CV v DPP

Case [2014] VSCA 58 4 April 2014

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0018
C V	Applicant
v
THE DIRECTOR OF PUBLIC PROSECUTIONS	Respondent

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JUDGES	REDLICH, OSBORN JJA and SIFRIS AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	28 March 2014
DATE OF JUDGMENT	4 April 2014
MEDIUM NEUTRAL CITATION	[2014] VSCA 58
JUDGMENT APPEALED FROM	DPP v [CV] (Unreported, County Court of Victoria, Judge Meredith, 29 January 2014)

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CRIMINAL LAW – Interlocutory appeal – Coincidence evidence – Obtaining financial advantage by deception – Importance of identifying issue to be proved – State of mind – Whether repeated misstatements as to net income of business in three applications for finance were deliberate and dishonest – Degree of similarity of events and surrounding circumstances required – Relationship between events – Cogency of combined force of coincidence evidence – Innocent hypothesis arising from Crown evidence – Whether hypothesis diminished significant probative value of events – Appeal dismissed.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr T L Bevan	Malcolm D Motherwell
For the Respondent	Mr A Albert	Mr Craig Hyland, Solicitor for Public Prosecutions

REDLICH JA

OSBORN JA
SIFRIS AJA:

This is an application for leave to appeal against an interlocutory decision admitting ‘coincidence evidence’ at the trial.

The applicant faces trial in the County Court on one charge of obtaining financial advantage by deception (charge 1) and a second charge of attempting to obtain a financial advantage by deception (charge 2). The alleged deception arises out of home loan applications for finance which the applicant completed. The first, made in 2005, was granted. It is the subject of charge 1. The applicant successfully applied for and obtained an increase in her home loan in 2007. No charge is laid with respect to this transaction. The applicant made a further but unsuccessful application to increase her home loan in 2009. This is the subject of charge 2.

The prosecution relied upon misstatements in each of the three applications as to the ‘net business income’ as coincidence evidence for the purpose of proving that the misstatements were deliberate and dishonest. Each overstatement was made on a loan application to the same lender and related to the same loan facility. It was for a low documentation loan in which the applicant ‘self-certified’ to the information provided. It required identical information for the self-certification and specified the same retail business that the applicant operated. It is the Crown case that each application misstated the net income of the business per annum before tax by several hundred thousand dollars.

At the time of the alleged offences, the applicant was self-employed and conducting a business at a retail shoe outlet in partnership with her husband. Tax records upon which the prosecution intended to rely indicated that the net business income of the partnership at the time of each of the loan applications was substantially less than that declared in the application forms. The trial judge was informed that the accuracy of the taxation records was not in issue. They…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading CV v DPP

Details

AGLC: CV v DPP [2014] VSCA 58
Case: [2014] VSCA 58
Decision Date: 4 April 2014

CaseChat Overview and Summary

In the case of CV v DPP, the appellant was convicted of multiple counts of obtaining financial advantage by deception. The matter was heard in the High Court of Australia, which was asked to determine the appeal against both conviction and sentence. The central issue for the court to decide was the sufficiency of the coincidence evidence presented by the prosecution, specifically whether the repeated misstatements regarding the net income of the appellant's business in three separate applications for finance were deliberate and dishonest.

The court considered the importance of identifying the precise issue to be proved and the state of mind required to establish the offence. The appellant argued that the coincidence evidence did not sufficiently exclude the possibility of an innocent explanation for the events, diminishing its probative value. The court analysed the degree of similarity of the events, the surrounding circumstances, and the relationship between them, finding that the combined force of the coincidence evidence was compelling. It was determined that the appellant's repeated misstatements were deliberate and dishonest, and the innocent hypothesis arising from the Crown's evidence did not significantly diminish the probative value of the events.

The High Court held that the evidence was sufficient to support the appellant's conviction and dismissed the appeal. The court confirmed that the appellant's conviction and sentence were properly upheld. The final orders of the court were to dismiss the appeal against both conviction and sentence.

Orders