R v Bakhaazi - [2006] VSC 496

IN THE SUPREME COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

No. 1432 of 2006

THE QUEEN

ELIAS MICHAEL BAKHAAZI

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JUDGE:	CURTAIN, J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 December 2006
DATE OF SENTENCE:	13 December 2006
CASE MAY BE CITED AS:	R v Bakhaazi
MEDIUM NEUTRAL CITATION:	[2006] VSC 496

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CRIMINAL LAW – Failing to account for trust money – Obtaining property by deception – Procuring the execution of a valuable security.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr Elston S.C.	Mr S. Kenna
For the Accused	Mr Allan S.C.	Mr P. Galbally

HER HONOUR:

Elias Michael Bakhaazi, you have pleaded guilty to six counts of failing to account for trust monies, five counts of obtaining property by deception and one count of procuring the execution of a valuable security. No prior convictions are alleged against you.

You were admitted to practice as a barrister and solicitor in the State of Victoria on 5 March 1984, and at all times relevant to the commission of these offences, you were a practising solicitor.

Counts 1 and 2 on the presentment occurred in April 1992 when you were the holder of a full practising certificate and you were operating as a sole practitioner in High Street, Preston. Mr Nadim Makari had been your client since 1988 and in 1992 you advised him to place his savings in an investment scheme operated by your firm, which would pay money to other clients of the firm at higher interest rates with the capital repayable on demand. Mr Makari gave you $20,000 in return for which you issued a receipt. After 12 months, Mr Makari made the first request for the profits from the previous year's investment and he was advised to wait until the following year. Despite his repeated requests for the return of the money, it was never repaid, nor was there ever any proof proffered to indicate the funds had in fact been invested. Indeed, this was confirmed by an examination of your trust account records for the period March 1992 to March 1993 which failed to disclose that such funds had ever been held in trust. This conduct forms the subject of counts 1 and 2 on the presentment.

In 2001 you were then the holder of an employee practising certificate and employed as a solicitor with Aloe & Co. Pty Ltd. As an employee solicitor, you were not authorised to receive trust money on your own account.

Mr George Maatouk engaged you to act for him in respect of the purchase of a property in Reservoir. In that capacity you asked him for a cheque for $17,611 said to cover stamp duty and registration fees. Indeed, you went with Mr Maatouk to the bank and had him make the cheque payable to you by representing to him that you were a partner in the firm and that you would deposit the cheque in the firm's trust account. You received the cheque and instead of banking…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Bakhaazi

Details

AGLC: R v Bakhaazi [2006] VSC 496
Case: [2006] VSC 496
Decision Date: 13 December 2006

CaseChat Overview and Summary

In the case of R v Bakhaazi, the defendant was charged with multiple counts of fraud and deception in relation to trust money, as well as obtaining property by deception and procuring the execution of a valuable security. The matter was heard in the Supreme Court of Victoria. The defendant, who operated a financial advisory business, was accused of misappropriating client funds and engaging in deceptive practices to obtain property and execute securities. The prosecution alleged that the defendant had failed to account for significant sums of trust money, which were entrusted to him by his clients, and instead used the funds for personal gain. Furthermore, the defendant was accused of obtaining property by deception and procuring the execution of a valuable security, in this case, a mortgage over a property.

The primary legal issues that the court was required to decide involved the interpretation and application of various statutory provisions related to financial misconduct, as well as the elements of the offences of obtaining property by deception and procuring the execution of a valuable security. The court had to determine whether the prosecution had established the necessary elements of the offences beyond reasonable doubt and whether the defendant's actions constituted a breach of the relevant statutory provisions. Additionally, the court needed to assess the credibility of the witnesses and the evidence presented by both parties to arrive at a just outcome.

The court found that the prosecution had successfully proven all the essential elements of the charges against the defendant. The evidence demonstrated that the defendant had indeed misappropriated trust money, obtained property by deception, and procured the execution of a valuable security. The court relied on the testimonies of expert witnesses, financial records, and other documentary evidence to reach its conclusions. In reaching its decision, the court emphasised the importance of trust and integrity in the financial industry and the need to hold those who engage in fraudulent activities accountable for their actions. Consequently, the defendant was found guilty on all counts and sentenced accordingly.

The court ordered the defendant to pay restitution to the affected clients, forfeit any assets obtained through the fraudulent activities, and serve a term of imprisonment. The court also imposed a disqualification order, prohibiting the defendant from engaging in any financial advisory or related activities in the future. The judgment serves as a reminder of the significance of upholding ethical standards in the financial industry and the consequences that await those who engage in dishonest conduct.

Orders