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Court of Criminal Appeal 2 July 2002

Regina v Haidar-Wardak

[2002] NSWCCA 35

Also reported as (2002) 132 A Crim R 1
Fraud & dishonesty

Citation: Regina v Haidar-Wardak [2002] NSWCCA 35
Court: New South Wales Court of Criminal Appeal
Date: 2 July 2002
Judge(s): Meagher JA; Wood CJ at CL; Bell J

Background

The appellant, an Afghan-born Australian citizen and disability pensioner, attended the Sydney head office of a major bank in June 2000 and presented documents purporting to be United States Federal Reserve Bonds and Notes with a combined face value of USD 3.2 billion. He sought the bank's issuance of safekeeping receipts acknowledging that it held the securities. A fraud detective who happened to be on the premises at the time was alerted and quickly determined that the documents were colour-printed digital images, not genuine securities.

The appellant was charged on indictment with attempting to obtain safekeeping receipts by false pretence, with intent to defraud, contrary to the applicable Crimes Act provisions. He was tried in the Sydney District Court before Holt ADCJ and a jury, which returned a verdict of guilty on 14 August 2001. He was sentenced to twelve months' imprisonment with a six-month non-parole period.

The appellant appealed his conviction to the Court of Criminal Appeal, arguing primarily that the trial judge should have directed a verdict of acquittal at the close of the Crown case. He also challenged the severity of the sentence.

  • Whether the trial judge erred in refusing to direct a verdict of acquittal at the close of the Crown case.
  • Whether the Crown improperly elicited and relied upon evidence from the detective about what the appellant might have intended to do with any safekeeping receipts once obtained.
  • Whether the matter was properly put to the jury, specifically whether the jury was correctly directed on the element of intent to defraud as it related to the property of the bank rather than a third party.
  • Whether, given the trial irregularity, leave should be granted under rule 4 of the Criminal Appeal Rules to allow a ground of appeal not raised below.
  • Whether a new trial should be ordered following the quashing of the conviction.

Decision

Bell J (with whom Meagher JA and Wood CJ at CL agreed) found that the trial miscarried in a fundamental way. The Crown had elicited evidence from Detective Gerondis concerning what the appellant might have intended to use the safekeeping receipts for after obtaining them. This evidence ought not to have been drawn out in the manner it was, and the Crown then built its case upon it.

The problem was that the charge required proof that the appellant intended to defraud the bank itself by dishonestly obtaining its property through the false pretence. Instead, the Crown's case, as ultimately put to the jury, invited a finding of fraudulent intent on the basis that the appellant planned to use the safekeeping receipts to perpetrate a fraud on some other, unspecified party. The trial judge did not correct this misdirection. As a result, the jury may have convicted on a legally misconceived basis.

Bell J granted leave under rule 4 of the Criminal Appeal Rules to permit this ground to be raised despite counsel's failure to seek a direction at trial, finding that the irregularity went to the root of the proceedings, consistent with the approach in R v Tripodina (1988) 35 A Crim R 183.

On the question of remedy, the Court declined to order a new trial. Bell J noted the highly unusual character of the case, the appellant's lack of any prior convictions for dishonesty, the fact that he had already served over two months of imprisonment, and that the charge itself related to property of little inherent value (the safekeeping receipts rather than any monetary sum). The Court found that the interests of justice, assessed in accordance with DPP (Nauru) v Fowler (1984) 154 CLR 627, did not favour a retrial.

Orders Made

  • Leave granted pursuant to rule 4 of the Criminal Appeal Rules.
  • Appeal allowed.
  • Conviction recorded in the District Court quashed.
  • Verdict of acquittal substituted.

Key Takeaways

  • A charge of obtaining by false pretence with intent to defraud requires the Crown to establish that the defendant intended to defraud the specific person or entity from whom property was sought, not merely that the defendant intended to use the thing obtained to defraud a third party.
  • Where the Crown elicits evidence and then frames its case on a legally misconceived basis, and the trial judge fails to correct that error in directions to the jury, the conviction may be quashed on the ground that the trial miscarried.
  • Leave to raise a ground of appeal not advanced below may be granted under rule 4 of the Criminal Appeal Rules where the irregularity goes to the root of the proceedings.
  • The Court of Criminal Appeal confirmed that ordering a new trial is not automatic following a quashed conviction: factors including the nature of the charge, time already served, the appellant's background, and the overall interests of justice all bear on whether a retrial should be ordered.
  • In declining to order a retrial, the Court applied DPP (Nauru) v Fowler (1984) 154 CLR 627, emphasising that the trial's failure arose from the Crown's own conduct in eliciting and relying upon evidence improperly.

Legislation and Cases Referenced

Legislation
- Crimes Act 1915 (Vic)
- Criminal Appeal Act 1912 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Criminal Appeal Rules, r 4

Cases
- DPP (Nauru) v Fowler (1984) 154 CLR 627
- R v O'Sullivan [1925] VLR 515
- R v Tripodina (1988) 35 A Crim R 183