R v Abouhassoun

[2010] NSWDC 287

CITATION:	R v Abouhassoun [2010] NSWDC 287
HEARING DATE(S):	3 and 4 March 2010
JUDGMENT DATE:	4 March 2010
JURISDICTION:	Criminal Jurisdiction
JUDGMENT OF:	Johnstone DCJ
DECISION:	The conviction is quashed, and the orders of the learned Magistrate are revoked.
CATCHWORDS:	CRIMES - conviction appeal - appellant convicted on 211 charges of false or misleading statements made with the intention of obtaining money being alleged false claims under the Taxi Transport Subsidy Scheme (TTSS) - unreliable essential Crown witness - reasonable doubt - prosecution case not made out
LEGISLATION CITED:	Crimes Act 1900 - s178BB Transport Administration Act 1985
PARTIES:	Crown Ramzi Abouhassoun (Appellant)
FILE NUMBER(S):	08/6363 - 4 081 - 100
COUNSEL:	Mr P O'Donnell (Crown) Mr Parente (Appellant)

REASONS FOR JUDGMENT

1. This is a conviction appeal from the decision of the Local Court on 30 April 2008 when the appellant was found guilty of 211 offences under s178BB of the Crimes Act 1900 involving alleged false or misleading statements made with the intention of obtaining money. s178BB(1) provides:

“Whosoever with intent to obtain for himself or herself or another person any money or valuable thing or financial advantage of any kind whatsoever, makes or publishes or concurs in the making or publishing any statement (whether or not in writing) which he or she knows to be false or misleading in a material particular or which is false or misleading in a material particular and is made with reckless disregard as to whether it is true or is false or misleading in a material particular, shall be liable to imprisonment for five years”.

2. The Department’s case, in summary, is that between 1 July and 31 August 2005, the appellant made 211 false claims under the Taxi Transport Subsidy Scheme (TTSS) administered by the Ministry of Transport.

3. The TTSS is set up under s 39 of the Transport Administration Act 1985 and provides for subsidised taxi travel for participants with recognized disabilities. Under the scheme, a participating taxi passenger is provided with dockets for signature and presentation to the taxi driver who is entitled to claim reimbursement under the scheme for fifty percent of a metered taxi fare up to a ceiling of sixty dollars.

4. The intention of the scheme is that the passenger will pay the taxi driver the balance of the fare, for the dockets are negotiable to the extent that they may be used as - sorry, at certain depots to pay for fuel or given by drivers to owners for the shift hire fees or are redeemable for cash.

5. At the relevant time, the appellant was a registered taxi driver. He redeemed two hundred and eleven TTSS dockets in respect of fares for taxi travel claimed to have been provided to a TTSS participant, Mr Wayne Lawes, in the months of July and August 2005. His claims were based upon TTSS dockets purporting to have been provided and signed by Mr Lawes.

6. Of these 211 dockets, 81 involved travel to or from Hornsby, 57 involved travel to or from Bondi Junction and 12 involved trips to or from St Leonards. The balance involved travel to other locations.

7. The Department’s case was that none of the 211 trips occurred. Its case relied essentially on the evidence of Mr Lawes, who said he did not undertake the trips.

In particular, he said he had never taken a taxi trip to Hornsby, St Leonards or Bondi Junction in those months.

8. Each of the 211 dockets redeemed by the appellant bore what purported to be Mr Lawes’ signature. Mr Lawes, however, denied that the signature on 199 of the dockets was his signature. He conceded only that his signature appeared on 12 of the dockets.

9. It is important to note that in respect of these 12 dockets, that is, the ones that Mr Lawes said he did sign, the destinations or point of departure on all 12 was in fact either Hornsby, St Leonards or Bondi Junction. Of those 12 dockets, nine of them relate to travel between 2 July and 6 July 2005.

10. But in his evidence before me on appeal, Mr Lawes said he was not even in Sydney until 7 July 2005. Rather, he only arrived from Coffs Harbour on that date and did not even meet the appellant until a few days after that. Yet, according to his evidence before me, he never signed a blank docket other than on one single occasion and never signed a docket that contained false particulars. It is to be noted that his evidence before the Local Court was quite different.

11. The Department brought this prosecution before the Magistrate on 30 April 2008. It relied essentially on the evidence of Mr Lawes that none of the 211 dockets in question was genuine.

12. Mr Lawes described in evidence how he was interviewed by an investigating officer on behalf of the Department when he was shown a large number of dockets relating to the months of July and August 2005. As I understand it, the appellant had redeemed 250 dockets from these months. Mr Lawes identified 211 as specifying taxi trips purporting to have been taken by him with the appellant, but which he says he did not undertake.

13. Mr Lawes was asked why he had identified those 211 dockets as not being genuine and he pointed firstly to the vast majority of the signatures as not being his signature. Secondly, he pointed to the destinations involved and said he had not been to those places by taxi in those months of 2005.

14. The learned Magistrate found the appellant guilty of each of the 211 matters. It is from that decision that the appellant brings this appeal.

15. In his reasons, the Magistrate started by acknowledging that the evidence of Mr Lawes was to be regarded with great caution. He pointed to matters such as changes in his evidence and the fact that he is a self-confessed alcoholic. Thus, he went on to discuss material that he considered lent support to Mr Lawes evidence and the Department’s case. He concluded that on the whole of the evidence, he was satisfied on the criminal standard that the charges were proved.

16. The matters to which the Magistrate adverted as supporting the Department’s case included conflicts in the evidence of the appellant, in particular the change in his story about the payment by Mr Lawes of the balance of each fare. Initially, he said that Mr Lawes had paid that portion, but in evidence he said that he did not always receive payment from Mr Lawes and that there was an agreement between him and Mr Lawes that Mr Lawes would pay him at a later date.

17. There were other matters adverted to by the Magistrate, including the absence of driver worksheets on the part of the appellant for particular days, the absence of evidence as to the need for Mr Lawes to travel to Hornsby, Bondi Junction and St Leonards, the sheer volume of trips, the consistent nature of the amount charged corresponding to the sixty-dollar ceiling under the TTSS scheme, and the variation in signatures.

18. I agree that some of these features may indeed create grounds for suspicion, but suspicion is no substitute for proof beyond reasonable doubt.

19. The essential witness to the Department’s case was Mr Lawes. His evidence, therefore, is to be examined and scrutinised with great care. The essence of Mr Lawes’ evidence is that the 211 trips in question never occurred and that the 211 dockets redeemed in relation to them were not genuine. As I have already noted, his evidence as to why the dockets were not genuine was based on two main factors; signature and destination.

20. As to signature, the Magistrate said this at 40:

“The final factor that I mentioned is that, and once again, not a great deal can be taken from this alone, the signatures, there is a huge range of signatures. In the early dockets, the signatures of Wayne Lawes are relatively readable, neat and consistent, but later dockets from pages 40, 41, 42 are totally different. No-one in their wildest dreams could say they resemble each other.

Now, I say I do not put a great deal of weight on that because the defendant said he was an alcoholic. That may be - that because the defendant said he was an alcoholic, that may be occasions where he was affected so badly that he just could not write.

Although I noticed, even in those cases where the signatures showed no resemblance to the earlier neater ones, nevertheless, they still remain within the appropriate line which seems to me somewhat inconsistent with the proposition that he is completely intoxicated, but as I say, that is not convincing one way or the other. It just goes into the general mix of evidence”.

21. I also took the evidence about the signatures into the mix, but in the opposite way. For my part, the evidence about the signatures was most unsatisfactory. I have looked at each of the 211 dockets. A large number of the signatures appear, to my inexpert eye, to be identical, including a comparison of those Mr Lawes said were genuine to those he said were not. Indeed, there are others that are very fuzzy, as the Magistrate mentioned, but that is not inconsistent, in my view, with the signature having been rendered whilst Mr Lawes was drunk which he conceded he was on a number of occasions and which the appellant says he was on most occasions. On reading the evidence of Mr Lawes given before the Magistrate, I found it quite unconvincing, particularly his reference to some “o’s” being confused with “a’s”.

22. Turning to the second critical feature of Mr Lawes’ evidence, namely, destination, he was quite adamant that he never went to those destinations in those months. The problem for the prosecution, however, as I have mentioned is that his signature appears on various dockets that he identified as containing his genuine signature that involved those destinations, namely, Hornsby, St Leonards and Bondi.

23. For my part, that alone is sufficient to create a reasonable doubt, but I rely not just on the unsatisfactory nature of that evidence, Mr Lawes, in my view, demonstrated his unreliability as a witness in a number of other ways. For example, he was adamant that he was in Coffs Harbour in July 2005. When pressed, he conceded that he came to Sydney on 7 July 2005 and did not meet the appellant until several days later. That is inconsistent with the dockets he concedes he signed between 1 July and 7 July 2005.

24. Then there was the evidence that he was often intoxicated during and at the conclusion of some of the trips and the inconsistencies in his evidence about how many times he used the appellant’s taxi services and how many times a day.

25. On the appeal, the appellant called a fresh witness, Mr Alan Abounakad who gave evidence of a chance meeting with the appellant at Hornsby in July 2005 at which time he also met Mr Lawes.

26. The evidence of Mr Abounakad is contained in a written statement dated 28 April 2009 which was Exhibit 1. In this, he says:

“Ramzi Abouhassoun is a friend of mine and he used to drive a taxi before 2006. In 2005, Ramzi told me about a passenger called Wayne Lawes. Ramzi used to pick him up with his taxi and take him to different destinations, including Hornsby and Bondi. Ramzi told me that Wayne had taxi dockets from the Ministry of Transport that allowed him to pay half the fare in cash then the Ministry pays the second half, that Ramzi used to take the half from the Ministry for the trip there and didn’t take the cash, as Wayne couldn’t afford to pay the cash and Ramzi was happy doing that because he had muscular dystrophy and he had to have a break every half hour, every one hour, so he used to take Wayne to a destination and wait for him so he can have a break and guarantee a job after the break.

Once, on July 2005, I saw Ramzi with his taxi in a car park near Hornsby station, as my car was parked there while I was seeing a friend on George Street. I don’t remember what date, but it was after 4pm. I approached Ramzi and he told me that he was waiting for Wayne Lawes. I had a chat with Ramzi for a few minutes then and Wayne came. It was the firstly and only time I have seen him. He was tall, obese with a tall beard and blue eyes and he was swearing and looked very angry and I understood from his words that he had been gambling and lost the money he had. Wayne got in Ramzi’s taxi and I went to my car and left”.

27. This evidence was supported by further short oral evidence from the appellant identifying the relevant date as 14 July 2005. He said he remembered the date by reference to his birthday a few days earlier. Mr Abounakad confirmed that the meeting occurred several days after he had been at the appellant’s house for his birthday party.

28. The Department called Mr Lawes to refute this episode, leading evidence from him that he did not meet Mr Abounakad at Hornsby on that day or ever.

He also denied having a beard as described by Mr Abounakad and he certainly does not have blue eyes.

29. Not unexpectedly, the prosecution attacked the evidence of Mr Abounakad as “convenient” and pointing to the discrepancies to which I have adverted and asking why this evidence was not led at the hearing before the Magistrate.

30. There are features of the evidence of Mr Abounakad that do raise questions, but balanced against that is the way in which he gave evidence before me. He struck me as a composed and straightforward witness, doing his best to give an honest and reliable account. I am unable to conclude that he fabricated his account.

31. Whilst there are a number of unsatisfactory features to the appellant’s case, the Department bears the onus of proof beyond reasonable doubt and if left with a reasonable doubt, I am bound in law to find the appellant not guilty.

32. In the result; having regard to the matters I have discussed, I am unable to satisfy myself beyond reasonable doubt as to the reliability of Mr Lawes‘ evidence on essential elements of the Department’s case. For that reason, the Department’s case as initially presented before the Magistrate was not, in my view, made out.

33. The Department in this appeal sought to make out an alternative case in respect of some eighteen of the dockets to the effect that the appellant misrepresented the proportion of the fare paid by the participant, Mr Lawes.

34. This, it was submitted, was a false or misleading particular in the appellant obtaining money in exchange for the docket, in contravention of 178BB(1).

35. For my part, I would not infer that construction from those documents, but even if I did, this was not a detail in the dockets necessary for the redemption of the dockets, such that the relevant particular could not be categorized as material.

36. For all these reasons, I am not satisfied beyond reasonable doubt that the prosecution has proved the essential elements of the offences alleged in respect of the two hundred and eleven dockets.

The appeal is therefore allowed and I order that:

(a) the conviction is quashed, and

(b) the orders of the learned Magistrate are revoked.