applicant’s home relating to counts 15-16

83. Senior Constable Gulsoy gave evidence that the following items were found in the course of the search of the applicant’s home which were germane to counts 15-16: Mr El Sayed’s 2014 tax return; 2014 financial statements for El Sayed Transport; 2014 Company tax return for El Sayed Transport; a depreciation worksheet for El Sayed Transport excavators; a photo of the applicant sitting in the driver’s seat of the black Bentley; a photo of the Bentley parked in the driveway of the applicant’s residence with his wife standing near the front passenger door; Mr El Sayed’s identification documents used in the loan applications; a copy of a dealer certificate for the Bentley under the name of DBN Holdings; a blank Harley Finance document signed by Mr El Sayed; an image of Mr El Sayed’s driver’s licence; Esanda contract and insurance documents relating to the Jeep (count 16); Alphera insurance documents of the Bentley (count 15); 2014 company tax returns for El Sayed Transport; a penalty notice for the Jeep (count 16); Part A of a Roads and Maritime Services disposal slip of the Jeep (count 16) with sale date of 23 June 2015; St George statement of an account in the name of the applicant’s wife, Ilham Carnaby, and an account in the name of Mr El Sayed; and copies of Mr El Sayed’s identification documents.

84. Senior Constable Gulsoy gave evidence that Mr El Sayed was charged with offences relating to his involvement in the scheme and did not give a statement to police. He gave evidence that attempts were subsequently made to locate him but without success. The trial judge explained to the jury that the purpose of the evidence of attempts to locate Mr El Sayed was to inform the jury of his unavailability to give evidence.

Continuation of the evidence relating to counts 17-20

The balance of the evidence of Ms Nouh

85. As the applicant was self-represented, he cross-examined Ms Nouh. Ms Nouh accepted that she had signed documentation to become a director of GWS because the applicant had asked her to. Ms Nouh said that she agreed to become a director because she was silly and naïve. She said that she was not a director of GWS when she signed the transaction documents at the dealership but that the documents appointing her as a director had been back-dated. Ms Nouh accepted that money had been deposited into her account which had been debited for payment of the motor vehicles. She also agreed that she had been given a total of $15,000 by the applicant.

86. Ms Nouh confirmed that she was told the following before being interviewed by police:

“I told you at the start of this interview that nothing you say and no information you give in this interview will be used in any criminal proceedings against you in any court in New South Wales, except in certain circumstances. I told you this inducement operated for the purposes of this interview only. For the purpose of that inducement, this statement is now complete. Anything you say to Constable Hakan Gulsoy or any other police office from now can be used in evidence against you without restriction.”

Other evidence in support of counts 17-20

87. The Crown tendered a statement of Manmohit Pahul Singh Rangpuri dated 24 November 2016 in which he said that in 2013 or 2014 he purchased GWS from Adam Abdo and sold it to Ms Nouh through Mr Agar’s “business broker”, whose name was “Raymond” (the applicant), whom he had never met or spoken to on the phone.

Evidence of Jamie Candy

88. Jamie Candy gave evidence that, in late 2015, his wallet was stolen from his work truck while he was away from his truck for about five minutes. It contained his Medicare card, a Commonwealth Bank card and his driver’s licence. When Mr Candy called the bank to report the theft, the bank cancelled the card as it was being used. About a fortnight later, he received an infringement notice for driving through a red light and a parking fine from the State Debt Recovery Office. The notices correctly recorded his address and referred to (as he subsequently learned) a black Jeep (the subject of count 17) which he did not own and had not driven. A month or two later, he received a letter from Esanda declining a loan for $98,000 for which he had not applied.

89. Mr Candy reported the matter to the State Debt Recovery Office which recommended that he report the matter to the Australian Federal Police. He was subsequently referred to Senior Constable Gulsoy and interviewed in July 2016. He confirmed that he had never met either the applicant or Ms Nouh. He was shown photographs of his licence, Medicare card and Commonwealth Bank card and identified them as copies of items which had been in his wallet when it was stolen.

Evidence of Mr Bannout

90. Mr Bannout drove the Porsche which Ms Nouh had acquired as well as the Land Rover. He said that she was with him when he went to collect the cars, but he drove them. He said he paid her for using the cars but could not remember the amount. He could not recall whether, when he gave her the money he said, “This is from Raymond.” He remembered going to the applicant about a traffic infringement notice regarding a car that belonged to Ms Nouh but he could not remember what transpired.

Further evidence of Senior Constable Gulsoy (relevant to counts 17-20)

91. The documents which were found at the applicant’s home when the search warrant was executed by police on 21 April 2016 included Ms Nouh’s identification documents and documents relating to GWS as well as the following: a Vodafone account in the name of GWS; an ANZ Loan contract in relation to the Jeep (count 17); a penalty notice from the State Debt Recovery Office for the Jeep (count 17); ASIC company records for GWS; overdue ASIC payments for GWS; toll notices for travel on the M5 for the Jeep (count 17); Ms Nouh’s NSW driver’s licence and Medicare card; a business card in the name of GWS; and a Vodafone account for 20 mobile numbers.

Evidence relating to counts 21 and 22

92. The agreed facts in relation to counts 21 and 22 recorded that on 28 August 2014 applications for credit were submitted to Nissan Financial Services Australia Pty Limited for the purchase of two 2014 model Dodge Journey motor vehicles; the applications were approved; a contract was entered into for each vehicle, of which Olivia Badal was the guarantor; and the total amount of credit obtained was $37,500 for each contract (see the table above). It was an agreed fact that the financial information contained in documents supporting the credit applications was false.

93. Senior Constable Gulsoy gave evidence that the following items were found in the course of the search of the applicant’s home which were germane to counts 21 and 22: numerous tax returns and annual report documents relating to Bookmarks Pty Limited; scanned copies of identification in the name of Olivia Badal and Romel Badal; ASIC documents relating to Bookmarks Pty Limited; salary details about Bookmarks Pty Limited’s employees; and bank account details relating to Bookmarks Pty Limited.

Evidence of Senior Constable Gulsoy (relevant to all counts)

94. Senior Constable Gulsoy gave evidence of the search conducted pursuant to a warrant on 21 April 2016 of the applicant’s home and the items, including documents which were seized as exhibits. Three folders of documents, including loan documentation lodged with various finance companies (relevant to the counts on the indictment) were tendered.

95. He said that the items found in the search included documentation relating to traffic infringements of vehicles which were the subject of the indictment. Two of the names on the documents were Wornruthi Singkha and Jamie Candy. Various car keys were also located: a key for a Jaguar A8, another Jaguar key and a key to a Jeep.

96. On 5 April 2016, Senior Constable Gulsoy conducted surveillance of the applicant at his home at Chipping Norton. He observed the applicant driving a blue Jaguar sedan with a number plate which had replaced the plate of the vehicle in count 12. Further surveillance was conducted on 12 April 2016. The same blue Jaguar sedan was seen parked in the driveway. A white Dodge vehicle (count 21) was parked in front of the house.

97. Senior Constable Gulsoy gave evidence as to the fate of each of the motor vehicles which were the subject of charges. It is not necessary to summarise this evidence for present purposes as the offence was complete at an earlier stage (when each transaction was entered into).

98. The applicant cross-examined Senior Constable Gulsoy extensively about the investigation of the offences which led to the charges. The cross-examination commenced on the afternoon of 14 October 2019, continued all day on 15 October 2019 and concluded on the morning of 16 October 2019. After briefly re-examining Senior Constable Gulsoy, the Crown closed its case.

The police interview of the applicant

99. The applicant was interviewed by police on 15 September 2016. His Electronically Recorded Interview with Suspected Person (ERISP) was played to the jury and the recording and transcript marked as exhibits.

100. The applicant explained in the ERISP that he was an unpaid investigative journalist and had several phone numbers because he used a different number for each investigation.

Counts 1-7

101. While the applicant was in Wollongong, he had three laptop computers, one of which had been used by Mr Obeid. He told police that Mr Obeid had set up Precious Metals and was its director and that he (the applicant) was employed by another company, Flamark, of which Mr Obeid was also the director. The applicant worked as its marketing and financial controller. According to the applicant, Mr Obeid gave him an Audi A8 (in lieu of any financial payment), which he drove for about a year. Precious Metals had two Audi Q7 3l vehicles, an Audi Q7 4.2l vehicle and an Audi A1 vehicle. Mr Obeid acquired an Audi SQ5 for personal use, a boat and two Ducati motorcycles. Although the applicant accompanied Mr Obeid to dealerships to help him negotiate a price, he had no knowledge of what documentation was supplied. The applicant referred Mr Obeid to Mr Irani. At that time, Precious Metals’ books and records were kept in the warehouse at Unanderra and the applicant had access to them. He agreed that he may have brought some of the records to his house.

Counts 8-9

102. When asked about Impact Quality Flooring Pty Ltd, the applicant told police that he wanted to help a woman called “Afaf” (Ms Yassin), who was separated from her husband, get a car. As she wanted to buy a Mercedes, he took her to the Mercedes dealership in Wollongong. He played no role in filling in the documentation in support of the loan application. He may have collected the vehicle with her permission. He recalled that she had contacted him regarding fines imposed with respect to the motor vehicle and he had advised her that she should go to the police and report the car as being stolen.

Counts 10-11

103. The applicant said that he remembered the Audi which was acquired by MKY, which was a company that “[did] transportation or something like that.” The applicant told police that the owner of the company (Mr Younes) asked the applicant to go with him to the dealership so that the applicant could get a good discount for him as Precious Metals had purchased five or six cars from them. The applicant believed that the Audi R8 had been involved in an accident involving Hassan Hamzy and that Mr Younes was “scared”. He explained that Hassan Hamzy was the brother of Bassam Hamzy, whom he described as “the patriarch of the family” and associated with the Brothers for Life (a notorious Outlaw Motorcycle Gang). When police asked him whether he was “friends with these people”, he responded, “[a]bsolutely.”

104. The police asked him about various phone numbers and names in which the numbers were registered. He identified one such number as being his and said that he had used the name “Michael Jones” for that account. He said he used different names for his work as sometimes his life was under threat. He was asked about texts which Mr Younes had sent to him asking for the car back, to which the applicant responded that Mr Younes’ English was not good.

Counts 12-14

105. The applicant admitted that he knew Consec as a company which Mr Bannout was operating. Although he said that he did not have any involvement with Consec getting motor vehicle loans, he admitted that he did take Mr Bannout to Mr Ajar’s dealership as well as to Fraser Motorcycles in relation to the purchase of a Ducati motorcycle. The applicant denied that any of these vehicles had ended up at his house, in his garage or in his driveway.

106. He explained the Consec business records which had been found at his house (when the search warrant was executed) by saying that he was providing advice to Consec and he kept the company records that Mr Bannout brought to him. He denied sending any financial documentation to finance companies or dealerships on behalf of Mr Bannout.

Counts 15-16

107. The applicant told police that Mr El Sayed was a friend of his. He denied doing any work for El Sayed Transport and also denied that he had anything to do with the paperwork for the acquisition of the Bentley motor vehicle. He said that he drove a Bentley which was a car on loan from Mr Ajar. He told police that he had a habit of scanning documents which he received and keeping them on his computer. He said that he may have received some documents to do with El Sayed Transport and scanned them for future reference.

Counts 17-20

108. The applicant told police that he understood that Ms Nouh needed a company which had records and put her in touch with “Nick [Ajar] at Concord” who arranged for the transfer to her of GWS. He helped her because he liked to help people and understood that she wanted a future for herself away from her ex-husband who was “one of the bad boys”. He agreed that he attended Mr Ajar’s car dealership with her but said that she found the car herself and prepared the application herself. He explained texts which she had sent to him by saying that Ms Nouh had asked him to help her with penalty notices. Although he did not do any work for GWS, he did set up a foreign account and various telephone accounts for the company. He said that he did not know how many cars GWS had but maintained that he had never been in any of them. He said that he had seen someone whom he knew to be called Mohamad driving a Porsche but denied that he had anything to do with its acquisition. Although he initially said that he did not know Mohamad’s last name, later in the interview the applicant admitted that he knew Mohamad’s last name to be Bannout.

109. The applicant admitted that a specified telephone number was one that he sometimes used. He was asked why it would be registered under the name of GWS, he said that it was pre-paid.

110. When police asked the applicant about the print-out of Mr Candy’s driver’s licence and Medicare card that was seized when his home was searched, he said that it was Mr Bannout’s “to name as the driver and to give to [Ms Nouh].” When asked to explain what he meant by this, the applicant changed the version and said that it had been provided to him for the purposes of obtaining a loan from the “National Bank”. The applicant said that Mr Candy’s photo was sent to him on his phone.

111. The police also asked the applicant why he had a printout of an international driver’s licence of Ms Nouh. He suggested that Mr Bannout might have sent it to him and that Ms Nouh might have been driving a car which Mr Bannout owned and needed the information for the purposes of an infringement notice. When asked why he would be privy to this information, the applicant told police that Ms Nouh may have lent Mr Bannout her Porsche and received an infringement notice which she wanted to be dealt with by Mr Bannout and she may have involved the applicant because Mr Bannout may have been in Lebanon and she may have been unable to get in touch with him without the applicant’s assistance. The applicant admitted to police that this was “mere speculation”.

112. The police raised with the applicant that Mr Candy had been nominated as the driver on one of the occasions covered by the infringement notices. The applicant responded that if Mr Candy was nominated (by Mr Bannout) “that means that was sent to [Ms Nouh].”

Counts 21-22

113. The applicant told police that he was involved in car loans to Bookmarks Pty Ltd for the acquisition of a Dodge RT and that the transaction was overseen by Romel Badal. The applicant admitted that he had attended dealerships with Olivia Badal, who was Mr Badal’s wife. The applicant said that he was not involved in the preparation of any of the financial documentation. Mr Badal used his garage as an office after they left Unanderra.

The application for a directed verdict

114. At the close of the Crown case on 16 October 2019, the applicant applied for a directed verdict with respect to (in the following order) counts 21 and 22; counts 8 and 9; and counts 15-17. On the following morning, 17 October 2019, her Honour raised count 6 with the Crown, although it had not been included in the applicant’s no case submission. Ultimately, her Honour was persuaded by the Crown that there was a case to answer in respect of count 6 but she confirmed that she would highlight aspects of Mr Obeid’s evidence which were unsatisfactory in respect of that count.

115. In a separate judgment delivered on 17 October 2019, her Honour directed verdicts of acquittal on counts 21 and 22 only.

The subsequent course of the trial

116. The applicant indicated that he intended to give evidence in his defence. Before the jury was brought back in, her Honour said that she intended to allow the Crown to make a closing address, limited to outlining the Crown case on the specific counts on the indictment, “due to the amount of evidence that is in the trial, the days we have been here, and to ensure that the jury understand what the Crown case is.”

117. The applicant gave brief evidence in chief on 17 October 2019 and was cross-examined on 17 October 2019 from shortly before lunch until the morning of 18 October 2019 before the short adjournment. He closed his case before the morning adjournment.

118. Before the Crown commenced its address, the trial judge explained to the jury what would follow. Her Honour said:

“HER HONOUR: Ladies and gentlemen, I'm going to send you out for morning tea now. What I can just indicate to you, what the next stage of the trial is, that's the evidence in the trial. As I've indicated to you before, there is a transcript that has been ongoing and that is available for you upon your request if you wish to have any or all of that evidence that has been presented in the trial so far. So that is the evidence though in the trial and there will be no more evidence.

So the next part of the trial are closing addresses. First the Crown by tradition gives a closing address and then the defence then give a closing address. In relation to the fact that Mr Carnaby is unrepresented, I have not allowed Mr Crown to give arguments or submissions because it's a general practice if an accused is unrepresented the Crown doesn’t give lengthy closing address in relation to putting arguments and submissions to you.

But because of the number of counts on the indictment and we've had some delays and it's been a little bit disjointed at times in the trial and the evidence has been to basically suit the availability of witnesses, it sort of hasn’t flowed chronologically in relation to the counts on the indictment, what I propose to do, and I've indicated to both parties, is to allow Mr Crown to outline the Crown case to you in relation to each count on the indictment so that you know what evidence in the trial is applicable to the specific counts on the indictment, but he is not allowed to put arguments or submissions to you.

Following that, which we will have a start of that today, but knowing we're only going to 1 o'clock, I don't know how long Mr Crown will be, but he may or may not finish by 1 [o'clock], otherwise he'll finish it off on Monday morning. Following his outline to you about the evidence that the Crown relies upon for each count, I'll then allow Mr Carnaby to address you and he is entitled to give closing address as an argument or submissions based on the evidence and, of course, his submissions and arguments must be based solely on the evidence in this trial.

Following his address, I sum up to you. So he should address at some stage Monday and then whether - depending on how long he takes, whether I start the summing-up Monday or commence it on Tuesday. I'll be some little while. It's not going to be done in a half an hour or an hour, I can assure you …”

119. The Crown commenced its address on 18 October 2019, after the morning adjournment, by saying the following:

“Now ladies and gentlemen, I'm now going to do a closing address which I'm able to tell you is not going to be, hopefully, overly long. I may not finish today but if I don't finish today, I'll hopefully finish fairly early on Monday morning. But I just want to start by, in effect, repeating what her Honour advised you recently, which is that in this closing address, I'm not going to be making any submissions or arguments about the evidence, as to why you should accept this evidence or not that evidence. [In this] particular closing address, my role is limited simply to in effect remind you of the elements of the offences, and more or less just [point] you to the evidence that the Crown relies on in relation to each particular group of counts. So that in general terms is what I'll be doing.”

120. The Court adjourned at lunchtime on Friday 18 October 2019 and resumed on Monday 21 October 2019. The Crown continued its address on 21 October 2019 which it concluded prior to the morning tea adjournment on that day. The Crown in this Court fairly estimated that the Crown address had taken about two and a half hours. The applicant made no complaint in the trial that the Crown had exceeded the limitations imposed by the trial judge.

121. The applicant commenced his closing address after the morning tea adjournment on 21 October 2019 and concluded immediately prior to the luncheon adjournment on 22 October 2019. Her Honour commenced the summing up at 2pm on 22 October 2019. The summing up concluded at 11.26am on 23 October 2019, at which time the jury retired to consider its verdict.

122. The jury was brought back to Court at 2.12pm on 23 October 2019 to permit her Honour to correct a matter concerning tendency and coincidence. This matter was corrected and the jury was sent out again at 2.14pm. Her Honour brought the jury back to Court at 3.52pm to invite them to leave if they wished. Her Honour invited them to resume their deliberations between 9am and 10am the following morning.

123. On Thursday 24 October 2019, the jury sent a note which said as follows:

“Your Honour, can dates listed in exhibit S, please be clarified? That is, for example, the Jeep Cherokee picked up on 24 Jan 2014, as they conflict with all other evidence, including the indictment for count 16, which nominates a between date.”

124. The question was discussed in the absence of the jury. The applicant told her Honour that he did not understand the “legal ramification” of the question. The following exchange ensued:

“HER HONOUR: … They're just going through all the documents and they picked out a discrepancy and they just are seeking clarification of the date. But it would appear, from all the other evidence, when one looks at the application for count 16, that it is 14 January 2015. So when making his statement, he's just put the wrong date down.

ACCUSED: So can I use that to my advantage or can I not?

HER HONOUR: It is what it is. They can look at it and see that Mr O'Neill gave it wrong, but there's no - it's not for you to make a submission on it or anything, it's just to say that Mr O'Neill was wrong. That's all I'll be saying to them.

CROWN PROSECUTOR: It's clearly a typographical error, yes.

HER HONOUR: Yes. Well, whatever, yes, it's wrong. Yes.

…

ACCUSED: Excuse me, your Honour. Mistake - the date was dated wrong by Mr O'Neill, yes. So does that affect his memory?

HER HONOUR: I don't know, it's up to the jury to assess that. It could have been a typographical error, Mr Carnaby.

…”

125. When the jury was brought back in, her Honour said:

“Good morning, ladies and gentlemen. I received your note; I have marked that MFI 34, and I have discussed it with Mr Carnaby and Mr Crown. Obviously, you have more eagle eyes and keener eyes than we have, because we did not pick that up. But clearly, exhibit S, which is the statement of Steven O'Neill refers to events occurring around January of 2014.

But when one looks at the indictment, for example, which for count 16 is between the first day of June 2014 and the 15th day of January 2015, together with the applications which are nominated in exhibit B as being the application for the finance, the date that is specified on exhibit S is out by one year. Whether that be a typographical error or his memory, one does not know, but you can take it that it is meant to be January 2015 and not January 2014. So I hope that clarifies it, but you are clearly going through all the documents and I thank you for that, and I will let you resume your deliberations. Thank you.”

126. This explanation is the subject of ground 15.

127. The jury was sent out at 10.53am. At 2.09pm the jury returned with verdicts of guilty to all remaining charges apart from count 6 where its verdict was not guilty.

The grounds of appeal

128. As is evident from its wording, the first ground does not need to be addressed separately as it is dependent on the remaining grounds.

Ground 2: alleged error in refusing to vacate the trial

129. The applicant alleged that the trial judge erred by not vacating the trial, not granting a reasonable adjournment and thereby forcing the appellant to represent himself. The decision whether to grant an adjournment, including one which will have the effect that an accused is required to represent himself, is a discretionary one, which is to be made by the trial judge, taking into account all relevant factors.

130. It is evident from her Honour’s reasons for refusing the adjournment that her Honour took into account the progress of the trial to that date (which comprised most of the Crown case) and that it was the applicant’s unilateral decision to withdraw his instructions from his counsel which had led to the application for the adjournment and the potential that the applicant would be unrepresented.

131. The applicant argued in this Court that he was justified in dismissing his counsel as his counsel was incompetent. In support of this submission, the applicant took the Court to pages of the transcript which recorded objections made to questions asked by the applicant’s counsel which had been upheld by her Honour and circumstances where his counsel was “corrected” by the trial judge. It is not necessary to set out all the examples relied on by Mr Carnaby. It is sufficient to focus on the applicant’s complaint that his trial counsel had not adequately cross-examined Mr Younes because he had been unable to address her Honour’s concerns. In order to address this matter, it is necessary to review the transcript of Mr Younes’ cross-examination to put the matter in context.

132. Mr Younes gave evidence in chief on 24 September 2019 and was cross-examined on 25 September 2019. In the course of cross-examination of Mr Younes, the following exchanges ensued:

“Q. Now, you gave evidence yesterday that you sent a text message after being asked to do so by Mr Carnaby. Do you recall giving that evidence? I might assist you. It was a text message to do with delivery or pick up of an Audi R8.

CROWN PROSECUTOR: I object, your Honour.

HER HONOUR: No, that wasn't the evidence. That he was on his way to Audi. And he said that he was on his way to Audi and he received a text message from the accused. The evidence has to be correctly put to him, he never said that.

GREEN: Right, I'll start from the beginning, your Honour, because maybe I misheard.

Q. Tell me the circumstances in which you say you received a message from Mr Carnaby about the Audi?

CROWN PROSECUTOR: I object, that wasn't his evidence.

HER HONOUR: No, that wasn't the evidence either.

WITNESS: All right, so you talk—

HER HONOUR: About replying to a text message it was.

WITNESS: So you talk the end, is that what you're saying?

GREEN: Yes.

WITNESS: Okay, in the end, when all the paperwork, everything, the promises, all this, all that, when - after that test driving, after I sign document, all that, he called me sending message. He goes, “I've got to send you a message. Reply back the same message and send it back to me.”

GREEN

Q. Yes. So you received a

A. WITNESS: Hang on. “Hey guys”, I goes, “What's going on?” He goes, “I'll explain later.” So when I did send him a message, I never heard. After a couple of days I call him, I go, “What's going - what's happening?” He goes, “I get the car.” I goes, “How you get the car, you got to get approve?” So this what happened.

Q. Yes. So you received a message from Mr Carnaby, is that right?

A. WITNESS: Yes, yes, yes, I did say yesterday.

GREEN: Is that what I put to the witness?

HER HONOUR: No, you put to him that what was - what you said was contained in the message, it wasn't in evidence.

GREEN: Yes, well we'll get to that.”

133. Later in Mr Younes’ cross-examination, the following exchange ensued:

“Q. What I'm suggesting is this - and I'll put it as a general proposition to you, okay? Perhaps that will help. That the first repayment came out of your account, and you realised how much money it was really going to cost you.

A. Yeah. Yeah. Yeah.

Q. And that you rang Mr Carnaby and said words to the effect of, “The drunken period is now gone. Reality at the door.”

CROWN PROSECUTOR: I object, sorry your Honour. That last question, about how much it was really going to cost you. His evidence was that he wasn't even expecting the money to come out.

HER HONOUR: He wasn't aware. He said that three or four times.

CROWN PROSECUTOR: To the extent that that answer might be seen to be adopting a proposition that he knew it was coming out, I object.

192. In the course of oral argument on the appeal, the applicant confirmed in answer to a question from the Presiding Judge that when he used the word “inconsistent” in his grounds, he was referring to the inconsistency between the verdict of guilty returned by the jury and the evidence adduced in the trial. In these circumstances, all of the grounds where this formulation is used are to be understood as grounds that the verdicts were unreasonable.

193. In substance, the applicant submitted that the verdicts on counts 1-5 and 7 are unreasonable because the jury ought not to have accepted the evidence of Mr Obeid. The applicant pointed to inconsistencies between the evidence of Mr Obeid and other witnesses, as well as the circumstance that Mr Obeid obtained a discount on his sentence for providing assistance to authorities.

194. However, as the High Court held in M v The Queen, the question whether a verdict is unreasonable is to be determined by reference to the whole of the evidence. As appears from the narrative summary above, there was considerable evidence in support of counts 1-5 and 7 in addition to the evidence of Mr Obeid, which support Mr Obeid’s evidence. The evidence of Mr Obeid was not only supported by the documentary evidence, agreed facts, the evidence of employees at the various motor vehicle dealerships and the wealth of relevant documentation located at the applicant’s home, but also by admissions made by the applicant in his ERISP. It was open to the jury to accept Mr Obeid’s evidence and reject the applicant’s evidence. Further, it was entitled to take into account the wealth of evidence which corroborated Mr Obeid’s evidence on those grounds. Having reviewed all the evidence in support of counts 1-5 and 7, I am satisfied that it was open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt of those counts.

195. Further, although I did not understand the applicant to submit that his acquittal on count 6 was inconsistent with his convictions on counts 1-5 and 7, if he did make this submission, it is to be rejected. The evidence in support of count 6 was significantly weaker than the evidence of the other counts relating to Mr Obeid, as her Honour outlined in the summing up. That the jury found the applicant not guilty of count 6 is an indication of the diligence with which it approached its task.

Ground 10: The verdicts of conviction on counts 8 and 9 were “unsafe, unreasonable and inconsistent”

196. The reasonableness of the convictions on counts 8 and 9 has been addressed above in the consideration of ground 5. For the reasons given above, this ground has not been made out.

Ground 11: The verdicts of conviction on counts 10 and 11 were “unsafe, unreasonable and inconsistent”

197. The applicant seeks to impugn his convictions for counts 10 and 11 on two bases. First, that the judge unfairly intervened in the course of Mr Green’s cross-examination of Mr Younes, whose evidence formed the basis of counts 10 and 11; and, secondly, that the jury ought to have disbelieved Mr Younes because he was dishonest and gave an induced statement.

198. The first matter has already been addressed in the context of ground 2. Her Honour’s rejection of questions sought to be put by the applicant’s trial counsel was both fair and correct. Neither the questions asked by the applicant’s trial counsel in the cross-examination of Mr Younes, nor her Honour’s rulings, are deserving of criticism. The second matter can be addressed shortly. It was a matter for the jury whether to accept all or part of Mr Younes’ evidence and whether to accept all or part of the applicant’s evidence. As is apparent from the narrative summary above, the evidence adduced by the Crown of counts 10 and 11 derived from a number of sources and not merely from Mr Younes. These sources included admissions made by the applicant in his ERISP, Ms Salmeh’s statement, images of the Audi R8 found on the applicant’s phone as well as the evidence as a whole on which the Crown relied for both tendency and coincidence purposes.

199. Having reviewed all the evidence in support of counts 10 and 11, I am satisfied that it was open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt of those counts. Ground 11 has not been made out.

Ground 12: The verdicts of conviction on counts 12, 13 and 14 were “unsafe, unreasonable and inconsistent”

200. The applicant argued that the evidence of Mr Gruppelaar ought not to have been accepted by the jury because his memory of the transaction had to be refreshed by the Crown. However, a review of the evidence of Mr Gruppelaar indicates that he was firm and consistent in his evidence that the financial documents in support of the application for finance were provided to him by the applicant before he met with Mr Bannout.

201. The evidence of Mr Gruppelaar to this effect was inconsistent with Mr Bannout’s evidence that “Nick [Mr Agar] gave me documents”. However, Mr Bannout also said that he gave documents to Nick, and confirmed when cross-examined by the applicant that the applicant had not provided him with any documents. In re-examination by the Crown, Mr Bannout said that he never saw any of the documents that were prepared to obtain the cars, that he did not prepare any documents himself, and that he thought that Nick had done so.

202. The jury was entitled to prefer Mr Gruppelaar’s evidence to that of the applicant and to regard Mr Bannout’s evidence as generally unreliable as it was, at certain critical points, inconsistent. It is evident from the narrative summary that the Crown did not elicit evidence in chief from Mr Bannout but rather made him available for cross-examination at the applicant’s request. The verdicts on counts 12, 13 and 14 were also supported by the evidence of Mr Walker, Mr Bulgin and Mr Nixon, the agreed facts and the substantial number of documents and other items found at the applicant’s home. Further, the applicant made a number of admissions in the course of his ERISP as to his involvement in the transactions which were the subject of counts 12, 13 and 14.

203. Having reviewed all the evidence in support of counts 12, 13 and 14, I am satisfied that it was open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt of those counts. Ground 12 has not been made out.

Ground 13: The verdicts of conviction on counts 15 and 16 were “unsafe, unreasonable and inconsistent”

204. This count has been addressed in the consideration of ground 5. For the reasons given above, the ground has not been made out.

Ground 14: The verdicts of conviction on counts 17, 18, 19 and 20 were “unsafe, unreasonable and inconsistent”

205. The applicant argued that the verdicts of conviction on counts 17-20 were unreasonable because the jury ought not to have believed Ms Nouh as she gave an induced statement. He also argued that it was relevant that she had said, “I am not prepared to bankrupt myself for this amount [$15,000]” and contended that the trial judge had erroneously refused to allow him to cross-examine Ms Nouh about her bankruptcy in 2008. The applicant contended in this Court that anyone who was declared bankrupt must be “aware of everything to do with obtaining finance.” I understood him to submit, on that basis, that Ms Nouh had her eyes open when she entered into the transactions which were the subject of counts 17-19 and could not have been “recruited” by him (count 12).

206. The applicant argued further that, as Ms Nouh knew what she was doing, she must have been acting with him in furtherance of a joint criminal enterprise. He asked rhetorically, why she had not been charged with this and what the alleged joint criminal enterprise was.

207. The applicant also relied on Ms Nouh’s statement (about which the applicant cross-examined her) that she had deleted all of the applicant’s numbers and messages from her phone at his request. He compared this statement with the evidence of messages from the applicant which remained on her phone and said that this showed that she was “lying” and could not be relied upon. Further, he submitted that because he did not have access to all the messages (which he sent her) as she had deleted some, “maybe there is something that will say or will prove that she was lying”.

208. The trial judge correctly ruled against the line of cross-examination regarding Ms Nouh’s alleged bankruptcy in 2008 on the basis of relevance. The applicant’s submission that anyone who goes bankrupt knows everything about obtaining finance needs only to be stated to be refuted.

209. As to the applicant’s submission that Ms Nouh ought to have been charged with involvement in a joint criminal enterprise, the charges laid are a matter for prosecutorial discretion and are not, subject to limited exceptions, reviewable by a court: Elias v The Queen; Issa v The Queen (2013) 248 CLR 483 at [30] and [35]; [2013] HCA 31 (French CJ, Hayne, Kiefel, Bell and Keane JJ).

210. The applicant’s submission about Ms Nouh’s statement about having deleted the applicant’s numbers and messages does not take account of Ms Nouh’s further evidence that she had just deleted the numbers and not the messages. As referred to above, the question of what weight to give to Ms Nouh’s evidence was a matter for the jury. The applicant addressed the jury on the inconsistencies in her evidence and pointed to various aspects of her evidence which he urged them to find was unsatisfactory.

211. The jury was obliged to consider the evidence as a whole. The evidence in support of counts 17-20 was considerable, as the narrative summary set out above indicates. It included the statement of Mr Pahul, the evidence of Mr Candy, the evidence of Mr Bannout and the documents found at the applicant’s home. It also included all the evidence of the other counts on the basis referred to above.

212. Having reviewed all the evidence in support of counts 17, 18, 19 and 20, I am satisfied that it was open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt of those counts. Ground 14 has not been made out.

Ground 15: “Justice was rushed and tampered with”

213. There would appear to be five aspects to ground 15: first, that the trial judge ought to have granted the adjournment for a longer period; second, that the trial judge ought to have informed the jury of the reasons why the applicant had become unrepresented; third, that the trial judge directed the jury that it was entitled to accept parts of a witness’s evidence and reject other parts; fourth, that the Crown went beyond the limits set by the trial judge for its closing submissions; and, fifth, that the summing up was unfair.

214. The first aspect of the ground has already been addressed in my consideration of ground 2.

215. As to the second aspect, it is apparent from the transcript that the trial judge, the Crown, the applicant’s trial counsel and Mr Candelori, the applicant’s solicitor, were concerned to shield the jury from any information about the reason for the applicant appearing for himself. So much is evident from the exchanges which took place in the absence of the jury. Mr Candelori urged the trial judge to keep it “neutral”. It became clear in the course of his submissions in this Court that the applicant wished to contend that he had dismissed his counsel on the grounds of alleged incompetence and he would have liked the jury to have been made aware of this matter.

216. First, I am not satisfied that the applicant’s trial counsel was incompetent in any way. Although some of his questions were ruled inadmissible, this is not unusual in the context of a trial and does not imply incompetence: cf. R v Birks (1990) 19 NSWLR 677 at 685 (Gleeson CJ, McInerney J agreeing). On a number of occasions, the trial judge informed the applicant that Mr Green was a competent counsel who was representing him well. Had the trial judge appreciated that this was the reason for trial counsel’s withdrawal from the matter, and had her Honour informed the jury that the applicant had dismissed his trial counsel on the grounds of alleged incompetence (a matter with which the trial judge did not agree), there was a considerable risk that the jury would have thought less of the applicant, particularly if the jury considered that he had been doing a good job for the applicant. There was every reason why the trial judge, the Crown and Mr Candelori were circumspect about allowing the jury to know anything about the reasons for the applicant representing himself.

217. Second, it was within the applicant’s power to tell the jury himself that he thought he could do a better job than Mr Green (if that was his view). He refrained from informing them himself and is bound by his forensic decision.

218. The applicant refused to accept the correctness of the direction that a jury is entitled to accept parts of a witness’s evidence and reject other parts. He submitted orally to this Court:

“Well, when a witness lies on something, then he lies on everything. Then the witness should be unreliable.”

219. The applicant’s submission is at odds with the authority of Dublin, Wicklow & Wexford Railway Co v Slattery (1878) 3 App Cas 1155 at 1201 (Lord Blackburn). It is standard for trial judges to direct the jury that they are entitled to accept parts of a witness’s evidence and reject other parts. This misapprehension would appear to underlie the applicant’s complaints about the jury’s acceptance of the evidence of other witnesses, such as Mr Obeid (addressed above) although it was only articulated in this form in the context of ground 15.

220. Further, the applicant challenged the answer which the trial judge gave to the jury’s question about the date in Mr O’Neill’s statement. As is evident from the explanation given by her Honour, the date in the statement was in error as it was inconsistent with contemporaneous business records and agreed facts by a whole year (the witness statement referred to 2014 and other evidence established that it ought to have been 2015). The applicant objected to the direction at trial and in this Court on the basis that Mr O’Neill’s error was relevant to his credibility. As the error was identified by the jury after it had retired to consider its verdicts, there was no occasion for the applicant to require Mr O’Neill for cross-examination and challenge him about the date on which the events occurred. I am not persuaded that there was any error in the way her Honour dealt with the jury’s question.

221. The applicant’s submission that the Crown had transgressed the limitations on its closing submissions imposed by the trial judge was based on the length of the Crown’s closing submission. Further, the applicant was given a copy of the Crown’s outline and therefore had the opportunity to object to any part of it if he considered that it breached the limitations imposed by the trial judge. He made no such objection.

222. As is evident from the narrative summary, the Crown’s closing submissions commenced on Friday 18 October 2019 (on which the Court only sat until the luncheon adjournment) and concluded on Monday 21 October 2019 before the morning tea adjournment. The applicant did not identify, by reference to the substance of the address, any transgression of the limitations imposed by her Honour on the Crown to confine its address to outlining the Crown case on the various counts on the indictment.

223. The fairness of a summing up must be assessed as a whole. I am not persuaded that any of the passages identified by the applicant in his written submissions establish unfairness. To the contrary, the transcript shows the extent to which the trial judge sought to ensure that the applicant obtained a fair trial in circumstances where he was self-represented. Ground 15 has not been made out.

Ground 16: “The jury was deliberating for [a] very short unreasonable period.”

224. The basis for ground 16 is that the jury deliberated for only six hours over two days.

225. The time taken by juries to reach verdicts is both variable and unpredictable. It is a product of unknown factors, including whether there is general agreement from the outset as to the credibility of particular witnesses; and whether the jury has a good grasp of the evidence when they are sent out to deliberate or whether some of its members would like to go through the transcript and exhibits in detail before arriving at a verdict. The Crown case was, in substance, that the individual counts represented a dishonest course of conduct (hence its reliance on the evidence of one count as evidence on another). The jury was entitled to accept that case and convict on all grounds, save for count 6 where the evidence was considerably weaker (as had been pointed out to them by the trial judge in her summing up) than on the other grounds.

226. I do not regard the time taken by the jury as being unreasonably short or as providing any indication that the jury did other than discharge their functions in accordance with the oath or affirmation each member took at the outset, on the basis of the whole of the evidence in the trial. Ground 16 has not been made out.

The applicant’s bail application

227. On 6 May 2021 the applicant filed an application for release on bail pending the determination of his appeal against his conviction. That application was heard on 23 August 2021. It was dismissed on that day with reasons provided on 27 August 2021: Carnaby v R [2021] NSWCCA 203. The Court concluded at [15] and [24] that the matters put forward by the applicant in support of his application did not individually or collectively amount to “special and exceptional circumstances” as s 22 of the Bail Act 2013 (NSW) requires.

228. On 15 September 2021 the applicant filed a second application for release dated 25 August 2021. The basis for the further application was similar to what had been put forward on the earlier application, namely, the difficulty for the applicant of preparing his appeal whilst in custody because of the restrictions on his use of, and access to, available resources.

229. At a call-over on 21 October 2021 the Registrar advised that the release application could not be listed prior to the hearing of the appeal and would need to be listed for hearing with the appeal. The applicant then indicated that he wanted to amend, and add to his grounds and submissions on the appeal. The Registrar indicated that the bail application could proceed on 3 November 2021, with the conviction appeal being heard at a later date, although not before 9 May 2022. In those circumstances the applicant indicated that he would rely on his grounds and submissions on appeal as filed, and would proceed with both the appeal and the release application on 3 November 2021.

230. Given that the basis of the release application was the difficulty the applicant was having preparing his appeal in prison, and the fact that the appeal was heard at the same time as the release application, that basis for bail being granted has fallen away. In those circumstances, the applicant submitted at the conclusion of the hearing of the appeal, that he should be released on bail because it was likely that the Court would reserve its decision on the appeal. He drew attention to his poor health to submit that he may die in prison.

231. One of the mandatory considerations in s 18(1) of the Bail Act is paragraph (j) which provides:

“(j)   if the accused person has been convicted of the offence and proceedings on an appeal against conviction or sentence are pending before a court, whether the appeal has a reasonably arguable prospect of success,”

232. Having regard to paragraph (j), and particularly because the appeal grounds alleged unreasonable verdicts in respect of each of the counts, the Court considered that it ought to reserve its decision on the applicant’s release application as well as on the appeal. This was because the resolution of the appeal would inform the outcome of the release application.

232. In the circumstances where the appeal is to be dismissed, no further basis exists for the grant of bail. In those circumstances the release application should be dismissed.

Proposed orders

234. For the reasons given above, I propose the following orders:

In proceedings 2021/298644:

1. Application for release dismissed.

In proceedings 2016/373162:

1. Grant leave to appeal in respect of all grounds save for ground 4.

2. Refuse leave in respect of ground 4.

3. Dismiss the appeal.

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Decision last updated: 19 November 2021