Santesso v Tasmania - [2016] TASCCA 4

[2016] TASCCA 4

COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION: Santesso v Tasmania [2016] TASCCA 4

PARTIES:  SANTESSO, Ornella Mirella
  v
  STATE OF TASMANIA

FILE NO:  CCA 219/2015
DELIVERED ON:  10 March 2016
DELIVERED AT:  Hobart
HEARING DATE:  3 March 2016
JUDGMENT OF:  Blow CJ, Tennent and Wood JJ

CATCHWORDS:

Criminal Law – General matters – Ancillary liability – Attempt – Particular offences – Other cases – Fraud on a creditor – Submitting loan application with forged signatures.

Criminal Code (Tas), s 2.
Nicholson v The Queen (1993) 14 Tas R 351, referred to.
Director of Public Prosecutions v Stonehouse [1978] AC 55, distinguished.
Aust Dig Criminal Law [2149]

REPRESENTATION:

Counsel:
             Appellant:  C Gunson
             Respondent:  A R Jacobs
Solicitors:
             Appellant:  Wallace, Wilkinson & Webster
             Respondent:  Director of Public Prosecutions

Judgment Number: [2016] TASCCA 4
Number of paragraphs: 27

Serial No 4/2016
File No CCA 219/2015

ORNELLA MIRELLA SANTESSO v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

BLOW CJ
TENNENT J
WOOD J
10 March 2016

Order of the Court (3 March 2016)

Appeal dismissed.

Serial No 4/2016
File No CCA 219/2015

ORNELLA MIRELLA SANTESSO v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

BLOW CJ
TENNENT J
WOOD J
10 March 2016

The appellant, Ornella Santesso, was tried before Porter J on five fraud-related charges, was found guilty by the jury on all charges, and appealed against her convictions. On 3 March 2016 this Court dismissed her appeal. These are our reasons for dismissing it.
The charges related to a home loan application form and accompanying documents which the appellant submitted to a mortgage broker in January 2011. The Crown case was essentially as follows. In January 2011 the appellant was married to a Mr Ghedini. They were living together in a house at Tolman's Hill. They owned that house, subject to a mortgage to a company that was referred to at the trial as Members Equity Bank. In late 2010 the appellant telephoned a mortgage broker, referred to at the trial as New South Wales Mortgage Corporation, in the Sydney suburb of Burwood, and spoke about the possibility of refinancing the property. At some stage she proposed a new loan of $565,000 for refinancing and for home renovations. On 18 January 2011 she phoned the broker again, and completed and mailed to the broker a home loan application form, forms relating to the verification of her identity and her husband's identity, and photocopies of their passports, driver licences, and Medicare card, certified to be true copies. On those documents she forged the signatures of her husband and his brother-in-law, Sgt Darren Latham, a police officer. Neither her husband nor Sgt Latham knew anything about the documents or the proposed loan transaction. The Crown contended that the appellant intended to refinance the property without her husband's knowledge, not to carry out any renovations, and to retain the net proceeds of the loan after…

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 Santesso v Tasmania

Details

AGLC: Santesso v Tasmania [2016] TASCCA 4
Case: [2016] TASCCA 4
Decision Date: 10 March 2016

CaseChat Overview and Summary

Santesso v Tasmania concerned an appeal to the Full Court of the Supreme Court of Tasmania against a conviction for submitting a loan application containing forged signatures. The appellant, Santesso, had been found guilty of an offence under section 263(1)(b) of the *Criminal Code* (Tas), which relates to defrauding a creditor.

The central legal issue before the Full Court was whether the appellant's conduct, specifically the submission of a loan application with forged signatures, constituted an attempt to defraud a creditor within the meaning of the relevant section of the *Criminal Code*. The court was required to consider the elements of the offence and whether the appellant's actions met the threshold for an attempt.

The Full Court reasoned that the offence of defrauding a creditor required proof that the accused intended to defeat or delay the creditor and that the accused did an act towards that purpose. In this instance, the submission of the loan application, which contained forged signatures and was intended to secure funds, was considered a sufficient act towards defrauding the creditor. The court applied the principles of criminal attempt, finding that the appellant had gone beyond mere preparation and had taken a substantial step in the commission of the intended fraud.

The appeal was dismissed, and the conviction was upheld.

Orders

Orders of the court

Appeal dismissed.

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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