Citation: Police v William Michael Cannon [2011] NSWLC 29
Court: Local Court of New South Wales
Date: 19 September 2011
Judge(s): Magistrate Tsavdaridis
Background
The accused was a finance broker charged with three counts of obtaining money by deception under s 178BA of the Crimes Act 1900 (NSW). The prosecution alleged that he dishonestly obtained the proceeds of three separate loans totalling $590,000 by submitting fraudulent mortgage applications and forged loan documents in the names of individuals who had not consented to those transactions.
The three transactions involved loan amounts of $400,000, $70,000 and $120,000 respectively. In each case, a lender's interest was purportedly secured over real property belonging to the named borrowers, mortgagors or guarantors, who gave evidence that they had no knowledge of the arrangements. Loan proceeds were deposited into the accused's account.
The matter proceeded as a defended hearing. The accused initially appeared unrepresented and sought an adjournment on the morning of the first hearing day, which was refused. He was later represented during the defence case, which was heard across two further dates after an adjournment was granted at the close of the prosecution case to allow defence witnesses to be called.
Legal Issues
- Whether the accused's conduct satisfied each element of the offence under s 178BA of the Crimes Act 1900, as it applied at the time of the alleged offences in 2009 (prior to its repeal in February 2010)
- Whether the accused acted dishonestly, including whether he held a genuine belief in a legal entitlement to the loan proceeds
- Whether a sufficient causal connection existed between any deception practised by the accused and the financial advantage obtained
- Whether, in the absence of expert handwriting evidence, forgery and associated motive could be established by inference from the available direct and circumstantial evidence
Decision
Magistrate Tsavdaridis applied s 178BA as it stood at the time of the alleged offences, noting that the section has since been repealed and replaced by s 192E of the Crimes Act 1900. The court carefully reviewed the elements of the offence, including the statutory definition of "deception" and the requirement of dishonesty, drawing on a substantial body of case law concerning both the objective and subjective aspects of dishonest conduct.
On the question of dishonesty, the court rejected the accused's case that he held a genuine belief in a legal entitlement to the loan proceeds. The Magistrate found that the accused's conduct in manipulating mortgage and lending processes to cause lenders to advance money they would not otherwise have lent was pervasive in its dishonest intent.
On causation, the court was satisfied beyond reasonable doubt that the deception was the effective cause of the lenders depositing the loan proceeds into the accused's account. The court acknowledged that the case rested partly on direct evidence and partly on circumstantial evidence, and that competing inferences were available. However, the inference of guilt was found to overcome all other available inferences to the point that no reasonable doubt remained.
In the absence of expert forensic evidence about the authenticity of signatures on the loan documents, the court reached its conclusions about forgery and associated motive by way of inference from the combination of direct and circumstantial evidence. The court noted reservations about the authenticity of the signatures but was ultimately satisfied on the totality of the evidence that all three offences were proven beyond reasonable doubt.
Orders Made
- The accused found guilty on all three sequences
- Matter adjourned to 28 October 2011 for sentence
- Bail continued
- Full Pre-Sentence Report ordered
- The accused directed to report to the Hurstville office of the Probation and Parole Service by 4:00 pm on 22 September 2011
Key Takeaways
- Under s 178BA of the Crimes Act 1900 (now replaced by s 192E), a prosecution must establish that deception was the effective cause of the financial advantage obtained, not merely incidental to it.
- Dishonesty under s 178BA required the court to assess whether the accused held a genuine belief in a legal entitlement to the money; the Local Court found no such genuine belief on the facts.
- Where expert evidence of forgery is not adduced, a finding of fraudulent document manipulation may still be reached by inference from the combination of direct and circumstantial evidence, provided the inference of guilt overcomes all competing inferences beyond reasonable doubt.
- The repeal of s 178BA by the Crimes Amendment (Fraud, Identity and Forgery Offences) Act 2009, which took effect on 22 February 2010, did not affect charges relating to conduct occurring before that date; the court applied the law as it stood at the time of the alleged offences.
- Procedurally, an application to vacate a specially fixed hearing date requires cogent and compelling reasons; late notice of such an application, without adequate explanation, will weigh against the applicant.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 178BA, 192E
- Crimes Amendment (Fraud, Identity and Forgery Offences) Act 2009 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Corporations Act 2001 (Cth)
- Interpretation Act 1987 (NSW)
Cases
- Balcombe v De Simoni (1972) 126 CLR 576
- Corporate Affairs Commission v Papoulias (1990) 20 NSWLR 503
- Cutter v R (1997) 143 ALR 498
- Flack v R [2011] NSWCCA 167
- Fleming v R (1998) 197 CLR 250
- Glenister v R [1980] 2 NSWLR 597
- Langham v R (1984) 12 A Crim R 391
- Parker v R (1963) 111 CLR 610
- Pereira v DPP (1988) 82 ALR 217
- Peters v R (1998) 192 CLR 493
- R v Adler [2002] NSWCCA 180
- R v Balnaves (2000) 117 A Crim R 85
- R v Feely [1973] 1 All ER 341
- R v Ghosh [1982] 2 All ER 689
- R v Licardy (Unreported, NSWCCA, 26 May 1995)
- R v Manunta (1990) 54 SASR 17
- R v McQueeney (1989) 39 A Crim R 56
- R v O'Connor (1980) 146 CLR 64
- R v Reynhoudt (1962) 107 CLR 381
- Re London and Globe Finance Corp Ltd [1903] 1 Ch 728