Director of Public Prosecutions v Iliopoulos (Ruling No 4)
[2016] VSC 133
•5 April 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2014 0172
S CR 2014 0162
S CR 2014 0171
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STEVE ILIOPOULOS, BILL BARIAMIS AND PETER ILIOPOULOS |
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JUDGE: | KAYE JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 1 April 2016 |
DATE OF RULING: | 5 April 2016 |
CASE MAY BE CITED AS: | DPP v Iliopoulos & Ors (Ruling No 4) |
MEDIUM NEUTRAL CITATION: | [2016] VSC 133 |
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CRIMINAL LAW – Attempt to obtain financial advantage by deception – Application to bank for financial facilities for a group of companies – No case submission – Whether open to jury to conclude that steps taken to obtain finance sufficient to constitute attempt.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D Brown and Mr P Kounnas | Acting Solicitor for Public Prosecutions |
| For the Accused Steve Iliopoulos | Mr M Dempsey | Lethbridges |
| For the Accused Vasilis Bariamis | Mr G Georgiou SC and Mr L Howson | Dribbin & Brown |
| For the Accused Peter Iliopoulos | Mr D Glynn | Theo Magazis & Associates |
HIS HONOUR:
The three accused, Steve Iliopoulos, Vasilis (Bill) Bariamis and Peter Iliopoulos, have been tried jointly on an indictment that contains 14 charges. Steve Iliopoulos is charged with 13 counts, Bill Bariamis with three counts, and Peter Iliopoulos with seven counts, of obtaining a financial advantage by deception. Steve Iliopoulos and Bill Bariamis are also charged with a further count (charge 7) of attempting to obtain a financial advantage by deception.
The prosecution case has now closed. Counsel for Steve Iliopoulos and Bill Bariamis have each submitted that there is no case to answer on charge 7, and that I should direct that a verdict of not guilty be entered in respect of that charge pursuant to s 241 of the Criminal Procedure Act 2009. Counsel for Peter Iliopoulos has made a separate submission that there is no case to answer on each of the charges against his client. That submission is the subject of a separate ruling.
The background relating to the charges is contained in two earlier rulings that I have given in this matter.[1] It is not necessary for me to repeat them in any detail for the purposes of this ruling.
[1]See Director of Public Prosecutions v Steve Iliopoulos & Ors (Ruling No 1) [2016] VSC 32R; DPP v Iliopoulos & Ors (Ruling No 2) [2016] VSC 47R.
Steve Iliopoulos, who is the first accused on the indictment, was the founder and managing director of the Viking Group of Companies, which were involved in the provision of transport and logistic services. The second accused, Bill Bariamis, was the executive general manager of the Viking Group, and he was generally responsible for the administration of the operational side of the business. Bill Bariamis’ wife, Loukia Bariamis, was the chief financial officer of the group. She was in charge of, and controlled, the compilation, composition and production of all the financial documentation and information on behalf of the Viking Group.
Between 2008 and 2010, the operations of the Viking Group grew at a particularly fast rate. Those operations were principally financed by credit facilities provided to the group by the Commonwealth Bank of Australia (‘CBA’). The facilities included a receivable finance facility, by which the bank financed 80% of the current debtors of three companies in the Viking Group. That facility was, in substance, a factoring arrangement between those three companies and the CBA.
Charges 2, 4 and 6 of the indictment allege that, on three separate occasions, the financial facilities provided by the CBA were obtained by the making of false representations by members of the Viking Group to the bank relating to the accounts and financial circumstances of the Viking Group. In particular, it is alleged that the financial facilities were provided by the bank to the Viking Companies on the basis of financial accounts and compilation reports that purported to have been produced by a chartered accountant, Mr Alex Vovos of Meridian Financial Services, when, in fact, those accounts had been compiled by Loukia Bariamis without the authority of Mr Vovos. Charge 6 also alleges that the aged debtor trial balances for three of the companies in the Viking Group, provided to the CBA, fraudulently inflated the amount of debtors owed to those companies, by inventing debtors, and by exaggerating the amounts owed to the group by existing customers.
Notwithstanding the provision of substantial financial facilities by CBA, the Viking Group continued to suffer severe cash flow difficulties, particularly in 2009 and 2010. One difficulty arose from the nature of the receivable finance facility provided by the CBA to the Viking Group, which was considered to be insufficiently flexible to enable appropriate funding of the debtors of the group. As a consequence, in mid-2010, approaches were made by the executives of the Viking Group to the Westpac Banking Corporation Limited (‘Westpac’) to refinance the facilities then provided to the Viking Group by CBA, which amounted, at that stage, to the sum of approximately $53 million. Discussions concerning the refinancing of the Viking Group’s facilities with Westpac ensued for the latter half of 2010, but did not, ultimately, lead to the provision of financial facilities by Westpac to the Viking Group. It is those discussions, and information provided to Westpac in the course of them, that form the subject of count 7 on the indictment.
Charge 7 alleges that, between 6 July 2010 and 30 March 2011, Steve Iliopoulos and Bill Bariamis, together with Loukia Bariamis, dishonestly attempted to obtain for themselves and/or another a financial advantage, namely financial lending facilities, from Westpac by deception.
In essence, it is alleged that two principal false representations were made to Westpac constituting the deception alleged in the charge. The first representation was that Viking Fleet Services Pty Ltd was the exclusive supplier of heavy vehicle maintenance services to Aldi stores in Victoria, that it had substantial business generated by a contract with Boral Resources (Vic) Pty Ltd, and that it had substantial business generated by a contract with Linfox. Those representations are alleged in particulars (a), (b) and (c) to charge 7. They were contained in a document entitled ‘Viking Group Divisional Strategic Overview 2010 to 2011’ (‘the Strategic Overview’) provided to Westpac in the course of the discussions that took place in 2010.
The second representation concerns the financial accounts, and compilation reports, for nine companies in the Viking Group, that were provided to the CBA, and that purported to have been prepared by Alex Vovos of Meridian Financial Services. Those representations are alleged in particulars (d) to (l) of charge 7.
It is not in issue that the statements in the strategic overview , concerning the level of business conducted by Viking Fleet Services with Aldi, Boral and Linfox , were false. Nor is it in issue that the accounting documents, and compilation reports, for the nine companies that were provided to Westpac were not in fact prepared by, or with the authority of, Alex Vovos of Meridian Financial Services.
The prosecution case, on charge 7, is that Steve Iliopoulos and Bill Bariamis, together with Loukia Bariamis, were parties to a joint criminal enterprise to obtain financial lending facilities for the Viking Group from Westpac by deception, and that, pursuant to that joint criminal enterprise, one or more parties to it attempted to obtain that financial advantage from Westpac by deception.
The principal factual issue, in the trial, is whether the accuseds Steve Iliopoulos and Bill Bariamis were aware of the falsity of the representations that were made to Westpac, and whether they intended by those representations to deceive Westpac to provide financial facilities to the Viking Group.
In order to establish the guilt of the accuseds, on charge 7, the prosecution must prove, as one of the elements of that charge, that one or more of the parties to the joint criminal enterprise attempted to obtain the financial lending facilities for the Viking Group from Westpac by deception. The no case submission, that is made on behalf of Bill Bariamis and Steve Iliopoulos, is based on the proposition that, on the evidence, the jury could not conclude that the steps, that had been taken towards the obtaining of financial lending facilities from Westpac, were sufficiently advanced to constitute an attempt to obtain a financial advantage by deception from Westpac. In particular, it is submitted, on behalf of each accused, that, on the evidence , the jury could not conclude that the steps taken to obtain financial lending facilities from Westpac were more than preparatory to the commission of the offence of obtaining those facilities from Westpac, and that the jury could not conclude that those steps were immediately, and not remotely, connected with the commission of that offence.
In order to examine that submission, it is necessary to set out the evidence in a little detail.
Summary of evidence
For some time the Viking Group had had an equipment finance facility with Westpac. In early July 2010, Joe Scalisi, who was in charge of the section of Westpac responsible for that facility, informed members of the corporate section of Westpac that Viking might be interested in re-financing its facilities with Westpac. On 6 July 2010, two members of that section, Anton Camilleri and Jonathan Shakes, attended a meeting at the Viking Docklands main office with Bill Bariamis, Steve Iliopoulos, Loukia Bariamis and Peter Iliopoulos. The meeting was essentially introductory in nature. The discussion at the meeting was led by Bill Bariamis. He gave Camilleri and Shakes a background to the company, and outlined the turnover and gross net profit of the business for the preceding nine months. In the course of the discussion, the Westpac representatives stated that it was the bank’s policy for all its clients to have to produce audited financial accounts. In response, the Viking management stated that its accounts did not need to be audited, and it was resistant to the proposition that its accounts should be audited.
On the next day, 7 July, Anton Camilleri sent an email to Loukia Bariamis (copying Bill Bariamis, Jonathan Shakes and others) requesting financial information in accordance with an attached ‘detailed information request’. That document set out the specific financial accounts that Westpac required to enable it to assess the trade performance of the business and to design the most suitable debt facility. In response, Bill Bariamis agreed to provide the requested information with the exception of audited accounts. At that stage, Anton Camilleri then passed the management of the relationship with Viking to Shakes.
In a series of emails that passed between the parties in July, some discussion took place between the parties concerning Westpac’s requirement for audited accounts. Bill Bariamis made it clear that Viking would not have its accounts audited or provide audited accounts. Ultimately, Westpac relented, and did not insist on that requirement.
After a short delay, on 27 July 2010, Bill Bariamis sent three emails to Jonathan Shakes, attaching files that contained some of the financial data that Westpac had requested. They included the financial accounts that are the subject of particulars (d), (e) and (l) of charge 7. On 6 August 2010, Bill Bariamis sent a further email to Jonathan Shakes stating that the June 2010 consolidated accounts would be available on the following Monday, together with the 2011 projections. He stated that debtor information would be provided that afternoon.
On 9 August 2010, Shakes, together with two other representatives of Westpac, attended a meeting with Bill Bariamis. Loukia Bariamis and Steve Iliopoulos attended the meeting on speaker phone. At the meeting, there was further discussion about the facilities that Westpac could provide to Viking. There were also discussions about the provision of audited accounts to Westpac. Shakes recommended that Viking engage Pitcher Partners to prepare and audit its accounts, but the Viking representatives were reluctant to incur the expense that that would involve. At the conclusion of the meeting, it was agreed that Loukia Bariamis would provide further information, consisting of the accounts to 30 June 2010, financial projections for the ensuing financial year, and accounts receivable information.
On 13 August 2010, Bill Bariamis emailed to Jonathan Shakes some valuations that had been requested by him . On 16 August, Loukia Bariamis sent an email to Shakes stating that she needed to clarify some matters relating to the financial documents that were to be provided to Westpac. She stated that once those matters were clarified, she would be in a position to finalise and forward the 2010 financial statements and the 2011 projections for the group. On 17 August 2010, Carly Hartley, an employee of Viking, emailed the accounts receivable information, that had been requested by Westpac, to Loukia Bariamis, with copies to Bill Bariamis, Jonathan Shakes and Steve Iliopoulos.
It appears from the evidence that, at about that time, the financial accounts for the year ended 30 June 2010 were also provided by Viking to Westpac. There was no direct evidence as to how those accounts were provided to Westpac. However, in his evidence, Jonathan Shakes stated that the accounts were provided to Westpac approximately one month after the first meeting on 6 July. Further, it is necessarily implicit from Jonathan Shakes’ evidence in re-examination that those accounts were not outstanding at the time at which, ultimately, the discussions between Westpac and the Viking Group came to an end.
At about that time, Jonathan Shakes detected an anomaly in the accounts forwarded to him by Viking. In particular, the closing balances of the accounts for one financial year did not equate with the opening balances of those accounts for the following year. After Jonathan Shakes drew that matter to Loukia Bariamis’ attention, she sent an email to him stating that, after the analysis that he had given her, she had discovered that the software she had been using had some sort of problem when it carried forward the opening balances. She stated that she proposed to change software to rectify the problem.
In evidence, Loukia Bariamis stated that the software problem was a concoction by her to conceal the fact that she had fabricated the accounts of Viking that had been provided to Westpac. She said that she did not wish to continue with the application to re-finance the Viking facilities with Westpac, as she was concerned that if the negotiations continued, Westpac would detect the fraudulent nature of the documents that she had provided to the bank.
On 8 October 2010, Shakes spoke with Loukia Bariamis about the software problem. She told him that Viking had not been able to fix that problem, so that Viking had made a decision to replace its software with a product that would perform its task properly. On 21 October 2010, she sent Shakes an email to that effect.
After those communications, Viking ceased to have any further contact with Westpac until the following February. On 3 February 2011, Jonathan Shakes telephoned Bill Bariamis to follow up on the previous year’s discussions. He told Bariamis that Westpac was trying to obtain financial accounts that ‘hung together’ so that Shakes could complete his credit submission. Following that telephone conversation, Bill Bariamis sent Shakes an email dated 7 February suggesting a meeting on 22 February ‘re picking up the WBC (Westpac/Viking) process where we left off late last year’. On 25 February, Shakes had a meeting with Bill Bariamis, in which the latter stated that Viking was still working towards providing the requested information. Bariamis told Shakes that Viking was continuing to discuss with the Commonwealth Bank the re-structure of its facilities. He told Shakes that if Westpac could deliver the facilities that the parties had been discussing, then Viking would accept those facilities.
On 30 March 2011, Loukia Bariamis sent Shakes an email stating that she was collating the additional information that had been discussed, and that she should be able to forward that information to him before the meeting that had been arranged on the next Monday.
Finally, on 3 May, Shakes attended a meeting with Bill Bariamis. When Bariamis asked him about the status of the matter with Westpac, Shakes responded that all the files had been moved to the loan management unit within Westpac, because the Viking Group had by then gone into receivership.
In cross-examination, Mr Shakes described the various steps that, ordinarily, are undertaken at Westpac in assessing an application for a financial facility by a corporation such as Viking. In essence, he identified seven major steps that are required to be undertaken, namely:
(1)The first stage involves the bank having an introductory meeting with the potential customer to discuss the background of the customer and to ascertain why the customer wanted to change banks.
(2)The second stage in the process is that the customer then provides to Westpac all of its financial information. Mr Shakes stated that, in this respect, he made it clear, at the initial meeting, what information would be required by Westpac to assess Viking’s application. While much financial information was provided by Viking, by March 2011, two important pieces of information were still outstanding. First, Viking had failed to provide balance sheets for successive years that had corresponding opening and closing balances. Secondly, Viking had failed to provide projections for the current financial year.
(3)The third stage would have involved Mr Shakes and Mr Camilleri reviewing the financial information provided by Viking, and preparing a credit submission to be provided to the credit department. However, Mr Shakes stated that that process could not be completed, because Westpac had not been provided with the projections nor the balance sheets that had corresponding opening and closing balances.
(4)The fourth stage ordinarily involves review and analysis of the credit submission. That process is undertaken by two or three people in the credit department, who take into account a number of factors, including the potential customer’s historic financial performance, its projected financial performance, the nature of the industry, and margin analysis management. If the credit department accepts the credit submission, the application is passed to the loans and syndication department, which prepares the ‘credit section term sheet’. That document is approximately 15 pages in length, and includes operating covenants, the required security, and other such matters. The term sheet is then provided to the customer. It does not constitute an offer but, in contractual terms, consists of an invitation to treat.
(6)If the term sheet is acceptable to the customer, the matter is passed to the business analyst team of the bank, which prepares a 40 page credit submission. That team also prepares its own budgets and analysis of the applicant’s business, and conducts a sensitivity analysis. When that process is completed, the credit submission is passed to the credit department for formal sign off.
(7)The seventh and final stage consists of the issue, by the credit department of the bank, of a binding letter of offer to the potential customer. If the offer is accepted, the application process is completed.
In re-examination, Mr Shakes stated that, although the financial information provided by Viking to Westpac was incomplete, he did commence to prepare the credit paper, which constitutes stage three in the process that I have described above. He said that the work involved, in preparing that credit paper, consumed some 30 to 60 hours of work. Mr Shakes stated that if the further figures had been provided by Loukia Bariamis, and if the opening and closing balances corresponded, it would have been likely that he would have issued a credit paper favourable to the application. He said that the financial figures provided by Viking strongly supported the proposed debt structure. Mr Shakes stated that if he had submitted a credit paper, he would have expected to have been required to answer a number of questions by the credit department, in particular, in relation to the net profit ratio reported by Viking, which was considerably higher than the usual ratio for the transport and logistics industry.
Submissions
Mr Georgiou SC, who appears with Mr Howson for Bill Bariamis, submitted that, on the evidence adduced in the trial, the jury could not rationally conclude that the conduct of those involved in the application for finance to Westpac was more than merely preparatory to the commission of the offence of obtaining a financial advantage by deception, and was immediately and not remotely connected with the commission of that offence.
Mr Georgiou made that submission by reason of three principal factors. First, he submitted that the information, provided by Viking to Westpac, was insufficient for the application to proceed beyond the initial stages of the process. In particular, by October 2008, the process had stalled, because Loukia Bariamis had not provided the financial projections, nor had she provided financial accounts that balanced with each other, in the sense that the closing balance of one year’s accounts corresponded with the opening balance of the succeeding year’s account. Secondly, as Mr Shakes and Mr Camilleri were well aware, Viking were negotiating with CBA for a revision of its financial facilities with that bank, while at the same time negotiating with Westpac. That circumstance, Mr Georgiou submitted, had the effect that the application made to Westpac was more in the nature of a negotiating ploy undertaken by Viking, rather than the commencement by it of a process in which Viking was committed to obtaining finance from Westpac. Thirdly, Mr Georgiou submitted that, in any event, Viking’s application to Westpac had not proceeded past the initial stages of the process that was required to be undertaken for the acceptance of the application and grant of the financial facilities to Viking. In particular, the process had stalled at the second step that I have described above, as Loukia Bariamis had consistently failed to provide to Westpac the information that was required to enable Mr Shakes and Mr Camilleri to compile a completed credit paper.
In those circumstances, Mr Georgiou submitted that the jury could not lawfully conclude, on the evidence, that the accuseds, as parties to the application for finance to Westpac, had engaged in conduct that was more than preparatory to the commission of the offence charged, and that that conduct was immediately, and not remotely, connected with the commission of that offence.
Mr M Dempsey, who appears on behalf of Steve Iliopoulos, adopted the submissions made by Mr Georgiou on behalf of his client.
In response, Mr Brown submitted that the application by Viking to Westpac to re-finance its facilities proceeded well beyond the preparatory stages of the process. He drew attention to the fact that, between July and October 2010, Viking provided to Westpac a considerable amount of financial and other information and material. In the end, only two pieces of financial information were outstanding, namely, the provision of the financial projections, and the provision of accounts which corresponded. Mr Brown contended that the test, for determining whether an attempt to commit an offence has taken place, focuses on the actions of the accused person. In particular, if those actions have proceeded well along the path of the commission of the offence, they may constitute an attempt to commit that offence, notwithstanding that a number of other steps or circumstances, beyond the accused’s control, must still be completed or fulfilled. Mr Brown drew attention to the fact that, when the process came to an end, the parties were well advanced into the third stage of the process that I have described above. He noted that each of the succeeding four stages, described by Mr Shakes, were to be undertaken by Westpac, and not by Viking. Thus, Mr Brown submitted that the accuseds had taken sufficient steps, along the path to obtaining finance for Viking from Westpac, for the jury to lawfully conclude that their actions constituted an attempt to obtain that financial advantage as alleged in charge 7.
Legal principles: no case submission
The principles, which are relevant to a no case submission, are well established. The test, which is to be applied, is not whether the accuseds should be convicted by the jury of the charge against them. Rather, the test is whether, on the evidence, the jury could lawfully conclude that the accuseds are guilty of that offence.[2]
[2]May v O’Sullivan (1955) 92 CLR 654, 658.
Thus, even if the prosecution case is weak, it must be left to the jury, unless on the evidence the accuseds could not be lawfully convicted. In considering a no case submission, the judge is not concerned whether a verdict of guilty, based on the evidence, might be liable to be set aside by an appellate court as unsafe. Thus, where there is evidence upon which the accused could lawfully be convicted, the judge must reject the no case submission, notwithstanding that the judge may apprehend that a verdict, based on that evidence, would be unsafe.[3]
[3]Attorney-General’s Reference No 1 [1983] 2 VR 410, 417.
Legal principles: Attempt
Section 321N(1) provides that a person is not guilty of attempting to commit an offence unless the conduct of that person is more than merely preparatory to the commission of the offence, and is immediately, and not remotely, connected with the commission of that offence. That test effectively replicates the principles that have been long established at common law.[4] The question, whether the actions of an accused were sufficient to constitute an attempt, and in particular whether those actions were sufficiently proximate to the completion of the intended offence, to constitute an attempt, is a question of fact.[5]
[4]Haughton v Smith [1975] AC 476, 492 (Lord Hailsham); Director of Public Prosecutions v Stonehouse [1978] AC 55, 68 (Lord Diplock); R v Mai (1992) 26 NSWLR 371, 381-2 (Hunt CJ at CL).
[5]DPP v Stonehouse [1978] AC 55, 79-80 (Lord Salmon); 87-88 (Lord Edmund-Davies), 94-5 (Lord Keith); see also Situ v R [2008] NSWCCA 161, [28] (McClellan CJ at CL); Susak v The Queen (1999) 105 A Crim R 592, 595 [13] (Riley J).
The dividing line between actions which are merely preparatory in nature, and actions which might be properly characterised to be immediately connected with the commission of the intended offence, is not clear cut. In an often cited passage, Salmond J, in R v Barker,[6] stated,
All that can be definitely gathered from the authorities is that to constitute a criminal attempt, the first step along the way of criminal intent is not necessarily sufficient and the final step is not necessarily required. The dividing line between preparation and attempt is to be found somewhere between these two extremes; but as to the method by which it is to be determined that the authorities give no clear guidance.
[6](1924) NZGLR 393, 397-8; see also R v Williams, ex parte Minister for Justice & Attorney-General [1965] Qd R 86, 101-102 (Stable J); R v De Silva [2007] QCA 301, [20] (Gerrard JA).
The point made by Salmond J, in the above passage, is well demonstrated by a comparison of cases, in which an attempt to commit a crime has been established,[7] with cases in which an attempt has not been proven.[8]
[7]See for example, R v Paige [1933] VLR 351; R v Jones [1990] 1 WLR 1057; R v Williams; ex parte Minister for Justice (Qld) [1965] Qd R 86; Nicholson v The Queen (1994) 76 A Crim R 187.
[8]See for example, R v Chellingworth [1954] QWN 35; R v Gullefer [1990] 1 WLR 1063; R v Robinson [1915] 2 KB 342.
That observation is particularly pertinent in the context of attempts to obtain a financial advantage by deception. In the course of submissions, Mr Georgiou referred to the decision of the Court of Appeal in R v Tadic,[9] and I referred him to another decision of the Court of Appeal in R v Andreola.[10] The facts of each case, that are set out in the judgments of the Court of Appeal, are not particularly detailed. However, with respect, the two decisions are not susceptible of a ready reconciliation, which demonstrates the indefinite nature of the boundary between steps that are merely preparatory to the commission of an intended crime, and steps which are sufficiently advanced to constitute an attempt to commit that crime.
[9][2003] VSCA 28.
[10][2002] VSCA 92.
In Tadic, the accused was convicted of two counts of attempting to obtain a financial advantage by deception. On appeal, the court held that evidence had been wrongly admitted in relation to the first charge. In respect of the second charge (count 3), a mortgage broker had sought to negotiate a personal loan facility for the accused with Latrobe Home Loans. The application was made by use of a false name for the accused, and was supported by a driver’s licence and photograph of another person. The application was provisionally approved by the finance company, but was not proceeded with. In a concise passage, Callaway JA (with whom Ormiston JA and Eames JA agreed) stated:
In the present case, in my view, there should be a judgment and verdict of acquittal on both counts. In the case of count three, that is because the evidence at trial was insufficient to show conduct going beyond mere preparation.[11]
[11]R v Tadic [2003] VSCA 28, [25].
By contrast, in R v Andreola, the accused was convicted of four charges of dishonestly attempting to obtain for himself a financial advantage from three banks. In each case, he sought finance, or a credit facility, from banks by making representations about being possessed of enormous wealth. He told the banks that his funds were held overseas in US bonds, that he represented a wealthy United States corporation, that he was going to purchase Coles Myer, that he had purchased a well-known golfer’s jet aeroplane, and that he was in the process of having another one built for him. Due to the vigilance of bank officers with whom he dealt, the accused did not obtain the financial advantage that he sought. In each case, the bank would not provide a facility or transfer funds to the accused, without the applicant providing appropriate documentation and evidence that he had the wealth that he claimed to possess. O’Bryan AJA (with whom Callaway and Vincent JJA agreed) held that, in the case of each charge, it was open to the jury to find that the steps undertaken by the accused were more than merely preparatory to obtaining the financial advantage sought by him. His Honour stated:
In respect of each attempt count, the offence of obtaining a financial advantage from the bank would have been completed immediately upon his being provided the financial facility he requested. The circumstance that loan documents were not brought into existence did not make the false representations preliminary or introductory. They were more than preparatory acts for they had a direct bearing on the applicant obtaining the financial facility he had sought.[12]
[12]R v Andreola [2002] VSCA 92, [28].
In a case of an attempt to obtain a financial advantage, or property, by deception, the success of the alleged fraud usually requires the cooperation, or response, of the intended victim. In such a case, generally, the courts focus on the steps that are required to be undertaken by the accused to commit the completed offence. In particular, where the accused has done all that he could towards the commission of the particular offence, and the completion of it was only prevented by the conduct of the intended victim, the court will ordinarily find that the requisite attempt to commit the crime has taken place.[13] However, I do not understand those authorities to require that the accused, in such a case, must have undertaken all the steps that he could to the commission of the crime, for the accused’s conduct to constitute an attempt at law. Rather, the focus of those authorities is on the steps taken by the accused, rather than the processes which must be undertaken by the intended victim, in order that the completed offence be committed.
[13]See Haughton v Smith [1975] AC 476, 494 (Lord Hailsham LC), 498-9 (Lord Reid); Kristo v R (1989) 39 A Crim R 86, 100 (Cox J).
Conclusion
The question that I must determine, for the purpose of this application, is whether, on the evidence adduced in the trial, the jury could lawfully conclude, as a matter of fact, that the steps taken by the accuseds, in respect of the application for finance from Westpac, were more than merely preparatory to the obtaining of financial facilities from Westpac, and were immediately, and not remotely, connected with the obtaining of that financial advantage.
The principal points made on behalf of the accuseds, on this application, are that, first, the accuseds had not provided all of the information required by Westpac to assess the application for re-finance to it, and, secondly, in order that that application be acceded to by Westpac, the bank, upon receipt of that information, would then need to undertake a number of detailed steps in assessing and analysing that information, and in determining whether, and if so on what terms, it should provide the financial facilities to the Viking Group.
Certainly, it is uncontroversial that important financial information, that Westpac required, had not been provided by the Viking Group to Westpac at the time at which the attempt to obtain finance came to an end. In addition, on the provision of such information, Westpac would have then been required to undertake an extensive, and rather lengthy, process of analysis of the financial information provided by Viking, before it accepted the application for finance made to it on behalf of the Viking Group.
On the other hand, it is clear on the evidence that the steps taken on behalf of Viking Group, to provide the required information, and to further its application for re-finance, had proceeded well beyond the introductory or initial stages of the application. After the initial meeting on 6 July 2010, Bill Bariamis had forcefully, and ultimately successfully, negotiated with Westpac that the bank not insist on its requirement for the provision of audited accounts by Viking to Westpac. On 27 July, Bill Bariamis, by three emails, forwarded to Westpac a substantial package of financial information that was sought by Westpac. The first email, in particular, enclosed the previous three years’ accounts of the Viking companies, the companies’ management accounts to March 2010, and other related information, relating to the senior management structure and organisational chart of Viking. The second email enclosed further Viking Group Holding Pty Ltd financial accounts as at 31 March 2010. The third email contained further financial and other materials, including aged trial balances for the key Viking companies.
Two days later, on 29 July, Bill Bariamis forwarded to Mr Shakes materials entitled ‘Acquisitions data’ that had apparently been requested by Mr Camilleri.
On 9 August, the parties had another meeting. At the meeting of 9 August, Viking representatives undertook to provide the group’s financial accounts as at 30 June 2010 and the financial projections that were sought by the bank. On the next day, 10 August, Bill Bariamis forwarded to Grant Gardner of the Westpac Bank (with a copy to, inter alia, Jonathan Shakes) a paper relating to the facility required by Viking to purchase the Kororoit Creek property in 2012. On 13 August, Bill Bariamis forwarded to Mr Shakes valuations of four properties that had been requested by Westpac. On 16 August, Bill Bariamis sent an email to Jonathan Shakes setting out the top 10 clients of the Viking Group, and stating that the 30 June 2010 accounts would be forwarded on the same day. Those accounts were forwarded to Westpac shortly after that email. Finally, on 17 August, Carly Hartley, at the behest of Loukia Bariamis, forwarded to Mr Shakes the aged trial balances for debtors and creditors of three principal companies in the Viking Group, Perth Freightlines, Viking Fleet Services, and Viking Transport and Logistics.
It would appear that shortly after that stage, Mr Shakes identified the inconsistency between the opening and closing balances of the accounts provided to him by Viking. It was at that stage that, in hindsight, the process stalled, and did not proceed, effectively, any further.
Thus, it can be seen that the steps taken by Viking, to further its application up to 17 August, were quite substantial, notwithstanding that, in effect, Viking had not provided to Westpac two important pieces of financial information, which were necessary to complete its application. As I have stated, the question which I must decide is not whether I, sitting as the tribunal of fact, would hold that the steps thus far undertaken by Viking were sufficient to constitute an attempt to obtain the financial advantage from Westpac that is the basis of charge 7. Rather, the question is whether the jury, based on those facts, could lawfully conclude that those steps did constitute an attempt to obtain that financial advantage from the bank.
Ultimately, I have come to the conclusion that the steps taken by Viking, in furthering its application to Westpac, were sufficiently advanced for the jury to lawfully conclude that there had been an attempt, by those responsible for the application, to obtain the financial advantage from Westpac that is alleged in charge 7 of the indictment.
In my view, the jury could lawfully conclude that the steps were more than merely preparatory to obtaining that financial advantage, and that, while they were necessarily incomplete, they were sufficiently advanced to constitute an attempt by Viking to obtain that financial advantage by deception. The jury would, I consider, be entitled to conclude that the negotiations between the parties, and the quantity and nature of the information provided by Viking to Westpac at the request of Westpac, taken together, were such as to constitute steps taken by Viking that were immediately, and not remotely, connected with the obtaining for the Viking Group of Companies of the financial advantage that is the subject of charge 7. The fact that Viking was still required to provide further information to Westpac, and that, upon receipt of that information, Westpac would need to undertake extensive review and analysis of the materials, would not, in my view, stand in the way of the jury lawfully reaching that conclusion. In essence, the Viking representatives had proceeded significantly along the path to completing the application to obtain the financial facilities from Westpac. In those circumstances, I do not consider that the fact that Westpac still needed to undertake significant steps to review the information provided to it by Viking would preclude a conclusion by the jury that the steps taken by the Viking representatives constituted an attempt to obtain the financial advantage alleged in charge 7.
For those reasons, I do not accept the submission, made on behalf of the accuseds, Bill Bariamis and Steve Iliopoulos, that there is no case for the accuseds to answer in respect of charge 7 on the indictment.
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