R v Ceylan - [2002] VSCA 53

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 170 of 2001

THE QUEEN
	v.
NEJAT CEYLAN

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JUDGES:	WINNEKE, P., BATT, J.A. and O'BRYAN, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 March 2002
DATE OF JUDGMENT:	19 April 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 53

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Criminal law – “Making” and “using” false documents – Adequacy of judge’s directions – Whether sufficient to meet the issues in trial – Need for judge to carefully explain concept of the document “telling a lie about itself” – Adequacy of judge’s directions following jury question also discussed – Crimes Act 1958; s.83A(1), (2) and (6).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms. S. Pullen	K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr. O.P. Holdenson Q.C.	Kenna Croxford & Co.

WINNEKE, P.:

In this case the applicant was convicted of three counts of “making a false document” and three counts of “using a false document” contrary to s.83A(1) and (2) respectively of the Crimes Act 1958; and one count of dishonestly obtaining a cheque contrary to s.81 of the Crimes Act. He was acquitted of four counts alleging similar offences. All the offences charged against the applicant arose out of events which occurred in 1996, and in relation to the applicant’s business as a “financial consultant” engaged by clients to make personal loan applications on their behalf to lending institutions – in each of these cases the Westpac Banking Corporation.

The applicant has applied to the Court for leave to appeal against the convictions recorded save and except the conviction for “dishonestly obtaining the cheque”, the subject of count 6. He also seeks leave to appeal against the sentences imposed by the trial judge. The total effective sentence was one of two years’ imprisonment with a non-parole period of 15 months. Nearly 12 months of that sentence has now been served.

Specifically, the applicant appeals against his conviction of the offences alleged in counts 3 and 4, counts 7 and 8, and counts 9 and 10 of the presentment. Counts 3, 7 and 9 alleged offences of “making a false document – to wit a personal loan application – with intent to defraud Westpac” on behalf of three separate clients; whilst counts 4, 8 and 10 alleged the “using” of those documents with the relevant intent. The statutory offences of “making a false document” (s.83A(1) of the Crimes Act) and “using a false document” (s.83A(2) of the Act) were created in 1988 to replace the common law offences of “forgery” and “uttering”.

After hearing argument from counsel for the applicant and respondent, I am of the opinion that the application for leave to appeal against the convictions recorded on counts 3, 4, 7, 8, 9 and 10 should be allowed, and the convictions quashed on the grounds of misdirection. In so concluding, I wish to make it clear that I have every sympathy for the trial judge whose task appears to me to have been a very difficult…

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 Ceylan

Details

AGLC: R v Ceylan [2002] VSCA 53
Case: [2002] VSCA 53
Decision Date: 19 April 2002

CaseChat Overview and Summary

The case of R v Ceylan involved the defendant, Ceylan, who was charged with making and using false documents. The case was heard in the Supreme Court of Victoria. The central dispute was whether the judge's directions to the jury were adequate in addressing the legal issues surrounding the definitions of "making" and "using" false documents, particularly in relation to the concept that a document "tells a lie about itself." The adequacy of the judge's response to a jury question was also a point of contention.

The court was required to determine whether the judge's directions were sufficient to enable the jury to properly understand and apply the law as it related to the creation and usage of false documents. The primary legal issue was whether the judge had sufficiently explained the concept that a document "tells a lie about itself" when it falsely represents something. Additionally, the court considered whether the judge's response to a question from the jury adequately addressed the concerns raised by the jury.

The court found that the judge's initial directions did not adequately explain the concept of a document "telling a lie about itself." The court held that the judge needed to carefully delineate this concept to ensure the jury could apply it correctly. Furthermore, the court examined the judge's response to a question from the jury and found it did not sufficiently address the jury's concerns, leading to an inadequate overall explanation of the legal principles involved. Consequently, the court concluded that the judge's directions did not meet the required standard.

The court ordered a retrial, emphasising the necessity for the judge to provide clear and comprehensive directions to the jury on the relevant legal principles.

Orders