Gorgis v The Queen

[2021] NSWCCA 31

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Gorgis v R [2021] NSWCCA 31

Hearing dates:

31 August 2020

Decision date:

15 March 2021

Before:

Hoeben CJ at CL at [1]
Button J at [2]
N Adams J at [99]

Decision:

(1)   Leave to appeal against conviction granted.

(2)   Appeal against conviction dismissed.

Catchwords:

CRIME — dishonestly obtain financial advantage by deception — plea of guilty entered and agreed facts signed whilst represented — co-accused in joint criminal enterprise acquitted by direction at subsequent trial — application for withdrawal of guilty plea refused — where guilty plea said to be entered for convenience and not genuine consciousness of guilt — asserted defect in Crown case with regard to causation

Legislation Cited:

Crimes Act 1900 (NSW), s 192E

Criminal Appeal Act 1912 (NSW), s 6

Cases Cited:

Director of Public Prosecutions Reference No 1 of 2017 [2019] HCA 9; 93 ALJR 424

Meissner v the Queen (1995) 184 CLR 132; [1995] HCA 41

R v Ho (1989) 39 A Crim R 145

R v Prasad (1979) 23 SASR 161

R v SL [2004] NSWCCA 397

R v Thalari (2009) 75 NSWLR 307; [2009] NSWCCA 170

Wong v DPP (NSW) [2005] NSWSC 129; (2005) 155 A Crim R 37

Category:

Principal judgment

Parties:

Alan Gorgis (Applicant)
Regina (Respondent)

Representation:

Counsel:
D Edwardson QC with N Mikhaiel (Applicant)
M Millward (Respondent)

Solicitors:
Michael Abboud and Co (Applicant)
Director of Public Prosecutions (Respondent)

File Number(s):

2015/90383

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

11 October 2019

Before:

Flannery SC DCJ

File Number(s):

2015/90383

Judgment

1. HOEBEN CJ at CL:  I agree with the Button J and the orders which he proposes.

2. BUTTON J:

Introduction

3. This is an application for leave to appeal against conviction by Mr Alan Gorgis (the applicant) in relation to the offence of dishonestly obtaining a financial advantage by deception, contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW).

4. Although the applicant pleaded guilty to the offence whilst represented, and signed an agreed statement of facts that was tendered in the proceedings on sentence and that set out evidence of the elements of the offence, the submission is that the conviction constitutes a miscarriage of justice, and should therefore be quashed.

5. In short, that is said to be because: first, the plea of guilty was in truth one of convenience, and was not founded on a real acceptance of guilt; secondly, the Crown case was irretrievably flawed in any event, in that an essential element could not be proven; and thirdly, the subsequent acquittal by direction at trial of two co-accused demonstrates that the applicant should also not have been convicted.

The Crown case

6. The following summary of the Crown case against the applicant is derived from the agreed facts signed by the applicant and his lawyer, to which I have referred above. I shall explain later the way in which the applicant submitted that the Crown case changed significantly.

7. Bearing in mind the subsequent acquittals of two of the persons to be mentioned, the allegations of the Crown should be read whilst giving both of them the full benefit of the presumption of innocence.

8. Between 23 January 2014 and 14 June 2014, a number of persons took part in a joint criminal enterprise to deceive Westpac Banking Corporation into advancing a home loan of $760,000 to Ms Tamara Moore, on the basis of documents that were known by those persons to be false.

9. A number of false representations were made: that Ms Moore was employed as a sales manager by a concreting company; that she was earning over $80,000 per year; and that she had over $250,000 saved in two separate bank accounts.

10. The loan was duly advanced, and it comprised 80% of the purchase price of a piece of real property in a suburb of Sydney.

11. At the relevant times, the applicant was a mortgage broker. He was friends with another mortgage broker, Mr Joe Haddad. Mr Koshan Rashidi was in contact with the applicant. His wife was Ms Moore. As I have said, it was she who actually applied for and received the loan. The applicant referred Ms Moore and Mr Rashidi to Mr Haddad. Separately, Mr Bobi Monteleone was the manager of the concreting company at which Ms Moore falsely claimed to have been employed.

12. The Crown proposition was that Ms Moore presented documents to Westpac that were false in a number of ways, with the connivance of the applicant, Mr Rashidi, Mr Gorgis, Mr Haddad, and Mr Monteleone.

13. The Crown case was that the applicant was in touch with Mr Rashidi, as part of the business of the former as mortgage broker. There was discussion about the purchase of the real property. Mr Rashidi referred the applicant to Mr Monteleone. At the request of the applicant, Mr Monteleone emailed the applicant company details for the concreting company, including its address, contact details, ABN, and a copy of its letterhead. The applicant immediately forwarded that material to Mr Haddad.

14. The next day, in conversation with Mr Rashidi, the applicant said “[W]ages is not gonna cover… we have to do it as an investment property. Because the work is not too strong…” In the same conversation, the applicant said to Mr Monteleone “[Y]ou know, we can’t put too too too high wages you know… it’s better to do an investment property to cover with rentals, you know, income… it’s gonna cover the payments… just explain it to Kosh [Mr Rashidi] before I submit it… and I put the single as well…”.

15. The next day, the applicant told Mr Rashidi that “we” had submitted the application for the loan. He also told Mr Rashidi to tell Ms Moore “just in case your missus receives a call from Westpac. just to ask her if she knows about it”, to which Mr Rashidi replied that Ms Moore already did.

16. The matter having been referred by the applicant to Mr Haddad, the latter in his role as mortgage broker, completed the formal loan application form and signed it “on behalf of” Ms Moore. The Crown case (at the time of the preparation of the agreed facts) was that Mr Haddad forwarded documents prepared by the applicant to an employee of Westpac, Mr Cetin Huseyin, for his consideration and approval.

17. Westpac approved the loan “based upon the information supplied in the application form and attachments, which included but not limited to” the four purported attributes of Ms Moore: employment since August 2008 with the concreting company; annual income of over 80,000 per year; payslips demonstrating same; and declared savings of over $252,000.

18. According to the Crown case, in fact: Ms Moore was not and never had been employed at the concreting company; she had an annual income of a little over $16,000 from pensions and government allowances; she had about $4,000 in savings; she had gone through a form of marriage and was therefore not single; and, separately, the property was not in truth purchased for investment purposes.

19. In a nutshell, according to the Crown, Mr Rashidi was the organiser of the loan application, and he called upon the three other persons for assistance. The applicant provided advice to Mr Rashidi about how to maximise, dishonestly, the prospects of success of the loan application. Mr Monteleone provided the information about the concreting company to the applicant. Ms Moore accepted and signed the Westpac loan offer and signed the resultant mortgage documents.

20. As it happened, all loan repayments were paid as and when they fell due, and Westpac made no complaint about the matter to police. The Crown allegation focused upon the obtaining of the loan, not upon any ultimate pecuniary detriment to Westpac.

Some procedural developments, and trial of Ms Moore and Mr Rashidi

21. Mr Haddad, the mortgage broker to whom the applicant was said to have referred the matter, pleaded guilty, and in due course became a Crown witness.

22. On 4 August 2017, the appellant pleaded guilty to the offence. As I have said, he also signed the agreed facts; precisely when that was is unclear, because they are undated.

23. On 14 August 2017, Mr Monteleone, of the concreting company, also pleaded guilty.

24. I turn now to summarise the aspects of the trial of Ms Moore and Mr Rashidi that are relied upon in this application.

25. The trial commenced on 16 August 2017. Mr Huseyin, Westpac relationship manager, was called to give oral evidence in the Crown case. The following exchange occurred in examination-in-chief:

Q. We now have an idea of the application and the supporting documents that you received on 23 May 2014, when you then commenced the process and that you started to detail to the jury a few minutes ago, yes?

A. Correct.

Q. Did you, in processing the application, accept the details being provided to you, or not?

A. Yes, I did, and processed them.

Q. I don’t mean, just the application form, I mean each supported document, was that accepted as being true?

A. Yes.

26. In the course of cross-examination by senior counsel then appearing for Mr Rashidi (and who subsequently appeared for the applicant before this Court), the following exchange took place:

Q. Dealing with the CBA savings account of $182,000 and the NAB savings of account of $70,000, are they checked?

A. It’s not a bank requirement. When a person has 20% deposit and you’re not required to have what they call lender’s mortgage insurance on the loan, it’s not required to be checked.

Q. So it’s not required and no check was done?

A. Correct.

Q. Mr Haddad must have known that?

A. Yes he would know that because he didn’t have to provide evidence.

Q. So he would know that if he included, for example, inflated figures that might assist in the mortgage being processed by the bank, a check would not be done on either of those accounts?

A. Correct. If there’s no mortgage insurance no check is done and he is aware, yeah.

Q. The reason for that of course is, as we know, a 20—

A. And we can’t check another bank account anyway.

27. A little later, in cross-examination by counsel for Ms Moore, the following exchange took place:

Q. Now, as I understand it, provided there was a 20% deposit, there was no need for you personally to do any checks as to the legitimacy of the information that went into that loan?

A. What do you mean by that?

Q. Firstly, supporting documentation, so payslips and rental appraisal?

A. Whether it’s 20% or 95%, the requirements as far as payslips were the same.

Q. So any—

A. The only thing you need to provide if it’s more than 80% is to have a look at savings, and it’s only 5% of the purchase price has been genuinely saved by the client for more than three months.

Q. I think we might be talking about different things. What I’m asking you about is checking the validity of the information that’s in the written—

A. But it wasn’t a requirement of the bank, no.

Q. The short answer is: not a requirement of the bank for you, personally, to check, firstly, the legitimacy of the payslips. Correct?

A. Well, I would look at them, but to my knowledge they looked fine, but you’re saying to ring and confirm, or you know – I’m not sure what answer I would get at the other end, whether it would be confirmed or not confirmed.

28. On 17 August 2017, a statement of Mr Godwin Cini, a fraud officer employed by Westpac, was read to the jury by the Crown prosecutor without objection by either counsel. It included the following:

…I hereby state that on 5 September 2016, Detective Senior Constable Robert Wahhab of the New South Wales Police advised that a home loan approved by Westpac Banking Corporation in the name of Tamara Amylee Moore may have been approved on false information supplied by the applicant. Having perused the investment property loan application by the stated Tamara Amylee Moore I can state that based on information supplied by Ms Moore on investment property loan number 037166201004 for the sum of $760,000 was approved by Westpac Banking Corporation for the purchase of property known as [address] New South Wales.

I can state that Ms Moore’s application indicated that she was employed full time as a sales manager with a gross yearly income of $81,328. Ms Moore supplied two pay slips dated 16 May 2014 and 9 May 2014 showing a gross weekly wage of $1564 by A-Class Concrete & Landscape. Ms Moore’s application also stated that she had no dependants. Me Moore stated on her loan application that she had $182,000 savings with the Commonwealth Bank of Australia and $70,000 with the National Bank of Australia. Her loan application further indicated that the property was purchased as an investment loan, meaning the property would return a rental income.

Ms Moore’s investment property loan application was based solely on the information contained in the application. Had there been any different information regarding the employment, savings and income the loan application may not have been approved by Westpac Banking Corporation. Mr DSC Robert Wahhab had already been supplied with a copy of the loan application and pay slips by the banks, police liaison team, and a warrant for information”.

(emphasis added)

29. Mr Haddad, who it will be recalled was the mortgage broker who had become a Crown witness, was then called to give evidence by the Crown.

30. In cross-examination by senior counsel for Mr Rashidi, he asserted that he could not recall whether he himself had manufactured two payslips that were submitted to Westpac. Eventually, he came to admit that it was he who manufactured the payslips:

Q. You’ve now admitted before this jury that you manufactured pay slips and incorporated them with a loan account and presented them to Westpac?

A. Yes.

Q. You’ve never been charged with any offending out of this conduct?

A. Never.

Q. Not only that, you’ve admitted to forging Ms Moore’s signature on the loan application?

A. Yes.

31. He agreed that, although he himself had forged the signature of Ms Moore on the loan application, he had never previously met her. He also agreed that he had never had anything to do with Mr Rashidi.

32. As for his contact with the applicant, he claimed to have known him “for 17 years”.

33. He described his own forging of signatures on three different occasions as simply “a mistake”. It was suggested to him that Ms Moore had no knowledge of the documents upon which he had placed her forged signatures.

34. He gave evidence that he did not believe that, by forging the signatures of Ms Moore, he was committing a criminal offence.

35. He agreed that he had not kept file notes of the telephone conversations in which he claimed that the applicant had provided him with information to include in the false documents that he, Mr Haddad, went on to create.

36. The concluding question in cross-examination of Mr Haddad by senior counsel for Mr Rashidi was as follows:

Q. Okay. So a straightforward loan, lady wants to buy a property, Mr Georgis [sic, here and elsewhere] gives you all the information, you doctor up the pay slips and you forge her signature, that’s basically what happened?

A. That’s right.

37. Counsel for Ms Moore cross-examined Mr Haddad to similar effect.

38. At the conclusion of the Crown case, counsel for both accused sought a verdict by direction. Senior counsel for Mr Rashidi submitted that the evidence of engagement in a joint criminal enterprise against each accused was wholly deficient; that the Crown case had changed markedly, in that Mr Haddad was now to be included “as a principal”, because he had come to admit that, far from simply being the alleged conduit of falsities in terms of the payslips, he himself was actually the creator of them; that the original Crown thesis that Mr Monteleone had created the false payslips, passed them to the applicant, who passed them to Mr Haddad, had been destroyed by the grudging admission of Mr Haddad; that there was “not a single piece of evidence” to show that Mr Rashidi was inculpated in the false payslips or the false salary claim; and that Mr Rashidi was not inculpated by any telephone intercepts.

39. In support of the penultimate proposition, senior counsel submitted:

… I mean in the, bearing in mind the nature of the agreement, the criminal agreement that the Crown have set out to prove, what we do know is that Mr Haddad put figures, he says he got them from Georgis, well if he did get them from Georgis, he didn’t get the information that Mr Rashidi had passed onto Mr Georgis, that much is plain. And in any event, we know that Mr Haddad, by his own admission, has the capacity to manufacture evidence that will help or assist in getting the loan through.

40. Later in his oral submissions, senior counsel returned to the proposition that there was simply no evidence to inculpate Mr Rashidi in any joint criminal enterprise.

41. Quite separately, it was submitted that there was no evidence of the deception having been the means by which the loan amount was obtained. He invited attention to the statement of Mr Cini, and submitted that “she does not expressly assert that but for those issues of pay slips, savings, and income, if the truth was known, the loan would still nonetheless have been granted, particularly having regard, for example, security and the 20% deposit”. It was later said that “we know that on the evidence none of these details are checked at all because of the 20% value, and the fact that she doesn’t expressly say that in her statement, is fatal we would submit to the prosecution case”.

42. Senior counsel then returned to the proposition that there was no evidence to inculpate Mr Rashidi, in particular now that Mr Haddad was accepting responsibility for the creation of the false payslips himself.

43. Finally, senior counsel put forward a “fallback position”: the information that Mr Rashidi had allegedly passed on to the applicant was “completely inconsistent” with the “inflated figure in the loan document” with regard to the asserted savings of Ms Moore.

44. A similar application was made by counsel for Ms Moore.

45. The contingent position of each counsel was an application for a “Prasad invitation”, a procedure that has since been disapproved: see R v Prasad (1979) 23 SASR 161 and Director of Public Prosecutions Reference No 1 of 2017 [2019] HCA 9; 93 ALJR 424.

46. The Crown prosecutor unsuccessfully opposed the application.

47. In a judgment of 21 August 2017, the learned trial judge discussed the concepts underpinning a verdict by direction, with respect in entirely orthodox terms.

48. His Honour then stated that it had “been pointed out that a fatal defect in the Crown case is the inability of the Crown case to establish a causal connection between the deception used in the obtaining of the money, namely $760,000”.

49. His Honour went on to say in the judgment “[H]ere looking at the evidence and taking the Crown case at its highest, it has not been proved, in my view, beyond reasonable doubt by the Crown that the money was obtained as a result of any deception that can be sheeted home to one or both accused. Accordingly, in all the circumstances I intend to give the jury a direction that they should bring in a verdict of acquittal in both cases.”

50. A little later, his Honour corrected himself, at the invitation of senior counsel for Mr Rashidi, and expressed the success of the application in more orthodox terms: “the evidence has no capacity to prove – ” [that the money was obtained as a result of any deception that can be sheeted home to one or both accused].

51. Thereafter, his Honour directed the jury as follows “[I]t is an essential ingredient of the offence created by the section under which the accused had been charged that the cause of the payment of the money was the deception used by the accused. I’ve come to the conclusion on the balance of the evidence that this element cannot be proved. You know from the evidence of Ms Godwin Cini [sic] the Westpac banking fraud officer that she stated that Ms Moore’s investment property loan application was approved based solely on the information contained in the application. Had there been any different information regarding her employment, savings and income, the loan application may not have been approved by Westpac Banking Corporation. Therefore in line [sic; light?] of her evidence, I have not been able to be satisfied that that ingredient of the charge has been made out.”

40. The jury duly returned a directed verdict of not guilty with regard to both accused, and was promptly discharged.

Application to Judge Sweeney to withdraw plea of guilty

53. Some time later, on 27 July 2018, the applicant sought leave to withdraw his plea of guilty, and made an application for a permanent stay of any further proceedings arising from the allegation. Mr Monteleone made the same application. That application was opposed by the Crown.

54. The primary issue in those proceedings, as formulated by the Crown, was whether the applicant had established that a miscarriage of justice would occur if he were not permitted to withdraw his plea of guilty.

55. According to the written submissions of the applicant before this Court, the bases of the application were as follows: the plea was one of convenience only; the agreed facts did not contain an admission that the applicant knew of the falsity of the contents of the loan application; at the time of the entry of the plea of guilty, the applicant was not to know of the evidence that Mr Haddad would give at trial; that the “fatal defect” had not been conveyed to the applicant; Westpac never checked the material contained in the loan application; and, finally, the Crown should be forestalled from supplementing its case by way of a permanent stay.

56. As in the trial of the two co-accused, the missing element relied upon by the applicant was a causative connection between the alleged deception and the obtaining of the loan sum. In other words, the application focused upon the causation encapsulated in the preposition “by”, in the offence of obtaining a benefit by deception. In a nutshell, it was said that there was simply no evidence that any allegedly false document actually caused Westpac to advance the loan.

57. Another aspect of that hearing was that the Crown sought to rely on a second statement of Mr Cini, this one dated 30 January 2019. In a nutshell, it said unequivocally that Westpac would not have advanced the loan if not for the falsehoods contained in the loan application. The applicant resisted the admission of that second statement, both before Judge Sweeney and before this Court, on the general basis that the Crown should not be permitted to repair an asserted fatal flaw in its case “retrospectively”.

58. Read in those proceedings was an affidavit of the applicant to the effect that his plea of guilty was not reflective of sincere appreciation of guilt. Rather, it was motivated by a desire to obtain a non-custodial sentence. The applicant was not cross-examined on that affidavit, whether before Judge Sweeney, or, I interpolate, before this Court.

59. There was also an affidavit from the solicitor who appeared for the applicant at the time when the plea of guilty had been entered, to the effect that he had simply overlooked the question of causation underpinning the “crucial preposition” in the offence-creating provision.

60. The Crown’s position was that the two matters upon which the applicant relied in support of his application (the admission by Mr Haddad that it was he who had created false payslips, and the “equivocal opinion” by the Westpac employee about whether the loan would have been approved in any event) did not affect the integrity of the pleas by the applicants, because:

1. the false payslips were only one aspect of the false information provided to the bank;

2. the statement by the Westpac employee Mr Cini was in the possession of the applicant before he entered his plea; and

3. in the statement of facts to which the appellant agreed, in the course of plea negotiation, the appellant made admissions that the bank was deceived by false information in the loan application – information to which the applicant had contributed.

61. After the hearing of the motion on 17 April 2019, on 24 May 2019 Judge Sweeney dismissed both the application for leave and application for a permanent stay.

62. To summarise the judgment of her Honour with great succinctness, the application was rejected on the ground that there was, in truth, no problem with proof of causation, not least because of the evidence of Mr Huseyin; the subsequent change of position of Mr Haddad was insignificant as regards the applicant, because there was other conduct – above and beyond the actual creation of the payslips – attributable to the applicant on the Crown case; and the plea of guilty had been entered by the applicant “in the exercise of a free choice, in his interests, to take advantage of the Crown’s concession…”.

Conviction and sentence

63. To conclude this chronological conspectus, after the rejection of that application by Judge Sweeney, on 11 October 2019, the applicant was convicted and sentenced by Judge Flannery SC to be subject to an intensive correction order.   

Ground of appeal against conviction

64. Before this Court, the respondent originally relied upon a single ground of appeal: that the primary judge erred in refusing the application to withdraw the plea of guilty (and for a permanent stay of proceedings).

65. By the conclusion of the hearing before us, senior counsel accepted that, in light of the fact that the applicant has been convicted and sentenced, the appeal must focus on the question of whether a miscarriage of justice has occurred, in accordance with s 6 of the Criminal Appeal Act 1912 (NSW), as opposed to focusing on the correctness of the decision of Judge Sweeney. That is the basis upon which I shall analyse this application.

Submissions of the applicant

66. In written submissions, the applicant referred to a number of asserted issues about how the proceedings at first instance unfolded. They included: the obliterated credibility of Mr Haddad as a witness; the asserted statement of Mr Haddad that he himself was unilaterally responsible for falsifying the payslips having being “fatal” to the Crown case against Mr Rashidi and Ms Moore; and the inadmissibility of the proposed further evidence of Mr Cini and its inconsistency with earlier evidence given by the same witness. It was submitted that the Crown should be precluded from relying on the subsequent statement obtained from her, and that to permit it could give rise to inconsistent verdicts in respect of alleged participants in the same joint criminal enterprise.

67. In oral submissions in chief, the applicant asserted that first, the plea was not attributable to a genuine consciousness of guilt; secondly, the integrity of the plea was compromised by the failure of the solicitor to appreciate and advise the applicant about the asserted defect in the Crown case; relatedly, the Crown should be prohibited from attempting to rectify that defect by way of the further statement; and thirdly, the ignorance of the applicant, at the time he pleaded guilty, of the fact that Mr Haddad would change his position markedly on oath about the provenance of the payslips, an assertedly crucial alteration of position, was highly significant. All of that in combination, it was said, demonstrated that to permit this conviction to stand would be to permit a miscarriage of justice.

68. In oral submissions in reply, the applicant submitted that Mr Huseyin never gave evidence in the trial about any causative link between the contents of the loan application and the decision of Westpac to grant the loan. The proposition was emphasised that, once the deposit was sufficient, then “a pre-approval of the loan application was made out”.

69. Any suggestion that the case presented in support of the exculpation of Mr Rashidi featured the inculpation of the applicant was resisted.

70. Finally, the assertion that it was Mr Haddad who was alone criminally responsible was maintained. Concomitantly, it was said that there was no evidence of “any of the other accused”, including the applicant, “being complicit in the false information or the creation of it or having knowledge of it”.

Submissions of the Crown

71. In written submissions, the Crown relied on the legal principles articulated in R v Thalari (2009) 75 NSWLR 307; [2009] NSWCCA 170 by Johnson J (Young JA and Latham J agreeing); namely, “the plea of guilty itself is a cogent admission of the ingredients of the offence” (at [34], citing R v SL [2004] NSWCCA 397). Moreover, it was noted in that judgment that a person “may plead guilty upon grounds” extending beyond “that person’s belief in his guilt”.

72. Relatedly, it was said that it is well recognised that notwithstanding one’s belief that one is not guilty of an offence, one may plead guilty in the exercise of a free choice, because one perceives it as being in one’s best interests to do so (referring to Wong v DPP (NSW) [2005] NSWSC 129; (2005) 155 A Crim R 37 at [33], [36]-[37]).

73. The Crown emphasised four main propositions orally: first, that the applicant signed comprehensive, self-incriminating agreed facts, and thereby made admissions as to those facts supplementary to his plea of guilty.

74. Secondly, that one can readily infer a criminal role of the applicant from the conversations recounted in the agreed facts between himself and Mr Rashidi and then Mr Monteleone about the provision of information about “wages”.

75. Thirdly, that it is not correct to say that, at the time the applicant entered the plea of guilty, he was not aware that Mr Haddad was admitting that he had completed the application form, and that he, Mr Haddad, had signed it in the name of Ms Moore.

76. Fourthly and relatedly, as for the submission of the applicant about his alleged lack of knowledge that Mr Haddad would give evidence as to the unilateral creation of payslips (and incorporation of savings and income in the loan application), it is not correct to say that the evidence in the trial of Mr Haddad was that he had acted entirely unilaterally.

77. To expand on the fourth submission, true it was that it was only at that hearing (and for the first time) that Mr Haddad admitted having manufactured two payslips himself. He maintained, however, the position that he had done so on the basis of information provided to him by the applicant.

Determination

78. The question is whether the applicant can establish that his conviction is a miscarriage of justice. In my opinion, that proposition has not been established, for the following reasons.

79. First, in my opinion there is no fatal defect in the Crown case against the applicant. As I have said, the use of the preposition “by” in the offence-creating provision certainly calls for proof by the prosecution that the alleged deception caused the obtaining of the benefit: see R v Ho (1989) 39 A Crim R 145. The question is therefore whether there was evidence that the provision of the false documents to Westpac caused Westpac to advance the loan.

80. In my opinion, the mere fact that Westpac may have accepted the documents at face value, and, in light of the favourable loan value ratio, not made enquiries about those documents, does not successfully impugn proof of the causative element.

81. The proposition of the applicant may be tested by asking whether it is remotely possible that Westpac would have advanced $760,000 if it had known the truth about the financial affairs of Ms Moore: unemployed, living on $16,000 per year in government benefits, with about $4,000 in savings. In my opinion, it is almost inconceivable that Westpac would have done so, even despite the security of a mortgage on real property in Sydney, and a favourable loan value ratio evidenced by a deposit of 20%. Rejection of the proposition that Westpac would have advanced the monies if it had known the truth establishes to my mind that there is (at the least) some evidence that Westpac relied upon the documents provided in advancing the loan.

82. One can also test the proposition by asking why the provision of the false documents was thought to be necessary at all, if those falsehoods were to play no role in the decision of Westpac to advance the loan.

83. In my opinion, the evidence of none of the bank employees detracts from the readily drawn inference. And I say that putting to one side for the sake of argument the subsequent statement of Mr Cini sought to be relied upon by the Crown.

84. I do not understand any of the bank employees to have put forward, explicitly or implicitly, the highly counter-intuitive proposition that the materials placed before Westpac that suggested that Ms Moore was able to service the loan had nothing to do with the provision of many hundreds of thousands of dollars to her. And to be clear, I do not interpret the first statement of Mr Cini as being to that effect, directly or indirectly. Indeed, the first bolded portion of the extract from this first statement of Mr Cini that was read to the jury baldly states that the decision to advance the loan was “based upon” the information supplied in the loan application.

85. To expand on my approach to the evidence of the bank officers: the thesis of the applicant about causation is founded on the evidence of Mr Cini in the first statement that the loan may not (and therefore may) have been approved by Westpac, even in the absence of the falsehoods. But, speaking generally, and with respect, merely because a certain outcome may have occurred in any event in the absence of an action, by no means demonstrates that the action, once it did occur, did not cause, and could not have caused, that outcome. To apply that general proposition to the facts of this case: taking a view of the evidence most favourable to the applicant, the possibility that Westpac may have approved the loan in any event, even if the lies had not been told, does not mean that there is no evidence that the lies, having been put forward in fact, caused Westpac to approve the loan.

86. Finally, to provide my analysis of another aspect of causation: the mere fact that a financial institution does not actively check information conveyed to it does not negate the proposition that the financial institution has relied upon that information.

87. Secondly, in my opinion, whether or not Ms Moore and Mr Rashidi received the benefit of a verdict by direction is not determinative of the question of whether the conviction of the applicant has been shown to be a miscarriage of justice, for the following reasons.

88. Patently, the directing of a verdict of not guilty with regard to an accused person is highly “fact specific” with regard to the evidence placed before the jury as against that individual person. It can be seen that the evidence of Mr Haddad did not powerfully implicate Mr Rashidi or Ms Moore as participants in the joint criminal enterprise. It is also to be recalled that the ultimate position of Mr Haddad at the trial with regard to the applicant was that it was the applicant who had provided material that permitted Mr Haddad to prepare the false payslips himself. I accept that there was an important change of position on the part of Mr Haddad. But the ultimate position of Mr Haddad, maintained on oath, that the applicant had provided such things as letterhead from the concreting company, hardly bespeaks exculpation; quite the contrary.

89. Relatedly, one can reflect on the question of whether Mr Rashidi and Ms Moore would have been granted a verdict by direction at trial if the Crown had tendered in its case documents signed by them that contained the same self-incriminating material as that contained in the agreed facts signed by the applicant. The answer must be in the negative.

90. Furthermore, it was never suggested before this Court that the telephone intercept product quoted in the agreed facts signed by the applicant had been misquoted, or was not available to the Crown for some reason. Contrary to the submission of the applicant in this Court, I believe that the extracts from that product that I have provided above are cogent evidence of engagement by the applicant in a joint criminal enterprise to deceive Westpac.

91. In short, in my opinion there is a plethora of distinctions to be drawn between the positions of Ms Moore and Mr Haddad, and that of the applicant.

92. Thirdly, in my opinion this case does not call for a detailed examination of the circumstances in which a person is entitled to enter a plea of guilty even though not truly admitting his or her guilt, and the circumstances in which such a plea will and will not be permitted to be withdrawn: see generally Meissner v the Queen (1995) 184 CLR 132; [1995] HCA 41. And in light of the position adopted by the Crown before Judge Sweeney and this Court – not cross-examining the applicant on his affidavit swearing that his plea was not a reflection of sincere appreciation of guilt – I determine this application on the basis that the plea was indeed entered for convenience.

93. But the straightforward situation here is that the plea of guilty entered whilst represented was a public, solemn acceptance of guilt of the offence in all its elements. Furthermore, the agreed facts went well beyond those bare elements. Signed by the applicant whilst represented, they constituted, and continue to constitute, detailed and compelling written admissions about the facts and circumstances underpinning that plea. Any subsequent dissatisfaction on the part of the applicant about the outcome, whereby he has been convicted and sentenced and yet Ms Moore and Mr Rashidi, on his admissions fellow participants in the joint criminal enterprise, have been acquitted, provides in my opinion no basis for implicitly setting aside that plea by quashing the conviction.

94. In summary: I do not believe there is a “missing element” in the Crown case. I believe that one can very readily infer that the loan documents could well have caused Westpac to advance $760,000 to Ms Moore. In the absence of those documents, and if Westpac had known the truth, it is most unlikely that it would have advanced that sum to her. Properly understood, and looked at as a whole, the evidence of the bank officers is not inconsistent with that proposition; rather, it supports it.

95. Nor do I believe that the acquittal of the two co-accused is determinative, or even particularly significant, on the facts here, not least because of the inculpatory intercept product available to the Crown against the applicant but not against the two of them, and the inculpation of the applicant that was maintained by Mr Haddad in the trial.

96. Finally, the plea of guilty of the applicant does not stand on its own. It is buttressed by detailed agreed facts formally adopted by the applicant and his lawyer that are powerful evidence of guilt, including but not limited to what he had accepted he had said to others on the telephone.

97. In my opinion, the applicant has not established that this conviction constitutes a miscarriage of justice.

Proposed orders

98. I propose the following orders:

1. Leave to appeal against conviction granted.

2. Appeal against conviction dismissed.

99. N ADAMS J: I have had the advantage of reading the judgment of Button J in draft. I agree with the orders proposed by his Honour for the reasons provided with one exception. I do not consider it necessary to determine whether the finding that there was “no evidence” of causation at the trial of the applicant’s co-offenders was a sound one in order to determine this appeal. On that basis I do not expressly adopt what his Honour has stated at [85]. The applicant pleaded guilty, was legally advised and signed an agreed statement of facts. The evidence against him differed to that against his co-offenders. The current state of the evidence, were he to go to trial, is that there is no defect in the case against him. Although one can understand his grievance that his co-offenders obtained a forensic advantage that he did not enjoy, that does not mean that there has been a miscarriage of justice within s 6(1) of the Criminal Appeal Act 1912 (NSW).

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Amendments

15 March 2021 - Corrected the file number on the cover sheet.

15 March 2021 - Corrected two file numbers on the cover sheet.

Decision last updated: 15 March 2021