Reported Decision : (2002) 132 A Crim R 1 New South Wales Court of Criminal Appeal CITATION : Regina v Haidar-Wardak [2002] NSWCCA 35 FILE NUMBER(S) : CCA 60708/01 HEARING DATE(S) : 20/2/02 JUDGMENT DATE : 2 July 2002 PARTIES : Abdullah Haidar-Wardak (Appellant) Regina (Respondent) JUDGMENT OF : Meagher JA at 1; Wood CJ at CL at 2; Bell J at 3 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/11/0163 LOWER COURT JUDICIAL Holt DCJ OFFICER : COUNSEL : G I O Rowling (Regina) G Jauncey (Appellant) SOLICITORS : S E O'Connor Jack Rigg (Appellant) Crimes Act 1915 (Vic) LEGISLATION CITED : Criminal Appeal Act 1912 Criminal Procedure Act 1986 DPP (Nauru) v Fowler (1984) 154 CLR 627 CASES CITED: R v O'Sullivan (1925) VLR 515 R v Tripodina (1988) 35 A Crim R 183 DECISION : Leave granted pursuant to r 4 of the Criminal Appeal Rules; Appeal allowed; Quash the conviction recorded in the District Court; Verdict of acquittal substituted IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL 60708/01 MEAGHER JA WOOD CJ at CL BELL J Tuesday 2 July 2002 REGINA v Abdullah HAIDAR-WARDAK Judgment 1 MEAGHER JA: I agree with Bell J. 2 WOOD CJ at CL: I have read in draft form the judgment of Bell J. I agree with the orders proposed, and with the reasons of her Honour. 2 BELL J: On 8 August 2001 the appellant was arraigned before Holt ADCJ in the Sydney District Court on an indictment charging him: "For that he on 9 June 2000 at Sydney in the State of New South Wales did falsely pretend to Mark Burridge an officer of Westpac Banking Corporation that certain documents presented to him and purporting to be US Federal Reserve Bonds and US Federal Reserve Notes to the value of $US 3,200,000,000 were genuine documents and were then of that value by means of which false pretence he attempted to obtain a number of safekeeping receipts with intent to defraud". The appellant pleaded not guilty and stood his trial. On 14 August 2001 the jury returned a verdict of guilty. On 11 October 2001 Holt ADCJ sentenced the appellant to a term of imprisonment for twelve months commencing on that day. A non-parole period of six months was specified. 3 By notice of appeal dated 22 October 2001 the appellant appeals against his conviction. He also seeks leave to appeal against the severity of the sentence imposed on him. 4 On 12 December 2001 the appellant was granted bail pending the determination of this appeal. 5 At the close of the Crown case, Mr Stanton, who then appeared on behalf of the appellant, applied to the trial judge that he direct a verdict of acquittal. The sole ground of appeal contended that his Honour erred in law in failing to accede to that application. Written submissions filed on the appellant's behalf were directed additionally to the questions of whether the verdict was unreasonable or could not be supported having regard to the evidence, and/or that there had been a miscarriage of justice having regard to the way the matter was left to the jury. 6 As at the date of the offence the appellant was a middle-aged disability pensioner living at Seven Hills. He was born in Afghanistan. He left Afghanistan following the Russian invasion in 1979. In 1983 he migrated to Australia and was ultimately granted Australian citizenship. 7 On the afternoon of 9 June 2000 the appellant spoke with Michael Hard and Mark Burridge, employees of the Westpac Banking Corporation at the Bank's head office located at 60 Martin Place. He had previously made arrangements by telephone to speak with the Bank concerning the safekeeping of a quantity of United States Government Securities. During the course of the meeting on 9 June the appellant produced a number of documents purporting to be United States Federal Reserve Bonds and United States Federal Reserve Notes with a total face value of $US3.2 billion. 8 The appellant was asked what he wished the bank to do with the securities. The appellant said that he would like the bank to issue a letter confirming that it was holding the treasury notes and bonds in safekeeping. To this end the appellant produced a document, which was styled "Format of Safekeeping Receipt". That document was in these terms: " FORMAT OF SAFEKEEPING RECEIPT ON BANK LETTERHEAD FULL ADDRESS SWUFT CODE: ( ) SAFEKEPING RECEIPT NO: ( ) DATE OF ISSUE: June 9, 2000 SAFEKEEPING RECEIPT NO: ……………… NAME OF ISSUER: ……………………… BENEFICIARY: UNITED LENDING SERVICES PTY LTD A.C.N. 089 647 192 OF 32 Aurelia St Toongabbie NSW 2146 Sydney Australia. We (bank full name) with the Seal and Signatures appearing below, Hereby Agree to Hold on Deposit in our Safekeeping, The Hereinafter Original Federal Reserves Treasury Notes No … … … … … … … … Series 1934 face value 100 Million United State dollar (plus 33 coupons attached). We undertake that the Physical Deposit of the Federal Reserve Treasury notes , which has been Deposited to our care for the benefit of the Beneficiary, United Lending Services PTY LTD A.C.N. 089 647 192, represented by Abdullah Haidar-Wardak, the said Safekeeping Receipt has been Issued against the above Federal Reserve Treasury Note . It is our clear and firm resolve to Protect the Asset, Being Entrusted to our Care and Confirm that Absolutely no one outside of the Beneficiary will have the right or ability to remove the said above-mentioned Asset. Removal, Transfer, Trade or Export of the above Asset, which is Free of Lien and any other Encumbrances, Clean and Cleared, Non-Criminal and Drawable from the Beneficiary, Depositor Bank can only be achieved by the Presentation and Surrender of this Safekeeping Receipt to the Bank by the Beneficiary or their Signatories. Signatory Bank Seal Signatory Bank officer Bank Officer Name: Name: Position: Position: Phone: Phone: Fax: Fax:" 9 Mr Burridge left the room taking the format of the safekeeping receipt and one of the documents, which purported to be a United States Federal Reserve Bond. He showed these documents to Detective Gerondis who was at the bank's premises in connection with another investigation. 10 Mr Burridge returned to the conference room accompanied by Detective Gerondis and another officer. Detective Gerondis introduced himself to the appellant telling him that he was from the CBD Fraud Unit. In the course of a short conversation the appellant told Det Gerondis that the notes and bonds all belonged to him. He invited Det Gerondis to sit down and he offered to explain everything to him. Det Gerondis cautioned the appellant. He then asked him why he had sought to obtain the issue of a letter in the format of the safekeeping receipt from the bank. The appellant responded "sit down, you don't understand, United States will cease to exist if you ruin this deal." Detective Gerondis informed the appellant that he would like him to accompany him to the police station. The appellant responded, "thirty five billion U.S. dollars is at stake here, you can't take me". Detective Gerondis arrested the appellant. To this the appellant observed, "you have jeopardised the free world, you don't know what you are doing". 11 The appellant was taken to the City Central Police Station and interviewed. 12 Detective Gerondis ascertained that the documents purporting to be notes and bonds were colour printed digital images. The treasury bonds each had a face value of $US100,000,000 and the treasury notes had a face value $US500,000,000. These latter securities purported to have been issued by the United States Treasury in 1934. They were coupon securities. All of the coupons remained attached to the notes. The wording of the coupons was somewhat odd. 13 Both the notes and bonds were soaked in a substance that appeared to be linseed oil. The appellant said he did not know what the solution was, but that it had been placed on the notes "by the Americans". He advised Detective Gerondis to wash his hands after touching the notes since the solution was poison. 14 In the course of an interview with Detective Gerondis the appellant described the notes and bonds as being the property of the United States Government. They had been given to him by a Mr Agapay who was a resident of the Philippines. The appellant claimed to be the trustee of the securities. 15 The appellant had travelled between the Philippines and Australia on a number of occasions prior to June 2000. In addition to the documents purporting to be United States Federal Reserve Notes and Bonds the appellant was questioned about a number of other documents, which he had taken to the Bank. These included a digital photograph of a United States Federal Reserve steel box. A letter asserted that the total contents of various boxes held by the appellant contained in excess of one and a half trillion US dollars. 16 The appellant told Detective Gerondis that he had first taken these securities to the Seven Hills branch of the Westpac Bank. There he had spoken with the manager and the staff. He told them that he wished to leave certain documents in safekeeping while he travelled to Saudi Arabia. It would seem that the Seven Hills branch referred the appellant's request to the Westpac Private Bank in Martin Place. 17 The appellant told Detective Gerondis that when he entered Australia he had declared that he was carrying $US37.3 billion. Incoming passenger cards bearing the date 3 June 2000 produced by the Department of Immigration and Multicultural Affairs showed that the appellant had declared 137.56 billion (Notes and Bonds) on his return to Australia. 18 The appellant volunteered during his interview with Detective Gerondis that the remaining bonds and notes were at his home. 19 The appellant was not, in terms, asked why he had sought to obtain the safekeeping receipt from the bank. In answer to one question he said; "like these have been entrusted to me, I want to give it, like I've signed for this, for the beneficiaries, that's in my custody. I just want a safekeeping receipt that the Bank is holding these documents"(A 62). The appellant told Detective Gerondis that he had prepared the format of the safekeeping receipt himself. He went on to say, "it's a very simple thing, like I'm putting deposit to you, I need a receipt out of it"(A 65). 20 Detective Gerondis asked whether the appellant had a history of psychiatric treatment. He said that he suffered from depression and had been prescribed Valium. 21 During a period when the interview was suspended (while Detective Morris went to locate an independent officer to attend to the formal questioning at the conclusion of it) the appellant continued speaking with Detective Gerondis. It is sufficient to observe that the appellant's statements had, at times, an incoherent quality to them. 22 An examination of the appellant's laptop computer revealed that images of the bonds and notes were contained in files both on the hard-drive and on a disc. The format for the safekeeping receipt was also located on a file on the hard-drive of the computer. 23 Kyle Foley, Service Director at the Bureau of Public Debt, a Federal Agency of the United States Department of Treasury, gave evidence that the documents purporting to be United States Federal Reserve Bonds and Notes were not genuine. 24 At the conclusion of the Crown case a number of submissions were advanced in support of a contention that the Crown had failed to establish a prime facie case. In written submissions Mr Stanton contended that there was no evidence of any intention to defraud: "There is no nexus between the false pretence pleaded and the intent to defraud. Whilst the Crown relies on s 70 of the Criminal Procedure Act as a procedural "safeguard" that does not overcome the requirement that there must be evidence of an intent. Clearly that evidence may be direct or circumstantial. The Crown could not rely upon Gerondis's evidence given in re-examination that "he suspected" what the accused intended to do. A jury cannot speculate. There is no evidence of "intent to defraud". There are no circumstances from which this jury could infer the necessary intent." 25 The reference to the evidence of Detective Gerondis' suspicions refers to answers given by him in re-examination: "Q. You were asked questions by Mr Stanton about the safekeeping receipt and questions that you asked the accused about what use that might be made. You were asked questions to the effect and you said you suspected what he was going to do? A. Yes. Q. What did you suspect? A. I suspected that he was either going to use the receipt as proof of the wealth of United Lending Services to raise money from other people to invest in that company, or alternatively to use that document to secure a loan from other financial institution showing that …. His Honour: Q. I missed that, there was a bit of diversion down the back there. Would you say that again? A. Yes, I suspected that he was either going to use the receipt to raise funds of behalf of United Lending Services, and thereby proving to potential investors that the company was worth however many billion dollars the receipt had on it, or alternatively secure a loan from other financial institutions showing that the security for this loan is the deposit of so many billions at Westpac Private Bank." (T42). 26 The trial judge rejected the submission that there was no evidence from which the jury might infer an intent to defraud. 27 The indictment charged the appellant pursuant to s 344A of the Crimes Act ("the Act") with an attempt to commit an offence contrary to s 179 of the Act. It is to be noted that the appellant is not charged with having attempted by a false pretence to obtain property. The charge is framed that he did falsely pretend that certain documents purporting to be United States Federal Reserve Bonds and United States Federal Reserve Notes were genuine documents by means of which false pretence he attempted to obtain a number of safekeeping receipts with intent to defraud. No question arose as to whether a count framed in these terms is known to law. For present purposes I will assume that it is. 28 No objection was taken to the questions asked of Detective Gerondis, which I have set out at paragraph 24 above. The questions should not have been asked. The evidence of Detective Gerondis' suspicions appears to have led the Crown to invite the jury to find that the element of intent to defraud was to be found by drawing the inference that in the event the appellant obtained the safekeeping receipts, he would have used them to perpetrate a fraud on some other financial institution. 29 During argument on the application for a directed verdict the Crown Prosecutor submitted: "if he had succeeded in his attempt, the accused would have walked away with twelve receipts which he could have used, individually or together, to obtain funds. And the evidence before the jury of that aspect comes from the re-examination of Detective Inspector Gerondis and it is something that is before the jury and properly before the jury, with respect your Honour. … That is evidence properly before the jury, your Honour, it is a suspicion of a very experienced investigator, as my learned friend pointed out to the jury, and that is an inference which can be drawn and upon which the Crown would rely as evidence supporting that part of the ingredient of the charge of intent to defraud (T(10-08-01) at 99)". 30 It is apparent that in due course the Crown Prosecutor advanced submissions of this character in the course of his closing address to the jury. 31 In written submissions in this Court the Crown stated: "The intended fraud upon which the Crown relied was either the use of the receipt to raise money on behalf of United Lending Service Pty Ltd, a company in which the respondent had an interest (see transcript of the ERISP, Ex "G", answer to question 48), using the certificate to show that it was worth the amount of money shown on the receipts, or to secure a loan from another lending institution using them to show that the security for the loan was the bonds and notes deposited with the Bank (transcript page 3)." 32 The essence of the offence with which the appellant was charged was that by means of a representation known by him to be false he had attempted dishonestly to obtain property of the Westpac Banking Corporation (i.e. the letter). The intent to defraud, which the Crown was required to prove, was that the false representation was made dishonestly in order to obtain the property. 33 At common law it was not a crime to deceive another into parting with his or her property. In England the statutory offence shortly described as "false pretences" was introduced by 30 Geo 2 c 24 in 1757: "All persons who knowingly and designedly, by false pretence or pretences, shall obtain from any person or persons, money, goods, wares or merchanizes, with intent to cheat or defraud any person or persons of the same ….shall be deemed offenders" (emphasis added). 34 In Balcombe v De Simoni (1971-1972) 126 CLR 576 the High Court considered the offence of false pretences as then provided by s 409(1) of the Criminal Code (WA). Gibbs J (in a judgment with which Menzies J agreed) observed at p 595: "Considering the matter on principle I am of opinion that it is not necessary that an accused person should have intended to use the property for purposes different from those for which the victim of his deceit understood he would use it before he can be held to have had an intent to defraud. What is essential is that he should have intended to obtain the property by means of a deception. To say this is not to fail to give proper weight to the words 'with intent to defraud'. If those words did not appear in the section it would be enough if the accused made a statement which was false to his knowledge and if the person to whom the statement was made was induced to part with property by reason of such false pretence, and it would be immaterial whether the statement was intended to have that effect. What the inclusion of the words 'with intent to defraud' makes necessary is that the accused should have made the false pretence with the intention of inducing another person to part with property. Therefore, if a beggar obtains money by pretending to be blind, and with the intention that the person to whom the pretence is made should be induced by that pretence to give him alms, the offence is committed notwithstanding that the money is used exactly as the person who gave it intended that it should be used, for the relief of the beggar. Similarly, if a man, by pretending to hold a certain position, or to possess certain assets, intentionally induces another to lend him money which he would not otherwise have lent, the former has an intent to defraud, notwithstanding that he intends to use the money for the very purpose for which he says he wants to borrow it". 35 The Crown sought to contend that Balcombe v De Simoni was to be distinguished since the provision of the Code was in terms which differ to those of s 179 of the Act. At the time s 409(1) of the Criminal Code (WA) provided: "Any person who by any false pretence or by any wilfully false promise or partly by a false pretence and partly by a wilfully false promise, and with intent to defraud, obtains from any other person anything capable of being stolen, or induces any other person to deliver to any person anything capable of being stolen, is guilty of a crime and is liable to imprisonment with hard labour for three years. It is immaterial that the thing is obtained or its delivery is induced through the medium of a contract induced by the false pretence or the wilfully false promise or partly by a false pretence and partly by a wilfully false promise." 36 Gibbs J in Balcombe v De Simoni drew on English authorities dealing with the offence of "false pretences". His Honour approved the decision of the Victorian Court of Criminal Appeal in R v O'Sullivan (1925) VLR 515 37 The Court in O'Sullivan (Irvine CJ, Cussen J and Weigall AJ ) observed at 518: "It is an essential element of the offence that that the goods should have been obtained by false pretences with intent to defraud. The intent to defraud includes in every case an intention on the part of the accused that the owner of the goods shall be by such false statements induced to do what he otherwise would not do – namely, part with the goods in question." The failure of the trial judge in O'Sullivan to direct the jury adequately on the separate element of intent to defraud resulted in the appeal being allowed and a new trial ordered. 38 The Victorian provision considered in R v O'Sullivan, s 181 of the Crimes Act 1915 (Vic), was in these terms: "Whosoever by any false pretence obtains from any other person any chattel, money or valuable security with intent to defraud shall be guilty of a misdemeanour." 39 I see no relevant distinction between the terms of s 181 of the Crimes Act 1915 (Vic) and the terms of s 179 of the Act. 40 I consider that the ingredient of proof of an intent to defraud in a charge brought pursuant to s 179 of the Act requires proof that the accused intended to induce another to part with property dishonestly by means of the false pretence or wilfully false promise (or partly by the false pretence and partly by the wilfully false promise). 41 The property the subject of this charge was a letter on the letterhead of the Bank bearing the Bank's seal. As such, it was property worth a relatively trifling sum. Section 20(1) of the Criminal Procedure Act 1986 ("the CPA") provides that an offence brought under s 179 of the Act is to be dealt with in accordance with Table 1 of Schedule 1 of the CPA where the value of the property exceeds five thousand dollars and pursuant to Table 2 of Schedule 1 of the CPA where the value of the property does not exceed five thousand dollars. An indictable offence listed in Table 2 is to be dealt with summarily by a Local Court unless the prosecuting authority elects to have the offence dealt with on indictment. 42 During the course of submissions on the hearing of the appeal the Court inquired how it was that the present offence came to be prosecuted on indictment. The Crown Prosecutor was not in a position to assist us with the history of the proceedings, but submitted that it would be wrong to characterise the letter that the appellant had sought to obtain as being property of nominal value only. In the Crown's submission such a letter might bear a value of many thousands of dollars. This seems to me to illustrate a conceptual difficulty that attended the conduct of the proceedings at trial. In the event that the appellant succeeded in obtaining one or more safekeeping receipts it is conceivable that he may have made use of them to commit a fraud upon a financial institution or individual. However this was not the offence with which he was charged. 43 Assuming for present purposes that the offence as framed was one known to law, I am of the view that there was evidence upon which a properly directed jury might find the ingredients of the offence to have been established. 44 The trial judge gave the jury an unexceptional direction concerning the meaning of intent to defraud in the course of his directions as to the elements of the offence. These directions were not linked to the evidence. It is apparent that the Crown Prosecutor invited the jury to consider that the element of intent to defraud was to be found in the evidence of Det Gerondis' suspicion that the appellant planned to use the safekeeping receipt to perpetrate a fraud on another financial institution. His Honour dealt with this aspect of the case at the conclusion of the summing up in the course of summarising the submissions of defence counsel. He observed: "He said if you come to the third element of intention to defraud, which, he submitted, you would not, he said that you would not convict the accused on the suspicions of Inspector Gerondis as to what he might have done with the documents. He submitted there is no evidence of intention to defraud" (SU 28). His Honour was not asked to, and did not, direct the jury that the evidence of Det Gerondis' suspicions concerning what the appellant might have done with the safekeeping receipts was not relevant to proof of the ingredient of intent to defraud. The matter was left upon the basis that the jury might have recourse to this evidence in order to find that the appellant had the requisite intent. 45 Trial counsel having failed in his application that the jury be directed to acquit because there was no evidence that the appellant had an intent to defraud, did not seek any re-direction at the conclusion of the summing-up on the question of proof of this element. 46 The sole ground of appeal related to the determination of the application for a directed verdict of acquittal. The written submissions filed on behalf of the appellant raised matters additional to that ground. These included that it had not been open to the Crown to rely upon the evidence of Detective Gerondis' suspicion as to what the appellant might have intended to do had he obtained the safekeeping receipts. The appellant requires leave to rely on this as a ground of appeal given the failure of his counsel to seek a direction at the trial pursuant to r 4 of the Criminal Appeal Rules. I consider that leave should be granted in this case since I am of the view that the irregularity in this trial goes to the root of the proceedings; R v Tripodina (1988) 35 A Crim R 183. 47 I am persuaded that the trial miscarried by reason of the reliance placed by the Crown upon the evidence of Detective Gerondis, which ought not to have been elicited. Thereafter the Crown put its case upon a footing, which was misconceived. This was not corrected by the trial judge. The matter was left upon the basis that the jury might find the appellant possessed the intent to defraud not by reason that he sought dishonestly to obtain the property of the Westpac Banking Corporation by means of a false pretence but rather upon satisfaction that he intended to use the safekeeping receipt in order to commit a fraud upon another. 48 I would propose that the appeal be allowed and the conviction quashed. I do not consider that it is appropriate in the circumstances of this case to order a new trial pursuant to s 8 of the Criminal Appeal Act 1912. This is a most unusual case. The appellant, who it is to be noted, has no convictions for offences of dishonesty, has served two months and one day of the sentence of imprisonment imposed on him following his conviction. While there may be suspicion that the appellant intended by this bizarre scheme to perpetrate a fraud of significant proportions, it is to be kept in mind that the charge brought by the Crown concerns property of little value. The trial miscarried by reason of the approach taken by the Crown both in eliciting evidence from Detective Gerondis and in the way the matter was then put to the jury. In these circumstances I do not consider that the interests of justice favour an order for a new trial; DPP (Nauru) v Fowler (1984) 154 CLR 627. 49 The Orders that I propose are as follows: 1. Leave granted pursuant to r 4 of the Criminal Appeal Rules; 2. Appeal allowed; 3. Quash the conviction recorded in the District Court; 4. Substitute a verdict of acquittal. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.