R v O'Hara

[2021] NSWDC 157

District Court

New South Wales

Medium Neutral Citation:

R v O’Hara [2021] NSWDC 157

Hearing dates:

08 March 2021

Date of orders:

10 March 2021

Decision date:

10 March 2021

Jurisdiction:

Criminal

Before:

Neilson DCJ

Decision:

Leave granted to Crown to file proposed 4 indictments. Applicant directed to file written pleas to each indictment.

Catchwords:

CRIME – PRACTICE AND PROCEDURE – Application for stay of proceedings – A charged initially with 617 counts on one indictment – Crown later presented 5 indictments containing in total 617 counts – A seeks stay until Crown presents indictment that is not oppressive or vexatious – Crown proposes to present 4 indictments containing 206 counts – Leave granted to Crown to present 4 indictments.

Legislation Cited:

Crimes Act 1900

Criminal Procedure Act 1986

Cases Cited:

R v Smart [1983] 1 VR 265

Category:

Procedural rulings

Parties:

Applicant – Ryan O’Hara
Crown – Regina

Representation:

Applicant – M. Rumore
Crown – S. Lind (Crown Prosecutor)

File Number(s):

2018/00343446, 2018/00363508, 2019/00014379, 2019/00053845, 2019/00039066, 2019/00234103, 2019/00304481, 2019/00341508, 2020/00084377

Publication restriction:

Nil.

Headnote

Application for stay of proceedings. Applicant charged initially with 617 counts on one indictment. Later, Crown presented 5 indictments but they still contained 617 counts. Applicant seeks stay until Crown presents an indictment that is not oppressive or vexatious. Crown now proposes to present 4 indictments containing 206 counts as follows:

Indictment       Counts

1                        51

2                        62

3                        54

4                        39

The Crown alleges Applicant made 104 fraudulent applications for motor vehicle finance. Many were successful, a lesser number were not. If application was successful, the next count concerned dealing with the proceeds of crime.

Modus operandi of Applicant as alleged by Crown was straightforward and easily capable of being understood by a jury. A number of counts in some of the proposed indictments contained related criminal e.g. false applications for bank accounts.

Final 3 counts in proposed first indictment relate to alleged violence by Applicant against Police OIC. Relied upon by the Crown as consciousness of guilt, seeking to avoid apprehension, followed by 7 months “on the run”. If tried separately, Crown would still be able to call evidence to explain why OIC was seeking to arrest Applicant, i.e. a lawful arrest, and also evidence as to Applicant’s motive, so, despite a request for severance, those counts should be tried with the others.

Leave granted to Crown to file proposed 4 indictments. Applicant directed to file written pleas to each indictment.

Judgment

1. HIS HONOUR: Before me is a notice of motion filed by the accused on 19 November 2020 seeking that the proceedings against him be stayed until an indictment be presented by the prosecution that is not oppressive or vexatious. The second prayer for relief is the usual prayer for such alternative relief as the Court may see fit to grant.

2. On 23 October 2020 the Crown presented an indictment containing 617 counts. On that date the list judge, Yehia DCJ , invited counsel for the accused to make an application for a permanent stay of the proceedings on the basis that the indictment was oppressive. That led to the filing of the notice of motion on 19 November.

3. On 11 December 2020 the Crown presented five separate indictments, but they, all told, contained 617 counts. The first indictment contained 159 counts, the second indictment contained 95 counts, the third indictment contained 82 counts, the fourth indictment contained 165 counts and the fifth indictment contained 116 counts. Little was achieved by the filing of those five separate indictments, other than to indicate that the Crown thought that there could be five consecutive trials.

4. I have been told that the Crown now intends to file four separate indictments and the Crown seeks leave to do so. The first indictment will contain 51 counts, the second indictment will contain 62 counts, the third indictment will contain 54 counts and the fourth indictment will contain 39 counts. In other words, there has been a reduction in the number of charges from 617 to 206. That is something that would assist the accused.

5. The essence of the charges is a number of allegedly fraudulent applications for motor vehicle finance. The proposed first indictment, containing 51 counts, refers to 25 such alleged fraudulent finance applications. The second proposed indictment refers to 30 alleged fraudulent motor vehicle finance applications. The third proposed indictment will contain 54 counts relating to 28 alleged fraudulent motor vehicle finance applications. The fourth proposed indictment will contain 39 counts relating to 21 alleged fraudulent motor vehicle finance applications.

6. Annexed to MFI 2, Crown submissions, are summaries of the proposed indictments. I shall refer only to the summary of the proposed first indictment, as it seems to represent the structure of all the proposed indictments.

7. The first count is an allegation that the accused, using the alias Paul Adams, completed, executed and submitted a loan application to Liberty Finance, attaching a false licence and false payslips. That application, it appears, was not approved.

8. The second count is an allegation that the accused, using the alias David Chambers, completed, executed and submitted a loan application to Liberty Finance and Secure Funding Pty Limited, attaching false documents, as a result of which finance was approved and $64,395.20 was paid out.

9. The third count is that the accused dealt with the proceeds of that crime by arranging for a tow truck to collect the vehicle and to tow it to his home, and then to pay the tow truck driver in cash and then that the accused sold the vehicle to another.

10. The pattern then contained in the first proposed first indictment consists of making a fraudulent application and then dealing with the proceeds of a successful application by arranging a tow truck to pick up the vehicle, paying the tow truck driver and then selling the vehicle to a third party.

11. Some of those applications were unsuccessful. For example, count 10 was an unsuccessful application for motor vehicle finance, as was count 13. Other unsuccessful applications were counts 16, 17, 18, 19 and 20, but counts 20 and 21 refer to a successful application for motor vehicle finance and then dealing with the proceeds of the crime. There follow eight successful applications for motor vehicle finance and allegations of dealing with the proceeds of crime. Then there is an unsuccessful application followed by two successful applications which involve two counts, one causing a financial disadvantage by deception and dealing with the proceeds of crime.

12. It would appear that the modus operandi alleged by the Crown is similar, or, indeed, identical, for each successful and unsuccessful operation, that the accused used an alias and that he submitted false documents seeking to obtain the finance and when he did so he took possession of the vehicle, but then on-sold it.

13. The final counts in the first indictment relate to related offences. Count 44 relates to registering at least 123 separate mobile phone numbers in the name of an alias. Count 45 relates to gambling $9,592,867.80 at Star Casino, which the Crown alleged was dealing with the proceeds of the accused’s crimes. There are other allegations of dealing with the proceeds of crime. Three of those relate to searches of premises rented by the accused in which substantial amounts of cash were found by the police when search warrants were executed. For example, count 48 is a finding of $53,928.45 in cash located during the execution of a search warrant at premises in Wesley Street, Greenacre.

14. The final three counts in the first indictment do not fall within this pattern. Count 49 is an allegation of causing grievous bodily harm to a police officer in the execution of his duty, being reckless as to causing actual bodily harm. That is an offence against s 60 (3) of the Crimes Act 1900. The short facts are these, that when police officers went to arrest the accused, the accused reversed his car causing a passenger door to strike Detective Senior Constable Richard Saunders, whom I understand to be the officer in charge, causing him to suffer an ongoing injury to his shoulder. Count 50 is a charge in the alternative, for assaulting a police officer in the execution of his duty. Count 51 is an allegation of using an offensive weapon with the intent to prevent lawful apprehension, an offence against s 233B (1) (a) of the Crimes Act 1900. It is not listed as being an alternative charge.

15. I have heard submissions from Mr Rumore for the accused about the need to sever at least those three charges from the rest of the first indictment, because they relate to a completely extraneous matter and might be used by the jury unfairly, in that they might paint him as a man not only prone to fraud, but a man prone to violence. However, the Crown submits that those counts should remain in this indictment, because what it represents was an acknowledgement of guilt in seeking to escape apprehension, that is arrest, and the fact that the police could not arrest the accused until some seven months later. The Crown alleges that that is further evidence of consciousness of guilt, that is, staying “on the run” or out of the clutches of the constabulary for a period of seven months. It is possible that a jury might accept that such behaviour does represent consciousness of guilt and, therefore, even if this charge were not prosecuted on this indictment the Crown could allege that it was consciousness of guilt and lead the evidence in any event.

16. The other indictments refer to a number of applications for motor vehicle finance, both successful and unsuccessful, as well as some related offences such as applying for bank accounts in the name of an alias. There is also one count of dishonestly obtaining property by deception by providing 17 different residential addresses to Centrelink so that frozen payments would be released. Minds will obviously differ, but it needs to be considered, whether dealing with a Commonwealth entity about Centrelink payments could be the subject of a charge under New South Wales law, because it might be thought that the Commonwealth legislation would cover the field with respect to claiming Federal benefits.

17. The third indictment only relates to successful applications for motor vehicle finance, and the fourth indictment relates to both successful and unsuccessful applications for motor vehicle finance.

18. All told the current proposed 206 counts contained on four indictments refers to 104 alleged fraudulent motor vehicle applications, the majority of which appear to have been successful and the lesser number being unsuccessful.

19. The Court has power to stay either permanently or temporarily proceedings which are oppressive. In R v Smart [1983] 1 VR 265 the full Court of the Supreme Court of Victoria considered that the propriety of an indictment containing 63 counts. Their Honours said this:

“The fact that the applicant was presented on 63 counts was not of itself a conclusive reason for severance, but it strongly suggests an oppressive proceeding and accordingly the Crown must justify the course taken.”

In Victoria an indictment is known as a presentment. That case can be distinguished. There was a complex set of factual circumstances relating to payments giving rise to the charges and a necessity for the jury to trace those payments through several entities. This does not appear to be a case of that nature. Considering merely the first proposed indictment a jury is quite capable of understanding 25 motor vehicle finance applications, understanding whether the application was successful or unsuccessful and if it were successful in understanding the accused’s taking possession of the vehicle that he had bought and then selling it on and pocketing the cash. This is not a sophisticated set of transactions, but a set of transactions that is easily understandable by a jury, and the multiplicity of the counts is mainly due to the fact that many of the applications were successful. Dealing with 104 such transactions in for separate trials, either consecutively or non-consecutively, would not, in my view, be oppressive. The fact is, if there were such a large number of fraudulent transactions, that the law needs to be enforced.

20. It is also evident to all that the Crown will rely on tendency evidence in respect of one count alleging a fraudulent motor vehicle application to support other allegations of the same offence. However, the Crown has told me, and I am prepared to accept, that, for example, on the trial on the first proposed indictment only the 24 other fraudulent motor vehicle finance applications alleged on that indictment will be used as tendency evidence rather than all of the 104 alleged fraudulent motor vehicle finance applications. That will make the presentation of the case easier for the Crown and easier for the defence, because the evidence will be limited to the same factual matrix that gives rise to all counts in that indictment rather than, for example, calling evidence of the 104 fraudulent transactions on an indictment relating only to 25 of those fraudulent transactions.

21. It ought be clear from what I have already said that the Crown alleges that the accused made a considerable amount of money from these applications, in that he was able to wager at that the Star Casino in Sydney over $9.5 million.

22. The difference between the 617 original counts and the remaining 206 counts is that the Crown has not proceeded with charging the accused with the production of each fraudulent instrument used in the alleged fraudulent applications. That was very proper, because as a matter of sentence, the offence alleged under s 192B or 192J encompasses the application being supported by fraudulent material and, therefore, would not attract any greater penalty.

23. For those reasons I grant leave to the Crown to present four indictments, the first containing 51 counts, a second containing 62 counts, subject to the caveat I have raised about the Centrelink offence, a third indictment containing 54 counts and a fourth indictment containing 39 counts.

24. I direct the Crown to file and serve those four indictments within seven days.

25. Pursuant to s 19 (1) of the Criminal Procedure Act 1986 I order the accused to file and serve written pleas to each count in each indictment within 28 days of service of the indictments. The written pleas are to be headed “Pleas” and are to recite each count of the indictment and record the plea to that count under the count. Such document to be signed by the accused and the accused’s solicitor.

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Decision last updated: 24 February 2022