Mokbel v The Director of Public Prosecutions
[2009] VSC 372
•1 SEPTEMBER 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
No. 8546 of 2009
| ZAHAROULA MOKBEL | Plaintiff |
| v | |
| THE DIRECTOR OF PUBLIC PROSECUTIONS (on behalf of the Queen) | First Defendant |
| and | |
| THE COUNTY COURT OF VICTORIA | Second Defendant |
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JUDGE: | HABERSBERGER J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 26 AUGUST 2009 | |
DATE OF JUDGMENT | 1 SEPTEMBER 2009 | |
CASE MAY BE CITED AS: | MOKBEL v THE DIRECTOR OF PUBLIC PROSECUTIONS | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 372 | |
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Judicial Review – Criminal Law – Whether presentment disclosed offences known to the law – Three counts of dishonestly obtaining a financial advantage by deception – No specific allegation of false representation – Judicial review of trial judge’s refusal to quash presentment – Fragmentation of the criminal process – Whether jurisdictional issue an exceptional circumstance – Required pleading of offence under s.82 of the Crimes Act 1958.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S.A. Shirrefs SC | Grigor Lawyers |
| For the First Defendant | Mr P.N. Rose QC with Mr M. Gibson | Mr C. Hyland, Solicitor for Public Prosecutions |
| For the Second Defendant | No appearance |
HIS HONOUR:
Introduction
By an originating motion filed on 25 August 2009, pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 2005, the plaintiff, Zaharoula Mokbel, sought judicial review of two rulings by her Honour Judge Jenkins given at the commencement of the plaintiff’s trial in the County Court of Victoria on three counts of dishonestly obtaining a financial advantage by deception contrary to s.82 of the Crimes Act 1958. By a summons filed on the same day, the plaintiff sought to bring the matter before the Practice Court on 26 August 2009 for an urgent hearing as the trial had been adjourned pending the outcome of the application for review.
The plaintiff sought four declarations. They were:
(a)A declaration that Her Honour Judge Jenkins, a Judge of the County Court of Victoria (the secondnamed defendant) sitting at Melbourne on 24 August 2009 was in error in refusing the plaintiff’s application to quash Presentment UO2663623 dated 22 July 2009, wherein the Plaintiff is the accused, for failing to disclose an offence known to the law.
(b)A declaration that the secondnamed defendant was in error in ruling that the counts on Presentment UO2663623 disclosed offences pursuant to s.82 of the Crimes Act 1958 and were therefore amenable to the criminal jurisdiction of the Court.
(c)A declaration that the counts on Presentment UO2663623 are not offences pursuant to s.82 of the Crimes Act 1958 and are therefore not justiciable within the jurisdiction of the County Court of Victoria.
(d)A declaration that the secondnamed defendant was in error in finding and holding that it was not necessary for the counts on the Presentment to particularise the alleged misrepresentations by which each financial advantage was obtained.
The plaintiff also sought relief in the nature of certiorari to quash the decision of the second defendant, and relief in the nature of prohibition to restrain the defendants from taking any steps to prosecute the three counts on the presentment.
Background
It appears that the relevant history of this matter is as follows. On 9 November 2006, Mrs Mokbel was charged with four informations alleging breaches of s.82 of the Crimes Act. On 12 September 2007, she was committed to stand trial on the first three informations, but was discharged on the fourth charge. The first three informations alleged that Mrs Mokbel had dishonestly obtained for herself a financial advantage, namely mortgage loans of varying amounts from different financial institutions, by deception by claiming to be employed in varying capacities and earning varying income.
A case conference was held on 27 November 2007. It was said by senior counsel for Mrs Mokbel that it was mooted at the case conference that the presentment, which was yet to be filed, would encompass the charges contained in the first three informations.
On 12 June 2008, Mrs Mokbel applied to the Director of Public Prosecutions (“the Director”) for the entry of a nolle prosequi. It was said that this step was taken on the basis that the evidence was that Mrs Mokbel had had very little or no dealings with the finance brokers who lodged the loan applications. In the case of the first information, it was said that the finance broker had had discussions with Mrs Mokbel’s husband, Horty Mokbel, and very little or no discussions with Mrs Mokbel. In the case of the second and third informations, it was said that the finance broker had himself been charged in July 2007 with 31 informations relating to him creating false information and documents to support loan applications, and that the broker had made a statement for the prosecution in which he said that he had had no dealings with Mrs Mokbel and that the information had come from either Mr Mokbel or another man.
At a mention on 11 August 2008, the Crown indicated that it was considering Mrs Mokbel’s application for a nolle prosequi, but that it was also considering whether Mr Mokbel should be charged with these offences. At a further mention on 29 August 2008, Mrs Mokbel’s trial date of 13 October 2008 was vacated. The trial was refixed for 24 August 2009.
By a letter dated 12 September 2008, the Office of Public Prosecutions (“the OPP”) served what became the first version of the presentment. The three counts were that Mrs Mokbel:
1.On or about the 30th day of July 2002 dishonestly obtained for herself a financial advantage namely a mortgage loan in the amount of $487,500 from INTERSTAR WHOLESALE FINANCE by deception namely by falsely representing that
(a)ZAHAROULA MOKBEL was self-employed as a petrol station proprietor;
(b) ZAHAROULA MOKBEL earned an annual salary of $250,000;
(c)the information contained in the application signed by her and dated the 25th day of June 2002 was true.
2.On or about the 31st day of December 2004 dishonestly obtained for herself a financial advantage namely a mortgage loan in the amount of $1,000,000 from NATIONAL AUSTRALIA BANK LTD by deception namely by falsely representing that:
(a)ZAHAROULA MOKBEL was employed as the State Manager of Zenith Oil;
(b)ZAHAROULA MOKBEL earned a net monthly salary of $6,769.75;
(c)she had read and understood the particulars which had been completed in the application form signed by her and dated the 3rd day of November 2004 and that those particulars were true, complete and correct.
3.On or about the 21st day of October 2005 dishonestly obtained for herself a financial advantage namely a mortgage loan in the amount of $800,000 from WESTPAC BANKING CORPORATION by deception namely by falsely representing that:
(a)ZAHAROULA MOKBEL was employed by Roadstar Express P/L;
(b) ZAHAROULA MOKBEL earned a monthly income of $130,000;
(c)the information contained in the application signed by her and dated the 24th day of August 2005 was complete and correct.
By letter dated 12 November 2008, the OPP served an amended presentment. The only changes were that an extra particular of the false representations had been added into counts 2 and 3, which read respectively:
Zaharoula Mokbel was married with no dependents [sic]
and
Zaharoula Mokbel was single with no dependents [sic].
On 10 October 2008 Mr Horty Mokbel was charged with three offences, identical to the first three laid against his wife. Following his committal hearing on 24 June 2009, Mr Mokbel was discharged. Apparently, the evidence of the finance broker involved with the second and third loans was to the effect that if he got information from anybody it was from another person and not Mr Mokbel, and that otherwise he simply made things up and created documents.
A further application on behalf of Mrs Mokbel for a nolle prosequi was rejected. On 22 July 2009, the presentment in question in this proceeding was served (“the Presentment”). The three counts were that Mrs Mokbel:
1.On or about the 30th day of July 2002 dishonestly obtained for herself a financial advantage namely a mortgage loan in the amount of $487,500 from INTERSTAR WHOLESALE FINANCE by deception namely by signing a blank loan application form with knowledge that when submitted to INTERSTAR WHOLESALE FINANCE it would contain false information.
2.On or about the 31st day of December 2004 dishonestly obtained for herself a financial advantage namely a mortgage loan in the amount of $1,000,000 from NATIONAL AUSTRALIA BANK LTD by deception namely by signing a blank loan application form with knowledge that when submitted to NATIONAL AUSTRALIA BANK LTD it would contain false information.
3.On or about the 21st day of October 2005 dishonestly obtained for herself a financial advantage namely a mortgage loan in the amount of $800,000 from WESTPAC BANKING CORPORATION by deception namely by signing a blank loan application form with knowledge that when submitted to WESTPAC BANKING CORPORATION it would contain false information.
The Hearing in the County Court
On 24 August 2009, application was made on behalf of Mrs Mokbel to the learned trial judge to quash the Presentment, after she had been arraigned and before a jury was empanelled.[1] The argument advanced on behalf of Mrs Mokbel was that as the Crown was alleging deception it was “required by law to actually specify the false representation which is the deception relied upon”. A false representation could be made by words or by conduct. It was submitted that the conduct alleged against Mrs Mokbel in the Presentment was the signing of a blank loan application form with knowledge. That conduct was not a false representation. It related to something that might happen in the future, whereas a false representation had to be as to present conduct. In any event, it was submitted, it was not the representation that the Crown would allege was relied upon by the financial institutions to advance the mortgages in question. The false representation which, it was submitted, the Crown relied upon was the false information in the form about her employment and income. It was not alleged in the Presentment that Mrs Mokbel made those false representations, either personally or through an agent or someone with whom she was criminally complicit. Thus, it was submitted, there was no offence alleged because there was no false representation by Mrs Mokbel.
[1]See as to the procedure: R v Rushton [1967] VR 842, 846 (Winneke CJ, Adam and Menhennitt JJ).
The Crown accepted that, at least with respect to counts 2 and 3, it could not prove that Mrs Mokbel knew the precise details that would be put in the various application forms. Counsel pointed out that s.81(4), which defined “deception” for the purposes of the offences created by ss.81 and 82, did not speak about “false representations” or even “representations”. It said that it meant:
any deception (whether deliberate or reckless) by words or conduct as to fact or as to law, including a deception as to the present intentions of the person using the deception or any other person.
It was submitted that the Crown was relying upon conduct, namely Mrs Mokbel’s conduct in handing over a signed blank form in the knowledge that others would put in the information required to get her a loan, whether it be the finance broker in count 1, acting on information given by Mr Horty Mokbel, which he allegedly confirmed in the presence of his wife, or the finance broker in counts 2 and 3 acting with a licence to put in whatever information was needed in order to get her a loan.
In reply, counsel for Mrs Mokbel repeated his submission that as no false representation was alleged against Mrs Mokbel in the Presentment there was no offence under s.82 disclosed. However, he accepted that if the evidence disclosed that the accused person was complicit in what the broker put in the loan application form in the sense of knowing that the financial institution would be misled by false information, even though the accused person did not have specific knowledge of the precise false representation, then the accused person would be guilty of the offence. But he submitted that, in those circumstances, the Presentment should allege the particular false representations which led to the obtaining of each loan rather than alleging conduct of signing a blank loan application form.
Her Honour refused the application to quash the Presentment. She ruled that:
The presentment as presently drafted does disclose an offence pursuant to s.82 …
The Crown does not plead and it does not have to in the circumstances of this particular case that the accused knew of what particular false information was going to be contained in the document in advance of it. It is alleging as I understand [it] that the document would contain false information, either that information which had been in the case of count 1, supplied directly by the accused or her agent, whether the husband or the other person that was mentioned, or in the case of counts 2 and 3, supplied by the broker.
Fragmentation of the Criminal Process
Before me, senior counsel for the first defendant, the Director, submitted that the availability of the remedy of judicial review was subject to an important limitation, namely that, in order to avoid the fragmentation of criminal proceedings, this Court will not permit judicial review of interlocutory decisions in criminal trials unless there are exceptional circumstances.[2] Reference was made to the following passage from the judgment of Gibbs ACJ in Sankey v Whitlam:[3]
In any case in which a declaration can be and is sought on a question of evidence or procedure, the circumstances must be most exceptional to warrant the grant of relief. … even when such an application is made without any improper motive it is likely to be dilatory in effect, to fragment the proceedings and to detract from the efficiency of the criminal process. … a court will be reluctant to make declarations in a matter which impinges directly upon the course of proceedings in a criminal matter. Once criminal proceedings have begun they should be allowed to follow their ordinary course unless it appears that for some special reason it is necessary in the interests of justice to make a declaratory order.
It was submitted that the plaintiff had not demonstrated any exceptional circumstances in this case.
[2]See, for example, Rozenes v Beljajev [1995] 1 VR 533 (Brooking, McDonald and Hansen JJ); Flynn v Director of Public Prosecutions [1998] 1 VR 322 (McDonald J); Atlas v Director of Public Prosecutions (2001) 3 VR 211 (Bongiorno J).
[3](1978) 142 CLR 1, 25-26.
Senior counsel for the plaintiff submitted that this case was exceptional, because it was concerned with a jurisdictional issue, namely whether the Presentment disclosed any offences known to law, and not merely with questions of evidence or procedure, as mentioned by Gibbs ACJ in the passage just quoted. He submitted that as everyone had initially agreed in the trial being adjourned to enable her Honour’s ruling to be tested, it was appropriate to determine the application on its merits. Counsel also pointed out that a jury had yet to be empanelled so that it was convenient to seek to bring this threshold question to a head at this early stage.
Despite the strong line of authority in support of the principle that it is important not to fragment “the ordinary, and orderly, process of a … trial”,[4] I consider that, in the circumstances of this case, it would not be appropriate to refuse to consider the application for judicial review on that ground. There is a real question raised as to the jurisdiction of the County Court to proceed with the trial. In my opinion, if the plaintiff’s argument on the merits is correct, then the trial should not proceed on the Presentment. It seems to me that it would be quite unjust for an accused person to have to defend herself at a trial in respect of counts, which it is later held, did not constitute an offence known to the law. Therefore, the trial having been adjourned, apparently without opposition, to enable what was thought to be an important point to be tested, the merits of the application should be considered.
[4]Rozenes v Beljajev [1995] 1 VR 533, 571 (Brooking, McDonald and Hansen JJ).
The Argument about the Presentment
Senior counsel for the plaintiff submitted that to make out an offence under s.82 of the Crimes Act, the prosecution had to identify in the Presentment with clarity and precision the specific false representation or representations for which the plaintiff was alleged to be criminally responsible and the nexus with the financial advantage obtained thereby. That is, he submitted that what had to be pleaded in each count as an essential element was the deception that operated on the mind of those from whom the financial advantage was obtained because there needed to be a causal connection between the obtaining and the act of deception, that act being either words or conduct which amounted to a false representation.
It was submitted that it was not sufficient to plead that the accused person signed blank loan application forms with knowledge. That just alleged dishonest conduct. Counsel submitted that what led to the obtaining of the financial advantage were the allegedly false statements in the signed loan application forms. Yet, it was submitted, in order for the plaintiff to be convicted under s.82, the jury would have to be satisfied beyond reasonable doubt that she was complicit in the making of one of the allegedly false representations. But none of them were pleaded.
Thus, it was submitted that the Presentment was deficient in that it did not allege or disclose an essential ingredient of the offence, namely the false representation in which the plaintiff was complicit by which the financial advantage was obtained. In support of his submissions, counsel referred to a passage from the judgment of Phillips and Buchanan JJA in R v Walsh:[5]
The second situation is where one offence is charged, such as obtaining property by deception, but a number of discrete acts is relied upon as proof and any one of them would entitle the jury to convict. If those discrete acts go to the proof of an essential ingredient of the crime charged, then the jury cannot convict unless they are agreed upon that act which, in their opinion, does constitute that essential ingredient. In this type of case, much will depend “upon the precise nature of the charge, the nature of the prosecution’s case and the defence and what are the live issues at the conclusion of the evidence”. When the charge is obtaining property by deception by means of misrepresentation, the making of the misrepresentation has been regarded as an essential ingredient of the crime charged.
[5](2002) 131 A Crim R 299, 316-317 (Ormiston JA agreed with Phillips and Buchanan JJ).
Senior counsel for the Director submitted that the plaintiff’s argument mischaracterised the relevant acts of the plaintiff. He submitted that the signing of a blank loan application form constituted a representation by the plaintiff that when presented to the financial institution at some later date the form would contain truthful information as to her financial circumstances. Indeed, there was a declaration in the loan application forms that the information given in the form was respectively “true” or “true, complete and correct” or “complete and correct”. Further, it was submitted, at the time of signing, the plaintiff knew that the information would be false in some respects because otherwise the loan would not be approved, or she was reckless as to whether or not the information would be false.
This representation by the signing of a blank loan application form was, it was submitted, analogous to the delivery of a number of post dated cheques each of which constituted:
a separate representation that that cheque would be honoured on presentation, if not on the date which it bore then on the date when funds went into the account to cover it …[6]
[6]R v Novak (2003) 141 A Crim R 507, 518 (Buchanan JA), (Phillips and Vincent JJA agreed with Buchanan JA).
Conclusions about the Presentment
In my opinion, there were two flaws in the argument presented on behalf of the plaintiff. First, complaint was made that the false representations in the loan application forms were not identified and therefore not only was there no offence alleged but the accused did not know the case she had to meet. I do not consider this argument to be correct. It seems to me that it was made clear by counsel for the Director both at the trial and in this Court that this was not the case now being put by the Crown. It was no longer being alleged that the plaintiff had falsely represented her employment or salary. The false representation which the prosecution will be asking the jury to find constituted the deception by the accused which induced the financial institution to grant her the loan, was the signing of the loan application forms in blank knowing that they would contain or would probably contain false information about her, yet representing by her signature that the information about her was true.
Section 369 of the Crimes Act states that every presentment shall contain “such particulars as are necessary for giving reasonable information as to the nature of the charge”. It is therefore clear that an accused is entitled to know from the outset of the trial the particulars of the offences alleged. In Johnson v Miller,[7] Dixon J (as he then was) said:
a defendant is entitled to be apprised not only of the legal nature of the offence with which he is charged but also the particular act, matter or thing alleged as the foundation of the charge.
More recently in R v King,[8] Dawson J said:
The aim in framing an indictment should, in fairness, be that everyone, particularly the accused, knows the nature of the charge brought against him.
[7](1937) 59 CLR 467, 489.
[8](1986) 161 CLR 423, 436.
In my opinion, unless required by law, there is nothing to be gained by forcing the Crown to reword the counts in the Presentment to include the false representation upon which it says it now relies. Such a count could read that the accused:
dishonestly obtained for herself a financial advantage namely a mortgage loan in the amount of $Y from [financial institution Z] by deception, namely by signing a blank loan application form and thereby falsely representing that it contained truthful information about her, when she knew that when submitted to [financial institution Z] the loan application form would contain or would probably contain false information about her.
This wording really adds little or nothing to the wording of the Presentment as it currently stands. Certainly, it does not give the plaintiff any further information as to the nature of the charge. She now well knows the case which she has to meet.
The second flaw in the plaintiff’s argument, in my opinion, is that, contrary to the submission on her behalf, the pleading of the offence does not necessarily have to set out the false representation upon which the prosecution relies. In framing a presentment, it is usually sufficient to follow the words of the statute creating the offence. As long ago as 1890, Higinbotham CJ said in R v Mirams:[9]
Now, it is a well-established rule of criminal pleading that if all the ingredients of an offence created by Statute are stated in the terms of the Statute the offence is well charged.
[9](1890) 16 CLR 865.
Section 82(1) of the Crimes Act provides that:
82. Obtaining financial advantage by deception
(1)A person who by any deception dishonestly obtains for himself or another any financial advantage is guilty of an indictable offence and liable to level 5 imprisonment (10 years maximum).
Therefore, what the prosecution has to allege in a charge under s.82 of the Crimes Act is that the accused person dishonestly obtained a financial advantage by deception. Proof of the deception is normally by proof of a false representation by words or conduct. But so long as it is clear what is being alleged, it is not necessary, in my opinion, that the false representation has to be actually spelt out in so many words in the count in the presentment. As the suggested alternative wording of the count set out above shows, nothing is gained in the circumstances of this case by specifying the detail of the false representation. It was different when the allegation was that the information in certain parts of the loan application forms was false. In that case, it was necessary to specify which parts of the forms were relied upon.
I have, therefore, concluded that the plaintiff’s application for judicial review of her Honour’s refusal to quash the Presentment fails. Both the summons filed on 25 August 2009 and the originating motion will be dismissed.
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