DPP v Iliopoulos
[2016] VSC 132
•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, 4 April 2016 |
DATE OF RULING: | 5 April 2016 |
CASE MAY BE CITED AS: | DPP v Iliopoulos & Ors (Ruling No 3) |
MEDIUM NEUTRAL CITATION: | [2016] VSC 132 |
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CRIMINAL LAW – Obtaining financial advantage by deception – No case submission-Inferences.
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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 prosecution case is now closed. Mr D Glynn, who appears on behalf of the third accused, Peter Iliopoulos, has submitted that there is no case to answer on each of the charges against his client, and that I should direct that an entry of not guilty be made in respect of those charges pursuant to s 241 of the Criminal Procedure Act 2009.
Peter Iliopoulos is charged on an indictment that contains 14 counts. He is charged with seven of those counts, which allege that he obtained a financial advantage by deception. Charges 8 and 14 allege that he obtained a financial advantage from the Commonwealth Bank of Australia (‘CBA’) in October 2010, and in November 2010, respectively, arising out of applications for the provision of financial lending facilities by the CBA to members of the Viking Group of Companies. Charges 9 to 13 (inclusive) allege that he obtained a financial advantage by deception from the CBA, arising out of applications for hire purchase finance by the CBA to Viking Asset Management Pty Ltd, pursuant to an equipment finance facility provided by the bank to that company.
The background, and circumstances, relating to the charges, are set out in two earlier rulings that I have already given in this matter and it is not necessary for me to repeat them for the purposes of this ruling.[1] Peter Iliopoulos’s father, Steve Iliopoulos, who is the first accused on the indictment, was the founder and managing director of the Viking Group of Companies. Steve Iliopoulos effectively owned those companies, and was the person who ultimately made the major strategic decisions relating to the companies. The second accused, Bill Bariamis, was the executive general manager of the Viking Group of Companies, and 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 of the financial documentation and information on behalf of the Viking Group of Companies. Loukia Bariamis has already pleaded guilty to three charges of obtaining financial advantage by deception arising out of the circumstances of the case, and has been sentenced to a term of imprisonment by another judge of this Court. Pursuant to an undertaking that she gave to the court in the course of sentencing submissions made on her behalf, Loukia Bariamis has given evidence on behalf of the prosecution in the trial.
[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.
Peter Iliopoulos was born in June 1988. After he completed his secondary education, he commenced employment with Viking Fleet Services Pty Ltd. He commenced employment in the stores department of that company. Subsequently he was moved to the head office of the Viking Group at Docklands in the second half of 2008. During the ensuing two years, his principal role was to be mentored by Bill Bariamis, with a view to he, and his brother Jimmy, ultimately taking over the management of Viking Group. In 2010, Peter Iliopoulos was made a director of the principal companies in the Viking Group. In that capacity, he signed a number of the financial documents relating to the provision of finance, or financial lending facilities, by the CBA to the Viking Group of Companies, that are the subject of charges 8 to 14.
Submissions
Legal principles
Charges 8 and 14 allege that Peter Iliopoulos committed the offences, alleged in those charges, pursuant to a joint criminal enterprise between himself, Steve Iliopoulos, Bill Bariamis and Loukia Bariamis. Charges 9 to 13 each allege that Peter Iliopoulos committed the offences, alleged in those charges, pursuant to a joint criminal enterprise with Steve Iliopoulos.
Essentially, in order to prove the guilt of an accused on a charge of dishonestly obtaining a financial advantage by deception, the prosecution must prove three elements, namely: that the accused obtained a financial advantage for himself or another person; that the accused obtained that advantage by deception; and that the accused obtained the financial advantage dishonestly. In this case, in order that Peter Iliopoulos be convicted of that offence, by being engaged in a joint criminal enterprise with another to commit that offence, the prosecution must prove beyond reasonable doubt:
(1)Peter Iliopoulos was a party to an agreement with the person, or other persons, specified in the particular charge, to dishonestly obtain by deception the financial lending facility, or the hire purchase finance, specified in the charge.
(2)In accordance with that agreement, and while the agreement remained in existence, one or more of the parties to the agreement performed all the acts that were necessary to commit the completed offence of dishonestly obtaining that financial advantage by deception.
(3)Peter Iliopoulos participated in the joint criminal enterprise to dishonestly obtain the financial advantage, specified in the charge, by deception.
(4)At the time at which Peter Iliopoulos became a party to the agreement to commit the offence charged, and at the time at which Peter Iliopoulos participated in the commission of the offence that is the subject of the agreement, Peter Iliopoulos dishonestly intended to obtain the financial advantage, specified in the charge, for himself or for one or more of the entities in the Viking Group of Companies.[2]
[2]See R v Clarke & Johnstone [1986] VR 643, 652 and following; Likiardopoulos v R (2010) 30 VR 654, 662-671 [41]-[75]; Arafan v R (2011) 31 VR 82, 88-91 [24]-[36].
The principles, which are relevant to a no case submission, are well established and not controversial. The test, which I must apply, is not whether the accused should be convicted. Rather, the test is whether, on the evidence, the jury could lawfully convict him.[3] In particular, the test is not whether a verdict of guilty would be unsafe and unsatisfactory, and thus be liable to be set aside on appeal. Even if the prosecution case is weak, it must be left to the jury, unless on the evidence the accused man could not be lawfully convicted.[4]
[3]See May v O’Sullivan (1955) 92 CLR 654, 658.
[4]R v Doney (1990) 171 CLR 207, 215; Attorney-General’s Reference No 1 of 1983 [1983] 2 VR 410, 417.
In the present case, the prosecution will rely on inferences, particularly, that Peter Iliopoulos was a party to the joint criminal enterprise alleged against him, and that, as such, he knew that the representations made to the CBA were false, and he intended that the CBA be induced by those false representations to provide the financial lending facilities and hire purchase finance to the Viking Companies, that are the subject of each of the charges against him. In such a case, in which the prosecution relies essentially on inferences, the trial judge is not entitled to direct an acquittal where at the end of the prosecution case he considers that there is still open, and not excluded, a reasonable hypothesis consistent with innocence.[5]
[5]See Attorney-General’s Reference No 1, above, 416.
Rather, in such a case, the test, that the trial judge must apply, is whether the jury could rationally conclude that any inference or hypothesis, consistent with innocence, is not reasonably open on the evidence. In applying that test, it is important to bear in mind that the drawing of inferences is essentially the function of the jury, as the sole judges of the facts in the trial.[6]
[6]R v Cengiz (1998) 3 VR 720, 721 (Ormiston JA), 735 (Harper AJA).
Those principles were conveniently summarised by King CJ of the Court of Criminal Appeal of South Australia in a case stated by DPP (No 2) of 1993[7] as follows:
If there is direct evidence which is capable of proving the charge, there is a case to answer no matter how weak or tenuous the judge might consider such evidence to be. If the case depends upon circumstantial evidence, and that evidence, if accepted, is capable of producing in a reasonable mind a conclusion of guilt beyond reasonable doubt and thus is capable of causing a reasonable mind to exclude any competing hypotheses as unreasonable, there is a case to answer. There is no case to answer only if the evidence is not capable in law of supporting a conviction. In a circumstantial case that implies that even if all the evidence for the prosecution were accepted and all inferences most favourable to the prosecution which are reasonably open were drawn, a reasonable mind could not reach a conclusion of guilt beyond reasonable doubt, or to put it another way, could not exclude all hypotheses consistent with innocence, as not reasonably open on the evidence.
[7](1993) 70 A Crim R 323, 327.
The evidence of the role of Peter Iliopoulos in the Viking Group
Before considering the submissions made by Mr Glynn in relation to each of the charges, it is convenient, first, to review briefly the evidence relating to the general role of Peter Iliopoulos in the Viking Group of Companies.
The evidence, that has been so far adduced in the trial, establishes that Peter Iliopoulos did not play any part in the strategic or decision making functions of the Viking Group of Companies, or in the compilation or review of the financial accounts of the Group. Rather, his role, it would seem, was very much to be mentored by, and learn from, Bill Bariamis, about the conduct and functioning of the companies. The evidence establishes that Peter Iliopoulos was only appointed a director of the Viking Group of Companies in 2010, because it was apprehended that his father, Steve Iliopoulos, might become bankrupt. It was not intended, by his appointment as a director, that Peter Iliopoulos be invested with any decision making role in the Viking Companies. Further, the evidence makes plain that he had little or no knowledge of the financial functioning of the business, and that he was expected to, and did, sign documents put before him without perusing or examining them.
Roslyn Ticknell-Best has been an account manager of the Commonwealth Bank since 2007. Her role has involved her assisting the relationship executive in dealing with commercial clients who have a turnover in excess of $2,000,000 per annum. In that capacity Ms Ticknell-Best was involved as an account manager relating to the Viking account of the CBA from October 2008.
Ms Ticknell-Best stated that in May 2010 it came to the bank’s attention that Peter Iliopoulos had taken up the position of director of the main companies in the Group. Accordingly, it was expected that he would sign the documents relating to the grant of finance and facilities by the CBA to Viking. In cross-examination, she stated that one of the agreements that Peter Iliopoulos was required to sign (a master agreement dated 28 April 2010 for Viking Asset Management) in fact constituted the documentation of an agreement that had been made between the parties in 2009 to increase the equipment finance facility of that company by $5,000,000.
Barry Heib was the relationship manager at the CBA responsible for the management of the Viking Group of accounts between late 2008 and late 2010. In that capacity, Mr Heib was closely involved in the negotiation for, and formulation of, the agreements by the Commonwealth Bank to grant financial lending facilities to the Viking Group that are the subject of charges 4, 6 and 8. In cross-examination, Mr Heib stated that his perception was that Peter Iliopoulos had no influence over the financial applications that were made to the bank, and over the business of the Viking Group. He did not recall having any conversation with Peter Iliopoulos about the business of the Viking Group of Companies during the two years in which Mr Heib managed the Viking Group portfolio. On 27 October 2010, representatives of the Viking Group and the bank met to complete the signing of a large number of documents relating to the decision to grant the finance package to the Viking Group that was the subject of charge 8. Mr Heib stated that Peter’s sole role at that meeting was to sign the documents presented to him.
Mr Gerrit Knauth took over the position of Mr Heib as the relationship manager of the Viking Group portfolio in November 2010. He was involved in the negotiation for the financial lending facilities that are the subject of charges 8 and 14. In cross-examination, he stated that he had very little to do with Peter Iliopoulos in the course of his involvement with the Viking Group. He said that Peter Iliopoulos did not contribute at all to any meeting which he attended. Peter Iliopoulos was not involved in any private conversations or discussions with Mr Knauth about the business. It was the perception of Mr Knauth that he was not part of the management group of the Viking Group.
Malcolm Bull was, at the relevant time, the head of the corporate banking division of the Commonwealth Bank in the Dandenong area. Mr Bull was involved in negotiations between the CBA and the Viking Group for the increase in financial lending facilities that is the subject of charge 8. In December 2010, Mr Bull and Mr Knauth attended the offices of Viking for the signing of the business facility document that is the subject of charge 14. Mr Bull stated that Peter Iliopoulos’s sole role at that meeting was to sign the document that was put before him.
A similar account, of Peter Iliopoulos’s function in the Viking Group, was given by witnesses who worked for the group at the relevant time. Carly Hartley was employed, under Loukia Bariamis, in the accounting section of the Viking Group from 2008 until 2011. In cross-examination, Ms Hartley stated that all of her work activities were directed by Loukia Bariamis. She only spoke to Peter Iliopoulos on social matters, and she never spoke with him on work related matters. Natalie Rompotis was employed by Viking as in-house counsel between September 2008 and April 2011. She said that Peter Iliopoulos’s role was to be mentored by Bill Bariamis on the corporate side of the business.
Michael Duckworth was the general manager of Viking Transport and Logistics Pty Ltd after the predecessor of that company, MI Logistics, was taken over by the Viking Group in 2008. Viking Transport and Logistics was principally concerned with providing warehousing facilities to the Viking Group and to its customers. Mr Duckworth’s principal contact with the Viking Group was with Bill Bariamis. Mr Duckworth stated that during his time with Viking, he had little to do with Peter Iliopoulos. He said that from time to time Peter might telephone him with inquiries concerning the information technology aspects of the business. Otherwise, Peter was working closely with Bill Bariamis, and was being educated by Bill Bariamis in relation to the marketing and corporate side of the business.
Mr Mark Hooper, who was the warehouse manager of Viking Transport and Logistics at its Altona premises, described Peter Iliopoulos’s role in similar terms. He said that Peter Iliopoulos was normally with Bill Bariamis, who appeared to have taken Peter Iliopoulos under his wing to teach him about how the business worked.
Finally, Loukia Bariamis, in cross-examination, stated that Peter Iliopoulos had no education in finance and he never had anything to do with that part of the Viking Group’s operations. She said that Peter Iliopoulos did not seem to have any particular understanding of financial matters. The ultimate objective was that he and his brother Jimmy would take over the running of the Viking Group. Accordingly, he was to be mentored by Bill Bariamis at the head office. He was given some minor tasks to carry out, such as organising the record keeping in relation to the fuel used by Viking Group drivers. Otherwise, his role was to learn the functioning and management of the business.
Loukia Bariamis further stated that, in 2010, Peter Iliopoulos became a director of the key Viking Company. Although that was part of the long term succession plan for Peter and his brother Jimmy, the plan was brought forward when judgment was given against Steve Iliopoulos in litigation with Perth Freightlines. As a result, it was apprehended that Steve Iliopoulos might be made bankrupt, and it was for that reason that the plans were brought forward to make Peter Iliopoulos a director of the company. Nevertheless, he did not make any business decisions. Ms Bariamis stated that Peter Iliopoulos’s sole role was to sign documents for companies that were put before him. Accordingly, he would sign documents that she put before him without asking any questions. Loukia Bariamis stated that she did not discuss with Peter Iliopoulos the false documents that she generated for the purpose of obtaining financial facilities and funding from the bank. She said that there was no need at all for him to know what she was doing relating to the fabrication of the debtors ledgers. Rather, his sole role was to sign the documents that were put before him.
Charges 8 and 14
It is convenient, first, to deal with the no case submission relating to charges 8 and 14. I turn first to charge 8.
That charge alleges that Steve Iliopoulos, Bill Bariamis and Peter Iliopoulos, together with Loukia Bariamis, on or about 5 October 2010 dishonestly obtained financial lending facilities from the CBA to a number of companies in the Viking Group by deception. The particulars to the charge allege that the deception comprised three false representations, namely: first, that the aged debtors trial balance for Perth Freightlines Pty Ltd, for Viking Fleet Services Pty Ltd, and for Viking Transport and Logistics Pty Ltd each contained true and correct details of the debts owing to those companies (particulars (a) to (c)); secondly, that Viking Fleet Services Pty Ltd was the exclusive supplier of heavy maintenance services to Aldi stores in Victoria (particular (d)); and, thirdly, that Viking Towing and Salvage Pty Ltd had a credit balance of $5,950,000 with the Australian Taxation Office as at 18 August 2010 (particular (e)).
By way of background to the charge, the CBA had previously, in June 2009, agreed to increase the financial facilities available to the Viking Group of Companies by $12.15 million. That increase is the subject of charge 6 (against Steve Iliopoulos) on the indictment. Subsequently, the bank was required to permit a number of temporary excesses over and above the agreed limit of those facilities, because of the ongoing cash flow difficulties experienced by the Viking Group. Ultimately, in October 2010, it acceded to a further application by the Viking Group for an additional increase of $13.9 million to its financial facilities. It is that increase that is the subject of charge 8.
During June and July of 2010, a number of meetings took place between the bank officers and executives of the Viking Group relating to the cash flow problems experienced by the Viking Group. Evidence was given as to three particular meetings, on 17 June, 30 June and 22 July, concerning that matter. Peter Iliopoulos attended the third meeting, on 22 July. At that meeting a document, entitled ‘Viking Group Divisional Strategic Overview 2010 to 2011’, was presented to the CBA members. The document is 22 pages in length. On page 5, it contained the statement:
The Aldi contract is of particular interest, as VFS is now the exclusive supplier of heavy vehicle maintenance services to the retailer for Victoria. Aldi has recently contracted VFS to provide services in Dandenong, alongside a new 100,000 square metre Aldi facility, in addition to its use of the Altona VFS facility.
It is that statement, in the strategic overview document, that is the subject of particular (d) to charge 8.
On 19 August 2010, Loukia Bariamis sent to Barry Heib and Roslyn Ticknell-Best an email attaching a document purporting to be an extract of the tax portal of Viking Towing and Salvage Pty Ltd, which contained a closing balance of a credit by the Australian Taxation Office to the company of $5,950,000. In her evidence, Loukia Bariamis stated that she constructed that document. In particular, she downloaded a copy of the Australian Tax Office portal for Viking Towing and Salvage, altered that document, and then sent the altered document to Mr Heib and Ms Ticknell-Best.
Charge 14 alleges that Steve Iliopoulos, Bill Bariamis and Peter Iliopoulos, together with Loukia Bariamis, on or about 26 November 2010 dishonestly obtained financial lending facilities from the CBA to Viking Asset Management Pty Ltd by deception. It is alleged that the deception consisted of the three aged debtors trial balances for Perth Freightlines Pty Ltd, Viking Fleet Services Pty Ltd and Viking Transport and Logistics Pty Ltd, that are the basis of the first representation relied on by the prosecution in respect of charge 8.
Following the provision of the additional financial facilities in October 2010, that are the subject of charge 8, the Viking Group continued to experience cash flow problems. As a result, the CBA was required to allow further temporary excesses additional to the credit limits that were agreed in October. On 17 November 2010, a meeting took place at Docklands attended by Steve Iliopoulos, Bill Bariamis, Peter Iliopoulos and Loukia Bariamis, of the Viking Group, and by Gerrit Knauth, Brendan Barry-Murphy, Malcolm Bull and Barry Heib of the CBA. At the meeting Mr Barry-Murphy, who was in charge of the credit managers for the relevant group in the CBA, gave indicative approval for an increase in the credit facilities of $4 million. That approval was granted on the basis of the information provided to the CBA on the basis of which the previous credit approval was granted in October (that is the subject of charge 8). Subsequently, the increase was formalised by the execution of documentation on 1 December 2010. That increase in the credit facilities is the subject of charge 14.
Submissions: charges 8 and 14
Mr Glynn commenced his submissions by noting that there is no allegation that Peter Iliopoulos himself made any of the representations that are the subject of charges 8 and 14. Therefore, the question, whether he was criminally complicit to the making of those representations, involves questions as to whether he was intentionally a party to the making of the representations to the CBA by other members of Viking, and whether he was aware that those representations were false.
Mr Glynn submitted that, on the evidence, the jury would be obliged to conclude that Loukia Bariamis provided to the CBA the aged debtors trial balances, that are the subject of particulars (a), (b) and (c) to charges 8 and 14, and the tax portal document, that is the subject of particular (e) to charge 8. Mr Glynn submitted that there is no basis upon which a jury could conclude that Peter Iliopoulos was a party to, or even aware of, the false representations contained in those documents.
In respect of particular (d) of charge 8, Mr Glynn noted that Peter Iliopoulos was present at the meeting on 22 July when, according to Mr Knauth, Bill Bariamis ‘walked’ those present at the meeting through the ‘strategic overview’ document which contained the representation relating to Aldi, and which is the subject of particular (d) to charge 8. However, Mr Knauth stated that, in doing so, Bill Bariamis told the CBA representatives that Viking Fleet Service ‘was establishing a connection with Aldi in Dandenong and was starting to service Aldi trucks at a Dandenong facility for the group’. Mr Glynn submitted that the oral representation, made in the meeting by Bill Bariamis, is not the representation alleged in particular (d) to charge 8. Further, the representation, in any event, was not entirely false, but, rather, contained a slight exaggeration. On the evidence presented at trial, discussions had taken place between Aldi and Viking Fleet Service relating to the latter establishing a service depot at Dandenong South in close proximity to the new store established by Aldi, with a view to Viking Fleet Service being in a position to provide maintenance services at the Aldi store.
Further, Mr Glynn submitted that, in any event, the evidence is not capable of establishing that Peter Iliopoulos knew of, or was aware of, the contents of the strategic overview document. Accordingly, he submitted that there is no evidence that Peter Iliopoulos was a party to the making of the representation alleged in particular (d) to charge 8.
Finally, Mr Glynn submitted that the fact that Peter Iliopoulos signed the financial facility documents for the provision of the facilities, that are the subject of charges 8 and 14, did not give rise to any relevant inference against his client. In particular, the evidence of Loukia Bariamis, Malcolm Bull and Gerrit Knauth was to the same effect, namely, that Peter Iliopoulos signed documents that were put before him, without reading those documents, or having them explained to him.
In response, Mr Brown mainly focused on the representation that was alleged to have been made relating to Aldi, that is the subject of particular (d) to charge 8. He did submit, albeit briefly, that because the strategic overview document contained an exaggeration as to the business that Viking conducted with Linfox, Peter Iliopoulos would have been aware that the amount of debt, recorded as being owed by Linfox to Perth Freightlines, in the aged debtor trial balances, was false. However Mr Brown correctly accepted that that submission was not particularly strong, and could not overcome the competing inference that Peter Iliopoulos was not aware of the contents of the aged debtor trial balances that were presented to CBA and which were part of the material on which the bank relied to provide the finance that is the subject of charges 8 and 14.
In relation to the representation about Aldi contained in the strategic overview document, Mr Brown submitted that the jury would be entitled to conclude that because Bill Bariamis prepared that document, Peter Iliopoulos himself was aware of its contents, including the untrue statement in it that Viking Fleet Services Pty Ltd was the exclusive supplier of heavy vehicle maintenance services to Aldi stores in Victoria. Mr Brown stated that the document was presented to CBA representatives at the meeting on 22 July, which was attended by Peter Iliopoulos. He further submitted that, as Peter Iliopoulos was being mentored with a view to becoming ultimately the chief executive officer of the Viking Group, the jury would be entitled to infer that he was aware of the identity of the major customers of the Viking business.
Conclusion concerning charges 8 and 14
In my view, the submissions by Mr Glynn are correct, and they should be upheld.
There is no evidence that Peter Iliopoulos made any of the representations that are alleged in charges 8 and 14. Rather, the prosecution case is presented on the basis that Peter Iliopoulos is guilty of those two charges, because he was engaged in a joint criminal enterprise to obtain financial lending facilities for the Viking Group of Companies by making the false representations alleged in the charges. In essence, to establish the guilt of Peter Iliopoulos on those charges, the prosecution must prove beyond reasonable doubt, inter alia, that Peter Iliopoulos was intentionally a party to the making of the representations to the CBA, that he was aware that those representations were false, and that he intended that those false representations be made for the purpose of obtaining the financial lending facilities from the CBA for the Viking Group of Companies.
There is no direct evidence as to how the aged debtor trial balances, that are the subject of particulars (a), (b) and (c) in charges 8 and 14, were provided to the CBA. Roslyn Ticknell-Best stated that the loans, that are the subject of charges 8 and 14, were approved on the basis of documents provided by Viking, including those aged debtor trial balances. Barry Heib, in his evidence in chief, was unable to say whether those documents were on the bank file at the time of the application for financial facilities that is the subject of charge 8. In re-examination, he was provided with the bank file, and confirmed that those documents were in fact on the bank file at that time. Gerrit Knauth stated that if the aged debtor trial balances on the bank file had been inflated by millions of dollars, then the bank would have requested an investigative accountant to review Viking’s business, and would not have advanced any further funds to it.
Loukia Bariamis in her evidence did not specifically state that she herself provided the aged debtor trial balances to the bank. However, it is clear from her evidence, and the evidence of all the other witnesses in the case, that Loukia Bariamis was responsible for the compilation and production of those documents. In particular, the evidence of Loukia Bariamis, Carly Hartley and Frances Lake is that Loukia Bariamis tightly controlled the compilation of the documents, and was the person who was responsible for the fabrication and exaggeration of the balances contained in them.
Based on that evidence, there is no evidentiary basis at all that could properly form the foundation of any inference that Peter Iliopoulos was in any relevant sense a party to the provision of the aged debtor trial balances by the Viking Group of Companies to the CBA, and that are the subject of charges 8 and 14 on the indictment. Indeed, on the evidence, there is a strong inference to the contrary, namely, that Peter Iliopoulos did not, in any relevant sense, participate in, or be a party to, the provision of those documents to the bank.
Nor is there any evidence from which the jury could infer that Peter Iliopoulos knew that the debtor details, contained in the aged debtor trial balances, were false or fabricated. The evidence, in relation to that issue, is very much to the contrary. It is clear from the evidence that Loukia Bariamis tightly controlled the compilation and production of those documents, and of all the Viking accounting and financial documents. She only permitted Viking employees to have limited access to the financial accounts and data. That evidence militates strongly against any inference that, in some way, Peter Iliopoulos was made aware of the falsity of the aged debtor trial balances presented to the CBA.
As I have noted, the representation that is the subject of particular (d) to charge 8 — that Viking Fleet Services Pty Ltd was the exclusive supplier of heavy vehicle maintenance services to Aldi stores in Victoria — was contained in the strategic overview document that was provided to the CBA before or at the meeting of 22 July, that was attended by Peter Iliopoulos. There is no evidence that Peter Iliopoulos was a party to the compilation of that document, or to the provision of it to the bank. Nor is there any evidence upon which the jury could conclude that Peter Iliopoulos read, or was aware of, the representation relating to Aldi stores contained in that document. The fact that Bill Bariamis prepared the document, and was the mentor of Peter Iliopoulos, would not, in my view, permit the jury to conclude, beyond reasonable doubt, that Peter Iliopoulos read it in its entirety, and noted each piece of information contained in that document. Rather, given the limited role of Peter Iliopoulos in the business of Viking at the time, the jury could not exclude the inference that either Peter had not read the document at all, or, if he did so, he had not noted the one sentence, contained in that document, relating to Aldi stores.
In this respect, the prosecution relies substantially on the presence of Peter Iliopoulos at the meeting of 22 July. However, the evidence of the CBA witnesses, who attended that meeting, is of little assistance to the prosecution case in that respect. Barry Heib did not appear to give any evidence relating to the presentation of the document at the meeting. He stated that the document did form part of the basis of the loan application. If he had known that the representation in it relating to Aldi (and to other alleged customers of Viking) was false, he would not have recommended the further facility. As noted by Mr Glynn, Mr Knauth, stated that at the meeting of 22 July, Bill Bariamis talked to each of the points contained in the divisional strategic overview document, and stated that Viking Fleet Services was establishing a connection with Aldi in Dandenong and was starting to service Aldi trucks at a Dandenong facility for the group.
That representation, made by Mr Bariamis at the meeting, is not the representation that is the subject of charge 8. In any event, the fact that Peter Iliopoulos was present at the meeting, while Bill Bariamis talked about the document, could not be sufficient to establish that Peter Iliopoulos was knowingly and intentionally a party to the presentation of the false information contained in the document, about Aldi, to the CBA. First, it is not clear that Bill Bariamis actually referred to the particular sentence in the document that is the basis of particular (d) to charge 8. Secondly, and in any event, the evidence as to the general role of Peter Iliopoulos at that time, to which I have referred earlier, gives rise to a reasonable inference that, at all material times, his role , in attending meetings such as that which occurred on 22 July, was to learn and further his mentoring by Bill Bariamis. There is no evidence, relating to that meeting, or otherwise, that could, in my view, permit a jury to rationally conclude that that inference is excluded in relation to the circumstances in which Peter Iliopoulos attended the meeting of 22 July. Indeed, and to the contrary, the evidence is that Peter Iliopoulos played no active role in the meeting, and that his sole function was to attend it as part of the ongoing process by which he was becoming educated in the business of the Viking Group.
Finally, the evidence is clear that the tax portal document, that is the subject of particular (e) to charge 8, was constructed solely by Loukia Bariamis, who then forwarded it to Barry Heib by email dated 19 August 2010. There is no evidence upon which a jury could conclude, or infer, that Peter Iliopoulos was a party to, or even knew of, the fabrication of that document, and the provision of it by Loukia Bariamis to the bank.
For the reasons that I have set out, it follows that there is no evidence upon which a jury could lawfully conclude, beyond reasonable doubt, that Peter Iliopoulos is guilty of the offences charged in counts 8 and 14 on the indictment. Accordingly there is no case for Peter Iliopoulos to answer in respect of those two charges.
Charges 9 to 13
Charges 9 to 13 each allege that Steve Iliopoulos and Peter Iliopoulos, between 29 October 2010 and 18 November 2010, dishonestly obtained for Viking Asset Management, hire purchase finance from the Commonwealth Bank by deception. The charges arise out of an agreement between the CBA and the Viking Group in October 2010, that Viking be permitted to re-finance with CBA vehicles and equipment that it had already purchased out of its current capital. The purpose of that agreement was to alleviate the cash flow difficulties which were continuing to affect the Viking Group. As a result of that agreement, Viking proceeded to enter into five hire purchase agreements with the CBA in respect of equipment and vehicles that Viking had already acquired. The contractual documentation, relating to the provision of that finance by CBA, was signed by Peter Iliopoulos as a director of Viking Asset Management.
In essence, charges 9 to 13 allege two types of false representations that were made by Steve Iliopoulos and Peter Iliopoulos to the bank for the purpose of obtaining the hire purchase finance. First, it is alleged that the accuseds represented to the CBA that the equipment and vehicles had been purchased by Viking Asset Management from Knights Motors Pty Ltd. In particular, each charge alleges that the accuseds provided false tax invoices purporting to have been issued by Knights Motors to Viking Asset Management in respect of the vehicles and equipment. In addition, Peter Iliopoulos signed a hire purchase schedule in respect of each agreement which listed those vehicles. Charges 11, 12 and 13 also allege a representation contained in an email from Loukia Bariamis to Kevin Brunt dated 28 October 2010, that was copied (inter alia) to Steve Iliopoulos and Peter Iliopoulos. That email (exhibit CK) contained a short letter from ‘George — Knights’ which, in turn, attached a letter that purported to be from George Stathakis for Knights Motors Pty Ltd. That letter stated that the particular Knights Motors invoices, which were attached to the letter, had been paid in full by Viking Asset Management.
The second representation, which is alleged in charges 9, 10 and 12, was contained in statutory declarations made by Peter Iliopoulos in support of the applications for hire purchase finance. Those statutory declarations stated (inter alia) that there was no existing lease or hire purchase finance in respect of the goods that were the subject of the proposed finance agreement with CBA.
Submissions on charges 9 to 13
Mr Glynn submitted that there is no evidence that Peter Iliopoulos created any of the false Knights Motors invoices that are the subject of charges 9 to 13. Although Peter Iliopoulos signed the hire purchase finance agreements, it could not be inferred, from that fact, that he was aware of the false documents that were used to obtain the finance for the equipment. Mr Glynn submitted that there is evidence suggesting that at least one of the statutory declarations, signed by Peter Iliopoulos, was in any event altered, probably by Loukia Bariamis, after he had signed the document.
Mr Glynn also pointed out that, at the relevant time, the Viking Group owned a large amount of equipment and trucks. There was no aspect of Peter Iliopoulos’s role in the Viking Group that could give rise to an inference that he must have known about the provenance of the items of equipment that are the subject of charges 9 to 13. Further, there is no evidence that any documentation was provided, or shown, to Peter Iliopoulos, other than the hire purchase contractual documents that he was required to sign. On the contrary, it would seem from the evidence that the Knights Motors invoices were required to be provided to the bank, before the contractual documentation was compiled and signed.
Mr Glynn further submitted that there is no evidence that Peter Iliopoulos was ever aware of the false Knights Motors invoices that are the subject of charges 9 and 10. Those invoices were sent to the CBA by email, and Peter Iliopoulos was not copied into those emails.
As I have already noted, the Knights Motors invoices, and the letter that purported to be authored by George Stathakis, that are the subject of charges 11 to 13, were sent by email dated 28 October 2010 by Loukia Bariamis to Kevin Brunt, of the CBA. Peter Iliopoulos was copied into that email. In addition, Kevin Brunt sent an email to Bill Bariamis dated 11 November 2010, copying Peter Iliopoulos (exhibit DT), referring to the Hyster vehicle, that is the subject of charge 13, as having come ‘through Knights Motors from the auction house’.
Mr Glynn conceded that those two pieces of evidence might permit a weak inference that there was knowledge by Peter Iliopoulos of those matters relating to charges 11 to 13. However, he submitted that that inference was not sufficiently strong that it could exclude a reasonable inference to the contrary, namely, that Peter Iliopoulos was not made aware, by those documents, of the fact that Viking was falsely claiming that the equipment, that is the subject of charges 11 to 13, had been acquired from Knights Motors. In particular, Mr Glynn submitted that it could not be safely concluded that Peter Iliopoulos read either email, as they were not addressed to him. In particular, it could not be properly concluded that Peter Iliopoulos must have downloaded and read the attachments contained in the email by Loukia Bariamis to Kevin Brunt dated 28 October (exhibit CK). Nor could it be safely concluded that, if he had noted the contents of those documents, Peter Iliopoulos must necessarily have drawn a connection between those documents and the loan agreements that he was required to sign in respect of each charges 11, 12 and 13. Further, Mr Glynn submitted that there was no evidence about the knowledge of Peter Iliopoulos of the nature of the business conducted by Knights Motors, or as to whether anyone associated with that business held a current licence motor car trader number.
In response, Mr Brown submitted that charges 9 to 13 should be considered together. The hire purchase finance, that was the subject of those charges, arose from the agreement by CBA to provide a further financial facility to Viking Asset Management Pty Ltd of $3.5 million to enable it to finance the equipment that that company had already purchased out of its capital reserves. The five hire purchase agreements, that are the subject of the charges, were intended to form part of a process by which Viking re-financed, with the CBA, the equipment that it had purchased in that way.
Mr Brown particularly relied on the email by Loukia Bariamis to Kevin Brunt dated 28 October (exhibit CK), and that was copied (inter alia) to Peter Iliopoulos. He noted that the text of the email is short. In its first line, it refers to Knights Motors. At the foot of the page, as part of the email trail, is a short email from ‘George — Knights’. Mr Brown submitted that the prominent nature of the reference to Knights Motors is such that a jury could reasonably conclude that Peter Iliopoulos opened the email, and noted that reference. Further, he submitted that the jury could conclude that Loukia Bariamis would not have copied Peter Iliopoulos into the email chain, if he was not aware that Viking was falsely representing to the CBA that the equipment, that was the subject of the hire purchase agreements, had been acquired by Viking from Knights Motors. In addition, Mr Brown relied on the email from Kevin Brunt to Bill Bariamis dated 11 November 2010, that was copied to Peter Iliopoulos (exhibit DT), and that referred to the equipment, that is the subject of charge 13, as having been purchased from Knights Motors.
Conclusions on charges 9 to 13
In my view, there is clearly no case for Peter Iliopoulos to answer in respect of charges 9 and 10. The hire purchase agreements, that are the subject of those two charges, were signed by Peter Iliopoulos on 27 October, one day before the date of the email by Loukia Bariamis to Kevin Brunt (exhibit CK), that is primarily relied on by the prosecution in support of its case on charges 9 to 13. There is no evidence that Peter Iliopoulos knew that those two hire purchase agreements were based on invoices, that purported to be those of Knights Motors, provided by the Viking Group to the CBA. In the case of each hire purchase agreement signed by Peter Iliopoulos, the hire purchase schedule did not refer to those invoices, nor to the identity of the supplier of the equipment that was the subject of the agreement. Thus, there is no evidence that before Peter Iliopoulos signed the hire purchase agreements that are the subject of charges 9 and 10, he knew that a representation had been made by Viking to CBA that the equipment, the subject of those agreements, had been acquired by Viking from Knights Motors.
In respect of charges 11, 12 and 13, as conceded by Mr Glynn, there is some evidence to suggest that Peter Iliopoulos might have been aware that it had been represented by the Viking Group to the CBA that the equipment, the subject of the hire purchase agreements in each charge, had been sourced from Knights Motors. However, that evidence is quite tenuous, and, in my view, could not rationally exclude the competing inference, consistent with innocence, that Peter Iliopoulos was not aware of that circumstance.
First, there is no evidence that Peter Iliopoulos downloaded or read the email by Loukia Bariamis to Kevin Brunt dated 28 October 2010 (exhibit CK). Peter Iliopoulos was one of eight different persons who are listed as having been copied in on that email. The subject of the email is ‘FW: letter and invoices’. That title to the email is not one which would necessarily attract the attention of a person who had been copied in on it. The nature of the email, and the circumstances in which it was sent by Loukia Bariamis to Kevin Brunt, are not capable of excluding the competing inference that Peter Iliopoulos did not download or read the email.
Further, and in any event, if the jury could infer that Peter Iliopoulos did download and read the email, in my view it would not be open to the jury to conclude, as the only reasonable inference, from the contents of the email, that it would have made him aware that the documents and invoices, referred to in it, related to the vehicles and equipment that were the subject of the hire purchase agreements signed by Peter Iliopoulos and that are the basis of charges 11, 12 and 13.
Those agreements were signed by Peter Iliopoulos, in the case of charge 11, on 6 November (nine days after the date of the email), in the case of charge 12, on 9 November (12 days after the date of the email), and, in the case of charge 13, on 16 November (19 days after the date of the email). The evidence establishes that at that time the Viking Group was acquiring, and financing on hire purchase, a large quantity of trucks and equipment. In those circumstances, I do not consider that the jury could rationally exclude the competing inference, namely, that if Peter did download and read the email of 28 October, he did not understand it to refer to the vehicles that were the subject of the hire purchase agreements alleged in charges 11, 12 and 13.
The email by Kevin Brunt to Bill Bariamis dated 11 November 2010 (exhibit DT) does not advance the prosecution case in that respect. First, that email could only be relevant in relation to charge 13, as the date of the email is subsequent to the execution of the hire purchase agreements that are the subject of charges 11 and 12. Further, there is no evidence that Peter Iliopoulos read the email, as a person copied into it. Thirdly, as Mr Glynn has pointed out, the email by Mr Brunt asked Bill Bariamis to confirm that the Hyster had been acquired by the Viking Group from the Knights Motors Auction House. There is no evidence as to what response , if any, Bill Bariamis made to the email, and as to whether Peter Iliopoulos was copied into, or cognisant of, that response. As noted by Mr Glynn, the email relied on by the prosecution simply asked a question. In my view, the jury could not reasonably conclude, as the only inference open to it, that as a result of that email, Peter Iliopoulos was aware that the hire purchase agreement, that he signed on 16 November (and that is the basis of charge 13), was the result of a representation made by the Viking Group to the CBA that the Hyster equipment had been purchased by Viking Asset Management from Kevin Brunt.
Thus, the evidence relied on by the prosecution, in relation to charges 11 to 13, against Peter Iliopoulos, is tenuous. That is particularly so in light of the general evidence relating to the limited role of Peter Iliopoulos in the Viking Group of Companies at the time at which he signed the hire purchase agreements, that are the subject of charges 9 to 13. To repeat, Peter Iliopoulos did not play any decision making role in respect of the acquisition of the equipment, the financing of it, or the terms on which it was to be financed. His sole role, at that time, was to execute the documents placed before him in his capacity as a director of Viking Asset Management Pty Ltd. The limited nature of Peter Iliopoulos’s role, in that respect, strengthens the inference against the prosecution, that he did not know of, or intentionally be a party to, the false representations made to CBA, on the basis of which the hire purchase agreements were entered into by the CBA, and that are the subject of charges 9 to 13. Based on those matters, I do not consider that the jury could rationally exclude that inference as being reasonably open on the evidence.
For those reasons, there is no evidence upon which a jury could lawfully conclude, beyond reasonable doubt, that Peter Iliopoulos is guilty of the offences charged in counts 9 to 13 on the indictment.
Summary of conclusions
For the reasons that I have set out in this ruling, I have concluded that there is no evidence upon which a jury could lawfully conclude, beyond reasonable doubt, that Peter Iliopoulos is guilty of any of the offences charged against him on the indictment, namely, in charges 8 to 14. Accordingly, there is no case for Peter Iliopoulos to answer in respect of any of those charges. It follows that, pursuant to s 241(2) of the Criminal Procedure Act, I shall discharge the jury from delivering a verdict on any of the charges against Peter Iliopoulos, and instead direct that an entry of not guilty be made on the record in respect of each of those charges.
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