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

1. 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.

2. 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 paying out the original mortgagee and paying all necessary expenses.

3. There was uncontroversial evidence that the appellant mailed five documents to the mortgage broker on 18 January 2011, as follows:

   ·     One was entitled "Customer Assessment and Home Loan Application Form". It was a standard form, bearing the logo of a company named RAMS Financial Group Pty Ltd, which apparently was known as RAMS Home Loans.  That document was signed in four places – twice by the appellant with her own signature, and twice purportedly by her husband.

   ·     There was also an RAMS Home Loans form entitled "IDENTIFICATION BY CERTIFIED COPY" relating to the identity of the appellant's husband.  It was purportedly signed by him.  It was also purportedly signed by Sgt Latham, under the words, "I declare that I have verified the identity of the person detailed in Section 3 and I have sighted original identification documents". 

   ·     Accompanying that form there was a piece of paper bearing photocopies of the husband's driver licence, the page from his passport with his photo on it, and the Medicare card.  On that page was written, "This is a true certified copy". Under those words and the date there was a signature purporting to be that of Sgt Latham.

   ·     There was another RAMS Home Loans "IDENTIFICATION BY CERTIFIED COPY" form relating to the appellant.  It was signed by her, and purportedly signed by Sgt Latham, declaring that he had verified her identity and so forth. 

   ·     Finally, there was a page bearing photocopies of the appellant's driver licence, the page from her passport with her photo on it, and the Medicare card.  Again, this was endorsed, "This is a true certified copy", dated, and purportedly signed by Sgt Latham.

4. The five charges on the indictment can be summarised as follows:

   ·     Count 1 was a charge of forging the home loan application form by purporting to sign her husband's signature in two places on it.

   ·     Count 2 was a charge of forging the second and third documents listed above by forging the two signatures on the identification form and by forging Sgt Latham's signature on the page of photocopies.

   ·     Count 3 was a charge of forging the fourth and fifth documents listed above by forging Sgt Latham's signature on them.

   ·     Count 4 was a charge of uttering the five documents by forwarding them to the mortgage broker "with a direction or request that they be used in obtaining a loan from RAMS Home Loans also known as RAMS Financial Group Pty Ltd".

   ·     Count 5 alleged that the appellant had attempted to commit the crime of "fraud on a creditor" by "attempting to incur a debt or liability namely a loan of $565,000 from RAMS Home Loans secured over the residence at … Tolmans Hill in Hobart, with intent to defraud".  It was alleged that the appellant had falsely pretended that her husband was joining in the loan application and that he had signed documentation accordingly. 

5. In his opening speech at the trial, the appellant's counsel told the jury that the signatures of the appellant's husband and Sgt Latham on the documents in question were all written by her. There was uncontradicted evidence that the husband knew nothing about the documents or any proposed loan transaction.

6. The appellant contended at the trial that there was no evidence that she had any intention to defraud anyone at the relevant time, and that her submission of the forged documents was too remote from the possible future obtaining of a $565,000 loan to constitute an attempt to commit the crime called "fraud on a creditor".  On the basis of those contentions, the appellant's counsel submitted to the learned trial judge that she had no case to answer in relation to each count.  That submission was unsuccessful.

7. The appellant's contentions at the hearing of the appeal were essentially the same as those at the trial. Two grounds of appeal were pursued. Ground 1 relates to count 5, and the remoteness argument.  Ground 2 relates to all five counts, and the issue of intention to defraud.  Because of the order of the charges on the indictment, we will address ground 2 first.

Ground 2 – Intention to defraud

1. This ground reads as follows:

   "2   The learned trial judge erred in law by ruling, at the conclusion of the Crown case that the appellant had a case to answer, that there was evidence upon which a jury properly instructed could be satisfied that:

   athe appellant forged the documents the subject of charges 1, 2 and 3 on the indictment 'with intent to defraud';

   bthe appellant uttered the documents the subject of charges 1, 2 and 3 on the indictment 'with intent to defraud';

   cthe appellant's acts said to constitute the crime of attempting to defraud a creditor were done 'with intent to defraud'."

2. Counsel for the appellant submitted that, at best, the submission of the documents to which the charges relate would have resulted in RAMS granting loan approval and advising that, subject to certain requirements, it would be willing to enter into a credit contract.  He argued that it followed that the appellant's conduct in forging signatures and in submitting the loan application and accompanying documents was not accompanied by an intention to defraud.

3. He drew our attention to a printed paragraph, forming part of the application form, which read as follows:

   "[Each person signing this application] acknowledges that this form is not to be regarded as an offer or acceptance of credit under any legislation relating to the provision of credit.  The information provided in this form will not become part of any contract for credit which come into existence between any applicant and RAMS."

4. It is true that the document itself was not intended to have any contractual effect.  But it was open to the jury to conclude that the submission of the document, apparently signed by two applicants, amounted to a representation that both the appellant and her husband wanted to borrow money from RAMS.

5. Counsel for the appellant relied on evidence at the trial as to the steps that would or might need to be taken before the appellant could receive any money from the proceeds of a new loan.  Essentially, the evidence was as follows:

   ·     RAMS would make enquiries and assess the loan application.  The application could be rejected at that stage.

   ·     If it were not rejected, RAMS would give loan approval, and notify the customers of that.

   ·     RAMS would have to make certain pre-contractual disclosures, required by legislation, before a credit contract could be entered into.

   ·     Loan approval could be subject to the obtaining of a satisfactory valuation by RAMS.  If so, a valuer could be required to visit the property and provide a report.

   ·     RAMS might require the borrowers to obtain mortgage insurance.  If so, the insurer would require the borrowers to complete and sign documentation.

   ·     A credit contract would have to be entered into. At any stage prior to the making of a credit contract, RAMS could decide not to proceed with the proposed transaction. 

   ·     A discharge of the original mortgage would have to be arranged.  The outgoing mortgagee might require both mortgagors to sign documents for that purpose.

   ·     An identity check would have to be carried out as required by the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth). Each of the borrowers would have to pass a 100-point Austrac identity check.

   ·     A mortgage to RAMS would have to be prepared and signed by the borrowers.

   ·     A settlement would take place, at which the outgoing mortgagee would hand over the certificate of title and a discharge of its mortgage, and receive the amount required to pay out the mortgage.

6. Residual loan funds could be made available to a borrower only after all the above matters, or such of them as RAMS required, were attended to.  No money could have been obtained by the appellant without the submission of a number of documents signed or purportedly signed by her husband, including a credit contract, a new mortgage, possibly documentation required by the outgoing mortgagee, and possibly documentation required by an insurer.

7. If the appellant, without the knowledge or concurrence of her husband, had continued to take the steps necessary for the obtaining of loan funds from RAMS, forging further signatures when necessary, the result would have been a fraud upon her husband.  The property that he and she co-owned would have become the subject of a $565,000 mortgage in favour of RAMS.  His economic interests plainly would have been prejudiced or imperilled.  In our view it was open to the jury to infer that, when the appellant forged the signatures, and when she sent the documents bearing forged signatures to the mortgage broker, she intended, if possible, to see the loan application through to its logical conclusion, and to do all things necessary to obtain a $565,000 loan from RAMS, refinancing the house, and ending up with a cash surplus for herself. 

8. Counsel for the appellant referred to possibilities that she might have decided not to proceed with such a course of action, or might have decided at some point to acquaint her husband with RAMS' preparedness to lend and to invite him to join with her in refinancing their property.  It was open to the jury to reject those possibilities as fanciful.

9. The learned trial judge rejected the no case submission on the basis that it was open to the jury, in relation to each count, to be satisfied beyond reasonable doubt that the appellant had acted with intent to defraud, and charged the jury accordingly.  Having regard to the evidence of what the appellant did, and of what else she would or might have needed to do in order to effect a fraud, we consider that his Honour's conclusions as to this point were perfectly correct.  It was open to the jury to be satisfied beyond reasonable doubt that the appellant intended to go all the way in obtaining the proposed loan from RAMS, and that the submission of a loan application, accompanied by identity documents, was the first of a number of steps that she would have needed to take in order to get the intended result.  For these reasons, we concluded that ground 2 had to fail.

Ground 1 – Attempting to commit fraud on a creditor

1. Ground 1 reads as follows:

   "1   The learned trial judge erred in law by ruling that the acts of the appellant formed part of a series of events which if it were not interrupted would constitute the actual commission of the crime and thereby were not too remote to constitute an attempt to commit the crime of defrauding a creditor contrary to s296(1) of the Criminal Code."

2. The crime of fraud on a creditor is the subject of s 296(1) of the Criminal Code.  The relevant provisions in that subsection read as follows:

   "(1)   If any person —

   (a)in incurring any debt or liability has, with intent to defraud, obtained credit by a false pretence or by means of any other fraud;

   (b)…

   (c)…

   he shall be guilty of a crime.

   Charge:

   Fraud on a creditor."

3. In substance, the Crown case was that the appellant attempted to obtain credit from RAMS, with intent to defraud, by false pretences, namely by pretending that the signatures of her husband and Sgt Latham were genuine. 

4. By virtue of s 299 of the Code, any person who attempts to commit a crime is guilty of a crime.  To understand what does or does not constitute an attempt, one must have regard to s 2 of the Code.  That section provides as follows:

   "(1)  An attempt to commit a crime is an act or omission done or made with intent to commit that crime, and forming part of a series of events which if it were not interrupted would constitute the actual commission of the crime.

   (2)  The offence of attempting to commit a crime may be committed, although the offender voluntarily desists from the actual commission of the crime itself, and whether under the circumstances it was possible to commit such crime or not.

   (3)  The point at which such a series of events as aforesaid begins depends upon the circumstances of each particular case.

   (4)  Whether an act or omission is, or is not, too remote to constitute an attempt to commit a crime is a question of law."

5. Counsel for the appellant argued that her conduct in forging signatures and submitting papers bearing forged signatures on 18 January 2011 was, in the words of s 2(4), "too remote to constitute an attempt to commit a crime".

6. As we have said, a no case submission on that basis was rejected by the learned trial judge.  As a consequence, count 5 was left to the jury on the basis that, as a matter of law, the forging of the signatures and the submission of the loan application and accompanying documents were capable of forming part of a series of events which, if uninterrupted, would have constituted the commission of the crime of fraud on a creditor.  Counsel for the appellant submitted to us that his Honour erred in his ruling as to that point. 

7. In Nicholson v The Queen (1993) 14 Tas R 351, this Court held that, in order for an act to constitute an attempt, the act did not need to be one which, of itself, unequivocally showed that the commission of the crime charged was intended by the accused. That was an appeal against a conviction for attempted rape. There was evidence that the offender broke into the victim's home while drunk, went to a room where she was asleep in bed under a doona, positioned himself on top of her, with his face near hers, and began to remove her tracksuit trousers. His counsel argued that that conduct was equivocal, and that he might have intended something other than rape, such as an indecent assault, or looking at the victim's body. It was held that the equivocality test was not determinative, and that the offender's acts had passed the point of preparation, so that they were part of a series of acts which, if they had not been interrupted, would have resulted in intercourse whether the victim consented or not. In the light of that case, the critical question in this case was whether the appellant's acts, in forging signatures and sending documents to the mortgage broker on 18 January 2011, had passed the point of preparation, so that they were part of a series of acts which, if they had not been interrupted, would have resulted in her obtaining loan funds from RAMS.

8. Counsel for the appellant drew our attention to the various steps that would or might need to be taken between the submission of the loan application and accompanying documents and the obtaining of credit from RAMS upon the completion of the transaction.  It is true that a number of things remained to be done, but the submission of a loan application, purportedly signed by both husband and wife, but with some signatures forged, could well be regarded as a very significant step.

9. Counsel for the appellant relied on Director of Public Prosecutions v Stonehouse [1978] AC 55. Between July and September 1974 Mr Stonehouse took out five life insurance policies in his wife's name. On 20 November 1974, near Miami, he faked his death by drowning. He then went to Australia where he lived under a false name, without revealing to his wife that he was still alive. Some years later he was tried in England and found guilty on five counts of attempting to obtain property by deception. Each charge related to one of the life policies. The House of Lords held that the taking out of the policies – the only acts done in England – were merely preparatory acts. At 68, Lord Diplock said:

   "The constituent elements of the inchoate crime of an attempt are a physical act by the offender sufficiently proximate to the complete offence and an intention on the part of the offender to commit the complete offence.  Acts that are merely preparatory to the commission of the offence such as, in the instant case, the taking out of the insurance policies are not sufficiently proximate to constitute an attempt.  They do not indicate a fixed irrevocable intention to go on to commit the complete offence unless involuntarily prevented from doing so. As it was put in the locus classicus Reg v Eagleton (1855) Dears CC 515, 538:

   'The mere intention to commit a misdemeanour is not criminal. Some act is required, and we do not think that all acts towards committing a misdemeanour are indictable. Acts remotely leading towards the commission of the offence are not to be considered as attempts to commit it, but acts immediately connected with it are; …'

   In other words the offender must have crossed the Rubicon and burnt his boats."

10. In our view that case does not help the appellant.  Her making of preliminary telephone enquiries to the mortgage broker, any obtaining of information from websites, and even the downloading of RAMS forms from the internet (if that is what she did) would have to be regarded as acts of preparation.  But once she embarked upon a course of dishonest conduct, forging signatures and uttering documents bearing false signatures, in a way calculated to deceive the mortgage broker and RAMS as to the involvement of her husband in the transaction, we consider that, as Lord Diplock put it in Stonehouse, the appellant had crossed the Rubicon and burnt her boats.

1. For these reasons, we concluded that ground 1 must also fail.