R v Saba

Case [2013] QCA 275

SUPREME COURT OF QUEENSLAND

CITATION:

R v Saba [2013] QCA 275

PARTIES:

R
v
SABA, Daas Ramez
(appellant)

FILE NO/S:

CA No 283 of 2012
DC No 1438 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:


District Court at Brisbane

DELIVERED ON:

Orders delivered ex tempore 31 May 2013
Reasons delivered 27 September 2013

DELIVERED AT:

Brisbane

HEARING DATE:

31 May 2013

JUDGES:

Fraser JA and Applegarth and Jackson JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Delivered ex tempore on 31 May 2013:

1.    The appeal is allowed;

2.    The appellant’s convictions are set aside; and

3.    The appellant is discharged.

CATCHWORDS:

CRIMINAL LAW – PARTICULAR OFFENCES – PROPERTY OFFENCES – OTHER FRAUDS AND IMPOSITIONS – FRAUD – GENERALLY – where the appellant gained the appearance of control by changing the ASIC register to show that he was the sole director and shareholder of two companies – meaning of “benefit” – whether the appearance of control of a company is a benefit

Corporations Act 2001 (Cth), s 120(1), s 128, s 129, s 135, Pt 2D.1, s 198E, s 201A s 201F, s 201G, s 203C, s 205B, s 350, s 351, s 352, s 1274, s 1274A, s 1308
Crimes Act 1900 (NSW), s 192E
Crimes Act 1914 (Cth), s 29A, s 29B
Criminal Code 1995 (Cth), s 135.2
Criminal Code of 1995 (Qld), Act No 37 of 1995
Criminal Code 1899 (Qld), s 1, s 59, s 60, s 87, s 92A, s 98C, s 101, s 118, s 120, s 121, s 122, s 127, s 133, s 391, s 408C, s 408E, s 415, s 427A, s 430 s 442A, s 568, s 583
Criminal Law Amendment Act 1997 (Qld)

Bacon v Salamane (1965) 112 CLR 85; [1965] HCA 22, considered
Bolitho v The State of Western Australia (2007) 34 WAR 215; [2007] WASCA 102, considered
Guillot v Hender (1999) 86 FCR 294; [1999] FCA 322, considered
Hansen v Archdall (1930) 44 CLR 265; [1930] HCA 16, followed
Moylan v The State of Western Australia (2007) 169 A Crim R 302; [2007] WASCA 52, considered
Yates v Wilson (1989) 168 CLR 338; [1989] HCA 68, considered

COUNSEL:

S Ryan for the appellant
P J McCarthy for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

  1. FRASER JA:  I agree with the reasons for judgment of Jackson J.

  1. APPLEGARTH J:  I agree with the reasons for judgment of Jackson J.

  1. JACKSON J:  On 31 May 2013, this Court allowed this appeal, set aside the appellant’s convictions, and discharged the appellant.  These are the reasons for those orders.

  1. The indictment charged the appellant on two counts of contravention of s 408C(1)(d) of the Criminal Code as follows:

“that on a date or dates unknown between the first day of December,…

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Details
AGLC
R v Saba [2013] QCA 275
Case
[2013] QCA 275
Decision Date

CaseChat Overview and Summary

The case of R v Saba involved the appellant, who stood accused of fraud. The crux of the dispute centred on the appellant’s actions in altering the Australian Securities and Investments Commission (ASIC) register to reflect himself as the sole director and shareholder of two companies. This manipulation gave the impression that he had exclusive control over these companies. The appellant was subsequently convicted of fraud by the Supreme Court of Victoria, a decision he sought to appeal.

The legal issues that came before the court were twofold. Firstly, whether the act of altering the ASIC register to falsely depict oneself as the sole director and shareholder constituted a fraudulent act. Secondly, the court had to determine whether the appearance of control over a company could be considered a "benefit" within the context of the fraud charges. The appellant argued that the alteration of the register did not provide him with a tangible benefit, as it did not confer any financial or practical advantage to him. Rather, it merely created an illusion of control.

The court, in delivering its judgment, found in favour of the appellant. It was held that the alteration of the ASIC register did not amount to a fraudulent act as it did not result in any direct or indirect benefit to the appellant. The court reasoned that for an act to be considered fraudulent, it must provide some form of tangible benefit to the perpetrator. In this case, the appellant's actions did not provide him with any such benefit, as they did not confer any financial gain, nor did they enable him to exercise any additional control or authority over the companies. The court concluded that the appellant's actions did not meet the criteria for fraud as defined by the law.

The appeal was thus allowed, the appellant's convictions were set aside, and he was discharged. The court's decision underscored the necessity of a tangible benefit in constituting a fraudulent act, and highlighted the importance of accurately interpreting legal definitions in criminal cases.

Orders

Orders of the court

Delivered ex tempore on 31 May 2013:

1. The appeal is allowed;

2. The appellant’s convictions are set aside; and

3. The appellant is discharged.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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