O'Sullivan v Verebes
[1996] QCA 380
•11/10/1996
| IN THE COURT OF APPEAL | [1996] QCA 380 |
| SUPREME COURT OF QUEENSLAND |
Appeal No. 2061 of 1996
Brisbane
[O'Sullivan v. Verebes]
BETWEEN:
JAMES PATRICK O'SULLIVAN
(Respondent) Appellant
AND:
TIBOR JENO VEREBES
(Applicant) Respondent Fitzgerald P.
Davies J.A.Demack J.
Judgment delivered 11/10/1996
Separate reasons for judgment of each member of the Court.
APPEAL ALLOWED. THE PARTIES BEING AGREED, IT IS ORDERED:
(A) THAT THE ORDERS MADE BY THE HON. MR. JUSTICE DOWSETT ON 9 FEBRUARY 1996, WHEREBY HIS HONOUR ORDERED THAT THE ORDERS OF THE STIPENDIARY MAGISTRATE MADE ON 27 OCTOBER 1995 BE REVOKED, AND FURTHER ORDERED THAT THE APPELLANT PAY THE RESPONDENT’S COSTS OF THE PROCEEDINGS BEFORE THE SUPREME COURT, INCLUDING RESERVED COSTS, BE SET ASIDE.
(B) THAT THE RESPONDENT APPEAR IN THE MELBOURNE MAGISTRATES COURT IN THE STATE OF VICTORIA ON 22 OCTOBER 1996 AT 10.00 A.M.
| (C) | THAT THE RESPONDENT BE REMANDED ON BAIL ON THE FOLLOWING |
CONDITIONS:
(i) THAT HE RESIDE AT 246 19TH AVENUE, ELANORA IN THE STATE OF QUEENSLAND;
(ii) THAT HE NOTIFY THE INFORMANT, DETECTIVE SERGEANT COLLINS, OF THE MAJOR FRAUD GROUP, VICTORIA POLICE, OF ANY CHANGE OF ADDRESS WITHIN 24 HOURS OF THAT CHANGE;
(iii) THAT HE SURRENDER HIS PASSPORT TO THE REGISTRY OF THE SUPREME COURT OF QUEENSLAND FOR TRANSMISSION TO THE CRIMINAL REGISTRY OFFICE OF THE MELBOURNE MAGISTRATES COURT IN THE STATE OF VICTORIA;
(iv) THAT HE NOT MAKE APPLICATION FOR A NEW OR REPLACEMENT PASSPORT;
(v) THAT HE PROVIDE ONE SURETY IN THE SUM OF $120,000;
(vi) THAT HE NOT ATTEND ANY POINTS OF INTERNATIONAL DEPARTURE;
(vii) THAT THE UNDERTAKING OF BAIL AND ANY OTHER DOCUMENTATION PREPARED IN RELATION TO THE RESPONDENT BEING REMANDED ON BAIL BE TRANSMITTED TO THE CRIMINAL REGISTRY OFFICE OF THE MELBOURNE MAGISTRATES COURT IN THE STATE OF VICTORIA.
FURTHER ORDERED THAT THE RESPONDENT PAY THE APPELLANT’S COSTS OF THE PROCEEDINGS IN THE TRIAL DIVISION AND OF THIS APPEAL, TO BE TAXED. APPLICATION FOR A CERTIFICATE UNDER THE APPEAL COSTS FUND ACT 1973 REFUSED.
CATCHWORDS: | EXTRADITION - validity of warrant - s.83(10) Service and Execution of Process Act 1992 (Cth) - s.27 Magistrates Court Act 1989 (Vic) - extraterritorial jurisdiction - ss.80A, 82 Crimes Act 1958 (Vic). |
| Counsel: | Mr. J. A. Griffin Q.C., with him Mr. J. B. Rolls for the appellant Mr. R. V. Hanson Q.C. for the respondent |
| Solicitors: | Crown Solicitor for the appellant Gilshenan & Luton for the respondent |
| Hearing Date: | 11 June 1996 |
IN THE COURT OF APPEAL
| SUPREME COURT OF QUEENSLAND | Appeal No. 2061 of 1996 |
| Brisbane | |
| Before | Fitzgerald P. |
Davies J.A. Demack J.
[O’Sullivan v. Verebes]
BETWEEN:
JAMES PATRICK O’SULLIVAN
(Respondent) Appellant
AND:
TIBOR JENO VEREBES
(Applicant) Respondent
REASONS FOR JUDGMENT - FITZGERALD P.
Judgment delivered 11/10/1996
The circumstances giving rise to this appeal are substantially set out in the reasons for
judgment of Davies J.A. However, I will add some further details of the proposed
prosecution case against the respondent, which is that:
| (a) | he sent from Brisbane: | |
|
used to obtain a mortgage from [the Order of the Sons of Temperance
Friendly Society], which was based in Melbourne”; and
(ii) “a letter to [the Friendly Society’s] solicitors in Brisbane, confirming that [the
Friendly Society] could rely on the valuation report”;
| (b) | the false valuation report was delivered to the Friendly Society by Bulfin with the |
respondent’s authority; and
| (c) | “the valuation was relied on by [the Friendly Society] in Melbourne, and ... this |
resulted in [the Friendly Society] advancing a loan of $3,000,000 in Melbourne ...”.
It appears that the respondent’s alleged authority to Bulfin to deliver the false valuation
report to the Friendly Society was also sent from the respondent in Brisbane to Bulfin in
Melbourne, but whether or not that is so seems of little consequence; there is nothing to
place the respondent in Victoria at any material time.
The basis for the respondent’s attack on the warrant for his extradition was that it is invalid
within sub-s. 83(10) of the Service and Execution of Process Act 1992 (Cth.) because its
statement of the charge against him lacked essential particularity, in that it failed to inform
him and the appropriate court of the manner and circumstances in which he allegedly
committed the offence charged. According to the respondent, such an omission was fatal
to the warrant’s validity at common law. However, it is plainly unnecessary to pursue that
issue; whatever the position at common law, the position in Victoria is now governed by s.
27 of the Magistrates Court Act 1989 (Vic.), which establishes both what a charge must
state and that such a statement is sufficient. The respondent further submitted that the
requirements of s. 27 had not been satisfied in the statement of the charge, and the warrant
was for that reason invalid.
At its broadest, the respondent’s submission was that the warrant is invalid even if s. 80A
of the Crimes Act 1958 (Vic.) is not essential to the prosecution case if any part of the
prosecution case which might be presented at his trial might involve reliance on s. 80A.
However, that seems to me plainly incorrect if a sufficient case could be established against the respondent under s. 82 without resort to s. 80A; in that event, it will be a matter
for the trial court to decide what, if any, evidence should be rejected because of the form
of the charge and the omission of any reference to s. 80A or facts or circumstances which
attract its operation. It is unnecessary for present purposes to embark on a discussion of
the material Victorian court’s possible powers to permit amendment or particulars to
expand upon the charge when a defendant has been extradited. Whether or not a warrant
is invalid if a charge does not satisfy the requirements of s. 27, in my opinion the appeal
must succeed if the charge against the respondent does not necessarily rely on s. 80A of
the Crimes Act.
The question for this Court is whether the charge in its present form is sufficient having
regard to any aspect of the respondent’s alleged conduct, i.e., if that conduct would involve
a breach of s. 82 of the Crimes Act independently of s. 80A; if so, there was no sufficient
reason to interfere with the magistrate’s extradition order.
At least in a broad sense, the respondent did one act in Victoria according to the
prosecution case; by his agent, Bulfin, he delivered the false valuation report to the Friendly
Society. No other conduct in Victoria was ascribed to the respondent by the appellant.
According to the appellant’s submission, that conduct by the respondent, by his agent, fell
within the operation of s. 82 of the Crimes Act (which is specified in the charge) without
reference to s. 80A. It was further submitted by the appellant that an offence against s. 82
is a “result crime”, and that the respondent’s criminal liability was established by the result
which he intentionally caused to occur, the provision by the Friendly Society of a credit
facility of $3,000,000 to Sterling Motors; the circumstance that that result occurred in
Victoria was sufficient to inculpate the respondent in a breach of s. 82 without reference
to s. 80A of the Crimes Act. Alternatively, the appellant submitted that s. 27 of the Magistrates Court Act (Vic.) does not require s. 80A of the Crimes Act to be identified in
the charge when it is to be relied on, or the description of the offence to refer to the facts
and circumstances which are said to bring a defendant’s conduct within s. 80A.
In my opinion, if the prosecution establishes against the respondent the matters specified
in paras. (a)(i), (b) and (c) set out above, it will prove an offence against s. 82 of the Crimes
Act by the respondent: such an offence is a “result crime” in the sense in which that term
is used in, for example, Thompson v. R. (1989) 169 C.L.R. 1. The respondent did not
argue that s. 80A of the Crimes Act altered this position, and in particular did not contend
that it somehow narrowed the operation otherwise of s. 82. Thus, if the respondent was
now in Victoria, he could be proceeded against for an offence against s. 82 which was
committed in Victoria despite his not having been there at any material time. That
distinguishes this case from Gummer (1994) 71 A.Crim.R. 140, in which the person sought
to be extradited to Western Australia had not committed any offence against the law of that
State because the material provisions of the Western Australian Criminal Code
necessitated his presence there when some act or omission involved in the offence
occurred and he had not been there at any material time.
At least in the circumstances of this case, if - as I think - the respondent has committed an
offence against s. 82 of the Crimes Act which could be prosecuted against him without
reference to s. 80A if he were apprehended in Victoria, there is no reason why the
magistrate was in error in ordering the respondent’s extradition to Victoria.
The appeal should be allowed. In that event, the parties were agreed that the Court should
make the following orders:
| (a) | That the orders made by the Hon. Mr Justice Dowsett on 9 February 1996, whereby his Honour ordered that the orders of the Stipendiary Magistrate made on 27 |
October 1995 be revoked, and further ordered that the appellant pay the
respondent’s costs of the proceedings before the Supreme Court, including
reserved costs, be set aside.
| (b) | That the respondent appear in the Melbourne Magistrates Court in the State of |
Victoria on 22 October 1996 at 10 a.m.
| (c) | That the respondent be remanded on bail on the following conditions: | |||
|
Group, Victoria Police, of any change of address within 24 hours of that
change;
(iii) that he surrender his passport to the Registry of the Supreme Court of
Queensland for transmission to the Criminal Registry Office of the Melbourne
Magistrates Court in the State of Victoria;
(iv) that he not make application for a new or replacement passport;
(v) that he provide one surety in the sum of $120,000.00;
(vi) that he not attend any points of international departure;
(vii) that the Undertaking of Bail and any other documentation prepared in relation
to the respondent being remanded on bail be transmitted to the Criminal
Registry Office of the Melbourne Magistrates Court in the State of Victoria.
It should be further ordered that the respondent pay the appellant’s costs of the
proceedings in the Trial Division and of this appeal, to be taxed. The application for a
certificate under the Appeal Costs Fund Act 1973 should be refused.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 2061 of 1996
Brisbane
| Before | Fitzgerald P. Davies J.A. Demack J. |
[O'Sullivan v. Verebes]
BETWEEN:
JAMES PATRICK O'SULLIVAN
(Respondent) Appellant
AND:
TIBOR JENO VEREBES
(Applicant) Respondent REASONS FOR JUDGMENT - DAVIES J.A.
Judgment delivered the 11th day of October 1996
The respondent was charged in Victoria on 27 September 1995, together with two other
persons, in the following terms:
"Keith William BULFIN, Richard Stephen GAFFNEY, and Tibor Jeno VEREBES at Melbourne on or about 23 November, 1989 dishonestly obtained for Sterling Motors Pty. Ltd. a financial advantage namely the creation of a credit facility in the sum of $3,000,000.00 from the Order of the Sons of Temperance Friendly Society by deception namely by falsely representing that the valuation report of the Centenary Motor Inn prepared by the said Tibor Jeno VEREBES dated 21 September, 1989 was a good and genuine valuation report and that the current fair market value of the property was $4,720,000.00."
The charged specified s.82 of the Crimes Act 1958 (Vic) as the provision under which the
respondent was charged. It was accompanied by a warrant for the arrest of the respondent.
On 29 September the warrant was produced and the respondent brought before a Magistrate
in Brisbane who made the following orders:
1. that the respondent reside at 246 Nineteenth Avenue, Eleanora;
2. that he notify the informant Detective Sergeant Collins of any change of address
within 24 hours of that change;
3. that he surrender his passport and not make application for a new or replacement
one; and
4. that he provide a surety in the sum of $120,000.
The respondent then sought review of the Magistrate's decision pursuant to s.86 of the Service
and Execution of Process Act 1992 (Cth) and, on the hearing of that review, a Supreme Court Judge
found the warrant to be invalid and revoked the Magistrate's orders. It is from his Honour's judgment
that the appellant appeals.
The argument below and before this Court concerns the interpretation and application to this
case of s.27 of the Magistrates Court Act 1989 (Vic) and ss.80A and 82 of the Crimes Act 1958
(Vic). Those sections are relevantly in the following terms:
"27 (1) A charge must describe the offence which the defendant is alleged to have committed and a description of an offence in the words of the Act or subordinate instrument creating it, or in similar words, is sufficient.
(2) A charge must identify the provision of the Act or subordinate instrument
(if any) that creates the offence which the defendant is alleged to have committed.
... "
"80A (1) If -
(a)
a person does, or omits to do, an act or thing referred to in ss.81-87 (both inclusive) outside, or partly outside, Victoria; and
(b)
there is a real and substantial link within the meaning of sub-s.(2) between doing, or omitting to do, the act or thing and Victoria -
those sections apply to the act or thing or the omission as if it had been done, or
omitted to be done wholly within Victoria.
(2) For the purposes of sub-s.(1), there is a real and substantial link with
Victoria -
(a) if a significant part of the conduct relating to, or constituting the doing of the act or thing, or the omission, occurred in Victoria; or (b) where the act or thing was done, or the omission occurred, wholly outside Victoria, if the act or thing was done, or omitted to be done, with the intention that substantial harmful effects arise in Victoria and such effects did arise."
"82 (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.
... "
The argument for invalidity of the warrant, accepted by the learned Judge below, relied on
s.80A and a concession by the appellant that the respondent was at no relevant time in Victoria. His
Honour thought that that concession meant that "it is inevitable that the prosecution must rely on s.80A".
He concluded that, because it was necessary to rely on s.80A, s.27 required it, and the factual matters
to be proved under it, to be identified in the charge; and that the failure to do that rendered the warrant
invalid.
Before this Court it was common ground that, s.80A aside, the respondent could have been a
party to the offence charged notwithstanding his absence from Victoria at all relevant times; he could
have made the false representation in Melbourne by means of an agent, perhaps one of the other
defendants.
The charge alleges the obtaining of a financial advantage by a deception, a false representation, made in Melbourne. It does not allege as the deceptive act, or as part of the deceptive act, the making of the valuation report; rather it is the representation of that valuation report, in Melbourne, as a good
and genuine valuation report establishing the fair market value of a property. It does not therefore, in
my view, rely on s.80A. That section relevantly envisages the deceptive act, or part of the deceptive
act occurring outside Victoria; for example, the furnishing of a false valuation to a person in Queensland
with the intention that he or she should be defrauded of money in Victoria where that occurred. In that
case s.82 would apply as if the false valuation had been furnished in Victoria. But that is not this case.
The result in my view is that the charge is adequate to describe an offence committed by the
respondent in Melbourne notwithstanding his presence at all relevant times in Queensland. In
consequence the warrant in my view is not invalid and the orders made by the learned Magistrate were
correctly made. It is true that, before this Court, the appellant was not prepared to abandon reliance
on s.80A. However whether the prosecution may rely on s.80A is not, in my view a question which
arises on this appeal. It is sufficient for present purposes that, consistently with the concession made,
there is a properly constituted charge describing an offence which the respondent is alleged to have
committed in Melbourne.
I would allow the appeal. I agree with the orders proposed by the President.
IN THE COURT OF APPEAL
| SUPREME COURT OF QUEENSLAND | Appeal No. 2061 of 1996 |
| Brisbane | |
| Before | Fitzgerald P. |
Davies J.A. Demack J.
[O’Sullivan v. Verebes]
BETWEEN:
JAMES PATRICK O’SULLIVAN
(Respondent) Appellant
AND:
TIBOR JENO VEREBES
(Applicant) Respondent
REASONS FOR JUDGMENT - DEMACK J.
Judgment delivered 11/10/1996
I agree with the reasons for judgment of the other members of the Court.
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