Carnaby v R

1. [1]

   McCALLUM JA: I agree with Adamson J for the reasons her Honour has given.

2. [2]

   DAVIES J: I agree with Adamson J for the reasons her Honour provides.

3. [3]

   ADAMSON J: Raymond Carnaby (the applicant) seeks leave to appeal against his convictions ordered following a trial by jury before O’Rourke SC DCJ in the District Court at Sydney on 24 October 2019.

4. [4]

   On 19 September 2019, the applicant was charged on indictment with a total of 22 counts. He pleaded not guilty to each count. All but counts 7, 9, 11 and 20 charged that the applicant dishonestly obtained a financial advantage for himself or another person contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW) (the fraud counts). Counts 7, 9, 11 and 20 charged that the applicant recruited someone to assist in carrying out a criminal activity contrary to s 351A(1) of the Crimes Act (the recruitment counts).

5. [5]

   The Crown case, which is set out in more detail below, was, in substance, that the applicant was involved in applying for finance for himself and third parties to purchase luxury motor vehicles and that such applications were made on the basis of false documents which were submitted to obtain finance. The nature and details of the transactions and that they were fraudulent were the subject of agreed facts tendered pursuant to s 191 of the Evidence Act 1995 (NSW). The principal issue was the applicant’s involvement in the transactions and whether he was dishonest.

6. [6]

   The charges and the verdicts are summarised in the table below.

7. [7]

   The facts underlying each of the fraud counts were substantially similar. They involved the submission of false documentation to finance companies for the purchase of luxury motor vehicles between early 2013 and early 2016. In each case, a third party or a company of which the third party was a director lodged an application for finance, which was supported by false documents. The total value of the loans was $2.56 million. The finance companies lost a total of $2.29 million. The Crown case was that it was the applicant who had caused the individual third party to apply for finance for the purchase of the vehicles and that the applicant provided the false financial information which was then submitted to the finance companies in support of the loan application. In relation to counts 1 to 7; 12 to 14 and 15 to 16, the Crown relied on a joint criminal enterprise between the applicant and the individual who had made the loan application.

8. [8]

   In the case of the transactions in respect of which a recruitment offence was also charged, the Crown case was that the applicant had recruited a person who knew that the transaction was fraudulent. In the other cases, the third party was unwittingly involved and suffered financial consequences.

The grounds of appeal

1. [9]

   The applicant seeks leave to appeal against his convictions on the following grounds:

   1. (1)

      On the basis of the grounds of appeal, the trial miscarried.

   2. (2)

      The trial judge erred by not vacating the trial, not granting a reasonable adjournment and thereby forcing the appellant to represent himself.

   3. (3)

      The trial judge “[c]ondoned and shielded s 128 [of the Evidence Act] certificate perjurers.”

   4. (4)

      The trial judge erred by not directing a verdict of not guilty on count 6.

   5. (5)

      The Crown withheld evidence and failed to produce material witnesses.

   6. (6)

      The trial judge erred by admitting Exhibits M, N and X into evidence.

   7. (7)

      The trial judge erred by admitting bank statements into evidence.

   8. (8)

      The trial judge erred by not allowing the defence to lead evidence of Mahdine Obeid’s conviction for grievous bodily harm.

   9. (9)

      The verdicts of conviction on counts 1, 2, 3, 4, 5 and 7 were “unsafe, unreasonable and inconsistent.”

   10. (10)

       The verdicts of conviction on counts 8 and 9 were “unsafe, unreasonable and inconsistent.”

   11. (11)

       The verdicts of conviction on counts 10 and 11 were “unsafe, unreasonable and inconsistent.”

   12. (12)

       The verdicts of conviction on counts 12, 13 and 14 were “unsafe, unreasonable and inconsistent.”

   13. (13)

       The verdicts of conviction on counts 15 and 16 were “unsafe, unreasonable and inconsistent.”

   14. (14)

       The verdicts of conviction on counts 17, 18, 19 and 20 were unsafe, unreasonable and inconsistent.”

   15. (15)

       “Justice was rushed and tampered with.”

   16. (16)

       “The jury was deliberating for [a] very short unreasonable period.”

The trial

1. [10]

   The breadth of the grounds of appeal makes it necessary to summarise the progress of the trial at the outset before turning to the individual grounds. Because of ground 2, a distinction will be drawn between the evidence which was given while the applicant was represented and evidence adduced when he was representing himself. This will result in evidence of some counts being referred to before the withdrawal of representation as well as afterwards.

2. [11]

   Until the morning of the seventh day of the trial, the applicant was represented by Mr Green of counsel, and Mr Candelori, solicitor. It is convenient to summarise the evidence given during the period of the trial when the applicant had representation.

3. [12]

   As referred to above, the Crown tendered a statement of agreed facts pursuant to s 191 of the Evidence Act which set out the facts relating to the finance applications, their approval, the repayments made and what happened to the vehicles which had been purchased. The applicant did not dispute that the documentation submitted in support of the finance applications was false, but denied that he was involved in the submission of the false documents or aware of their falsity. The applicant challenged the credibility and reliability of the individual witnesses involved in the finance applications.

4. [13]

   The Crown called Mr Obeid, who, together with the applicant, applied for loans for Precious Metals and Gems Pty Ltd (Precious Metals), which were the subject of counts 1 to 7. Mr Obeid gave evidence that he had pleaded guilty to offences arising out of the conduct which was the subject of counts 1 to 6 and been sentenced in the Local Court to an aggregate sentence of 2 years’ imprisonment and a non-parole period of 14 months (which was reduced on appeal to 12 months). He received a discount of 15% for his plea of guilty and a 25% discount for past and future assistance.

5. [14]

   He gave evidence that the applicant approached him and asked him whether he was interested in buying a business to import precious gems operated by Precious Metals. The applicant proposed that Mr Obeid would be the director and financier of the business and that the applicant would take care of paperwork and make contact with potential customers. Mr Obeid said that, ultimately, they agreed that Mr Obeid would provide the funds for the business and the applicant would do the work and make contacts and that they would divide any profits equally. In June 2013, Mr Obeid was appointed director of Precious Metals.

6. [15]

   Mr Obeid gave evidence that in June 2013 the applicant suggested that they buy luxury cars to promote Precious Metals’ image. They agreed to buy two 2013 model Audi Q7 motor vehicles. Mr Obeid said that he accompanied the applicant to the Audi dealership and that, on that occasion, the applicant had made statements to those present about the profitability of Precious Metals and how “exclusive it is”. According to Mr Obeid, the applicant prepared all the financial information submitted to the finance company, which Mr Obeid signed as he was the director. At that time, the company had no business and no staff other than the applicant and Mr Obeid. To Mr Obeid’s knowledge, this remained the case.

7. [16]

   The agreed facts included that applications for finance were submitted to Volkswagen Financial Services Pty Limited; the applications were approved; a contract was entered into for each vehicle (counts 1 and 2), of which Mr Obeid was the guarantor; the total amount of credit obtained was $124,589 for each contract (see the table above); and payments totalling $25,361.44 were made. The vehicles were repossessed and sold at auction.

8. [17]

   At the applicant’s suggestion, Mr Obeid went to see Nizar Irani, a tax accountant in Rockdale, after the first two cars had been acquired. In July 2013, the applicant contacted a real estate agent with a view to renting premises from which Precious Metals would conduct its business. Subsequently, they decided to acquire two more vehicles from the same Audi Centre, a black Audi A8 (count 4) and a charcoal-coloured Audi Q7 (count 3). On or shortly prior to 30 August 2013, an application for further finance was submitted to Volkswagen Financial Services Pty Limited for the purchase of these two vehicles. According to Mr Obeid, the applicant told him that these vehicles were more prestigious, and would reflect more highly on the (non-existent) business than the ones they had already purchased.

9. [18]

   In September 2013 the company entered into a 12-month lease of a warehouse in Unanderra near Wollongong, from which the business would be conducted. The total rent was paid in advance by Mr Obeid.

10. [19]

    The agreed facts recorded that a fifth vehicle, an Audi A1, was purchased. According to Mr Obeid, the applicant proceeded to acquire this vehicle for his daughter without consulting Mr Obeid (count 5). The applicant submitted all the paperwork and prepared everything for the acquisition of this vehicle and Mr Obeid “pretty much went to the Audi Centre City and I just signed off on it.” Mr Obeid had seen the applicant’s daughter driving the Audi A1.

11. [20]

    Mr Obeid said that when the Audi A1 was acquired, he was using the charcoal-coloured Audi Q7, the applicant was using the Audi A8, and the first two Audi Q7 vehicles were in the warehouse at Unanderra or being lent to the applicant’s friends and contacts.

12. [21]

    The final vehicle acquired was an Audi SQ5 which was custom made in Germany. Once again, the applicant prepared the documents which were submitted in support of the application and Mr Obeid signed the application.

13. [22]

    In about mid-2014, there was a falling out between Mr Obeid and the applicant as a result of which Mr Obeid stopped making payments for the five vehicles. The applicant threatened him. Mr Obeid eventually closed the warehouse down and the vehicles were repossessed.

14. [23]

    Before Mr Obeid was cross-examined, her Honour granted a certificate to him pursuant to s 128 of the Evidence Act on the basis that Mr Green had indicated that he proposed to ask him questions, the answers to which might incriminate him in the commission of criminal offences. Mr Green did not oppose the grant of such a certificate. In the course of his cross-examination of Mr Obeid, Mr Green put that he was lying in respect of some aspects of his evidence, which he denied.

15. [24]

    In 2016, Mohamad Younes was working as a furniture removalist through a company, MKY Enterprises Pty Ltd (MKY), that had been operating since 2002. Having met the applicant at a party, he went to the applicant’s home in Condell Park with a friend and observed a black Audi A8 motor vehicle. The two became friends. The applicant suggested that they go into business with each other. Mr Younes objected on the grounds that he did not have any money. The applicant obtained a photocopy of Mr Younes’ driver’s licence, with his consent.

16. [25]

    The applicant arranged for Mr Younes to test drive an Audi R8 motor vehicle. The applicant told Mr Younes that he would provide the paperwork and obtain approval for a loan for a car for Mr Younes. Mr Younes said that he could not get a loan in his name because his income as declared on his tax return was too low. Ultimately, the applicant told Mr Younes that the loan would have to be in Mr Younes’ name and explained that the men who were involved were dangerous. Mr Younes went along with the plan because he thought that there was no prospect that the loan would be approved.

17. [26]

    On 24 April 2014, Mr Younes and the applicant went to the Audi dealership at Zetland, where Mr Younes signed some documents which were already there when he arrived, including a loan application, a guarantee of the loan and an authority to deduct payments from his bank account. He did not read the documents which he signed as he was unable to read them. He did, however, appreciate that he had signed a guarantee and knew what he was signing, although he did not realise that the documents which had been provided in support of the loan application were false. Shortly afterwards, the applicant told Mr Younes that his loan application for an Audi R8 had been approved. The application was made in the name of MKY. Mr Younes never saw the Audi R8 which was acquired as a result of the approval of the loan.

18. [27]

    In May 2014, the first loan payment was deducted from Mr Younes’ bank account. Another was deducted the following month. Although Mr Younes tried to contact the applicant, he did not return his calls. Mr Younes received infringement notices which imposed fines in relation to the Audi A8. Mr Younes communicated by text with the applicant and said that he would go to the police and report that the car was stolen.

19. [28]

    Mr Younes was shown the loan documentation which had been seized from the applicant’s premises. He confirmed that the amounts in MKY’s tax returns were false and that he had never seen the documents before. When asked about the declaration by a tax agent on the tax return, he confirmed that he did not know the tax agent and had never heard of her.

20. [29]

    At some time in 2014, the applicant contacted Mr Irani and arranged to introduce Mohamad Bannout, whom he identified as a client. After the applicant left, Mr Bannout explained that he ran a personnel company, Consec Personnel Pty Ltd (Consec). Mr Bannout provided Mr Irani with documents and asked him to prepare tax returns and financial statements which Mr Irani subsequently provided in draft both in hard copy form and electronically to Mr Bannout and the applicant.

21. [30]

    Nizar Irani was an accountant who practised in Rockdale who had known the applicant for about a decade. The applicant referred Mr Bannout and Mr Obeid to him. Mr Irani saw Mr Obeid in about August 2013 and subsequently for the purpose of preparing his personal tax returns and the returns for Precious Metals. On the basis of the material which Mr Obeid had provided to him, Precious Metals appeared to be extremely profitable. Mr Irani regarded the figures as inconsistent with the circumstance that he had not been provided with any Business Activity Statements. He prepared draft documents for Mr Obeid based on the material which he had been given and sought further information and documents from Mr Obeid.

22. [31]

    Senior Constable Hakan Gulsoy, who was the officer in charge of the investigation, gave evidence in chief throughout the trial and was cross-examined by the applicant shortly before the close of the Crown case. He gave evidence of the search conducted pursuant to a warrant on 21 April 2016 of the applicant’s home and the items, including documents which were seized as exhibits. Three folders of documents, including loan documentation lodged with various finance companies (relevant to the counts on the indictment) were tendered.

23. [32]

    Ghada Nouh, who has two children, separated from her husband in 2013. In 2015 she trained as a beauty therapist and finished the course in May 2016. In August or September 2015, she bought an airline ticket to travel to the United States of America (USA) with friends. She wanted a credit card as she needed extra money for the trip, but was then on Centrelink benefits and had previously been bankrupt. She was introduced to the applicant, who was identified as someone who could help her obtain a credit card. The introduction occurred in a café in Bankstown. Mr Bannout, whom she had not met before, was also present. She provided her telephone number, and allowed photographs of her Medicare card and her driver’s licence to be taken. The applicant arranged for Ms Nouh to attend a bank the following day to obtain a credit card.

24. [33]

    The applicant collected Ms Nouh the following morning to take her to the bank. They had breakfast at together. During breakfast, the applicant suggested that she work for him in his excavation business. He told her that she would be a director of the company and meet wealthy people. Later, he told her that he had checked and that she was no longer bankrupt but that she needed a car and a good credit rating and that he would help her obtain finance of about $350,000 for a car. Ms Nouh was sceptical since she did not think that this was possible given that she was on Centrelink payments.

25. [34]

    Subsequently, the applicant took Ms Nouh to Autoline Cars on Parramatta Road. Before any transaction was concluded, Ms Nouh had to leave to pick up her children. When she returned, she signed some papers which were on the desk at the dealership when she arrived. She did not read the documents before signing them.

26. [35]

    Ms Nouh was away in the USA from 4 to 24 September 2015. She attempted to contact the applicant while she was away because she was running short of funds. On her return to Australia she learned that she was required to return to the dealership to re-sign documents as the licence she had originally provided had expired and she needed to produce her current licence.

27. [36]

    Some time after she signed the documents, Ms Nouh received $5,000 in cash from Mr Bannout, who told her, “This is from Raymond [the applicant].” At that time, Ms Nouh was happy since she did not realise that she had signed false documents and believed that the applicant would employ her in his excavation business. She used the cash to pay bills and to buy presents for her children.

28. [37]

    Subsequently, the applicant arranged for Ms Nouh to sign documents which would have the effect of making her a director of a company, Global Wealth Strategies Pty Ltd (GWS).

29. [38]

    It was an agreed fact that Ms Nouh and GWS agreed to borrow money for a 2014 model Jeep from the Australian and New Zealand Banking Group trading as Esanda (Esanda), and a 2015 model Porsche and a 2013 model Land Rover from BMW Australia Finance Limited trading as Alphera Financial Services. It was agreed that the documents submitted in support of the loans were false. These documents included payslips which indicated, falsely, that Ms Nouh was employed by a company called Excavation and Building Solutions Pty Ltd; documents suggesting that she had an email address which she had never had; documents which recorded that GWS had a business address at Chullora, where she had never been; and a PAYG statement which recorded that she had an annual salary from Excavation and Building Solutions Pty Ltd of $127,000.

30. [39]

    Ms Nouh did not ever see any of the three cars. She received notices of fines imposed in relation to the driving of the Jeep. She contacted the applicant to ask him for the name of the driver as she was losing points from her own licence. He provided her with a name and licence which she sent to the State Debt Recovery Office, which notified her that the details were false. She lost so many points that she approached the applicant for help as she needed her driver’s licence to take her children to school.

31. [40]

    Ms Nouh met the applicant on further occasions. On one such occasion, he asked her to delete his phone numbers and those associated with Mr Bannout from her phone and checked that she had done so. He also asked her to go overseas.

32. [41]

    Before Ms Nouh was cross-examined, the applicant dismissed his counsel and solicitor in circumstances set out below.

33. [42]

    The applicant was represented by counsel, Mr Green, and a solicitor until the morning of the seventh day of the trial, 26 September 2019, when he withdrew his instructions from his counsel. Mr Green, who informed her Honour that he was appearing at that stage as amicus curiae, asked if the matter could stand over until the following morning. The Crown did not oppose an adjournment of that length. Her Honour asked the jury to return and told them that a matter had arisen which meant that the trial could not proceed that day. In the absence of the jury, her Honour informed the applicant that Mr Green was doing a “very good job” for him.

34. [43]

    When the matter resumed on Friday 27 September 2019, Mr Candelori (who was still instructed by the applicant) sought an adjournment until the following Monday 30 September 2019. The Crown indicated that it did not object to an adjournment on the basis that the trial would continue on the following Monday. Mr Candelori sought a recommendation that transcript be provided so that, if new counsel was briefed, he or she could read the transcript of the trial to date. The Crown indicated that it would arrange for transcript to be provided. When the trial judge asked Mr Candelori what he wanted her to tell the jury, he asked her to “keep it neutral at this stage”. The trial judge informed the jury that the issue that arose the previous day was “ongoing”.

35. [44]

    On Monday 30 September 2019, Mr Candelori informed the Court that the applicant had been unable to brief new counsel at short notice. He applied to vacate the trial. Her Honour asked Mr Candelori what he proposed to do if the application were refused, to which he responded that his instructions were to withdraw. Her Honour also asked if Mr Green could be approached to come back into the matter, to which Mr Candelori responded that the applicant did not want to reinstate Mr Green. The Crown opposed the vacation of the trial. Mr Candelori listed the counsel who had been approached since the applicant had withdrawn instructions from Mr Green. He also confirmed that Mr Green was willing to return to the trial but that the applicant did not want Mr Green to appear for him. Mr Candelori informed the court that it was the applicant’s choice to dismiss his counsel. When her Honour said that Mr Green “seemed to be doing a very able job”, Mr Candelori responded, “But I can’t take it any further than that.”

36. [45]

    At the conclusion of oral argument on 30 September 2019, her Honour delivered a judgment ex tempore, refusing the application to vacate the trial. Her Honour set out the events summarised above. She noted that the issues in the trial were not “overly complicated” as they related to whether the applicant was criminally involved, but not whether the transactions were fraudulent. Her Honour noted that Mr Obeid and Mr Younes had already given evidence and been cross-examined by Mr Green and that only Ms Nouh remained to be cross-examined. Her Honour found that, although English is not the applicant’s first language, he had been able to instruct counsel throughout the trial and participate in a lengthy recorded interview with police. Her Honour noted that the applicant’s health issues compromised his ability to stand for long periods and proposed that he be permitted to sit. Her Honour said, in conclusion, that a “great deal of cost” had been expended in running the trial over two weeks and that she did not consider it to be either unreasonable or unfair to refuse the application. Her Honour’s refusal to adjourn the trial is the subject of ground 2.

37. [46]

    The Crown tendered a statement of Stuart Colley, who worked at the Audi Centre, Sydney, and signed documents relating to the loans the subject of counts 1, 2 and 10. Mr Colley identified his signature on various documents and described his usual practice. He did not have any independent recollection of the transactions.

38. [47]

    The Crown also tendered a statement of Benjamin Woods, who also worked at the Audi Centre, Sydney, and signed documents relating to the loans the subject of counts 3 and 4. He identified his signature on various documents and described his usual practice. He did not have any independent recollection of the transactions.

39. [48]

    Senior Constable Gulsoy gave evidence that the following items were found in the course of the search of the applicant’s home which were germane to counts 1-7: a copy of Mr Obeid’s Australian passport and NSW driver’s licence; images of five Audi motor vehicles inside a warehouse; a Business Activity Statement for Precious Metals dated June 2013; and a rental application in the applicant’s name for premises at Chipping Norton, signed on 8 June 2014, in which his occupation was described as Financial Controller employed by Precious Metals with an income of $145,600. The rental application listed the Audi vehicle (which is the subject of count 4), as his vehicle.

40. [49]

    The applicant sought leave for Mr Obeid to be recalled so that he could cross-examine him further. There was a discussion about the topics which the applicant was permitted to canvas in the further cross-examination. On 9 October 2019 (day 14 of the trial), Mr Obeid was recalled and cross-examined by the applicant. Among the topics covered in cross-examination were the different names which Mr Obeid used (which included being called “Mick” instead of Mahdine or Mahidine or Mahedine). Her Honour rejected some of the questions asked of Mr Obeid by the applicant on the basis of form but the cross-examination otherwise progressed in an unremarkable way.

41. [50]

    The agreed facts in relation to counts 8 and 9 were that Afaf Yassin applied for finance from Capital Finance Australia Limited, now St George Finance Limited (Capital Finance) in respect of a Mercedes Benz E63. The application was approved and a contract was entered into on 31 March 2014. False documents relating to Impact Quality Flooring Pty Ltd were submitted in support of the application. In reliance on these false documents Capital Finance advanced the funds for the acquisition of the motor vehicle.

42. [51]

    Between 2002 and 2016, David Wilson worked in the collections department of Capital Finance. As such, he was responsible for contacting defaulting customers. He located a phone number associated with the loans from Capital Finance and called the number. A person who identified himself as “Raymond Carmody” advised Mr Wilson that he was assisting a customer with a motor vehicle and asked if the loan was in arrears. Mr Wilson refused to discuss the details of the loan with “Mr Carmody” in the absence of an authority from Ms Yassin. Within a week of this conversation, Mr Wilson received a letter of authority signed by Ms Yassin authorising Mr Wilson to speak to the applicant. The applicant told Mr Wilson that he was helping Ms Yassin’s husband and that the car was with “Nick”, who was a “boyfriend” (of Ms Yassin) who lived in Victoria. Mr Wilson asked the applicant whether Ms Yassin was employed by Impact Quality Flooring Pty Ltd. The applicant confirmed that she was.

43. [52]

    In a subsequent conversation, the applicant told Mr Wilson that the car had been reregistered in Victoria in the name of “Michael Rivkin” and that he would endeavour to ascertain the location of the vehicle. Subsequently, the applicant sent a text message to Mr Wilson with the (alleged) new registration number of the vehicle.

44. [53]

    One of the documents used in support of the loan application by Ms Yassin was a 2012 company tax return for Impact Quality Flooring Pty Ltd, which recorded Rimon Philipos as the tax agent. Senior Constable Gulsoy obtained a statement from Mr Philipos (which was tendered) in which he said that he had seen Ms Yassin on 17 July 2013, at which time he had applied for an Australian Business Number (ABN) for her and prepared profit and loss statements for Centrelink purposes. He had not otherwise done any work for her and had never heard of Impact Quality Flooring Pty Ltd. He was shown the tax returns in which he was identified as a tax agent and confirmed that the documents did not accord with the way he prepares such documents and that the phone number indicated was not his.

45. [54]

    Senior Constable Gulsoy also took statements from Tanja Atelj dated 2 May 2016 and 23 January 2017, which were tendered in the Crown case and marked Exhibits M and N respectively (the subject of ground 6, addressed below). In the statements Ms Atelj said that she worked as a Group Business Manager with the City Motors Group. She caused Ms Yassin’s application for a Mercedes Benz to be processed and sent to Capital Finance. Once the loan was approved, the vehicle was collected by the applicant. Ms Yassin had emailed City Motors Group with a signed authority which authorised the applicant to collect the vehicle on her behalf. The applicant provided his driver’s licence to City Motors Group to establish his identity.

46. [55]

    Senior Constable Gulsoy also took a statement from Gemma Murray dated 7 March 2017, which was tendered in the Crown case and marked Exhibit X (the subject of ground 6, which is addressed below). Ms Murray was working at Mercedes Benz as a Business Manager. She was working from premises in Wollongong. Her statement included the following:

47. [56]

    Senior Constable Gulsoy identified the Mercedes Benz which was the subject of count 8 and established that it was being used by Ahmed Zaoud, who was living in Guildford and who was well known to police. He learned that the registration of the vehicle was changed to a Victorian address but the registered owner of the vehicle did not exist at the registered address. Ms Yassin reported the vehicle as stolen. It has not been recovered.

48. [57]

    In the course of his evidence in chief Senior Constable Gulsoy read out his statement concerning the Mercedes Benz, which was the subject of count 8:

49. [58]

    The Crown also tendered a statutory declaration made by Ms Yassin on 7 August 2014 in which she stated:

50. [59]

    Text messages between the applicant and Ms Yassin (which were extracted from her phone) were also tendered by the Crown and marked Exhibit AF. They were sent between September 2014 and October 2014. Ms Yassin repeatedly asked him to call her because she received fines and toll notices for the Mercedes which was not in her possession and had also been contacted by Capital Finance. The final two text messages were as follows:

51. [60]

    Senior Constable Gulsoy gave evidence that the following items were found in the course of the search of the applicant’s home which were germane to counts 8 and 9: Victorian toll notices between 7 May 2014 and 30 May 2014 in relation to the Mercedes E63 in the name of Afaf Yassin; an image of a letter addressed to Ms Yassin from CityLink Melbourne Limited in relation to unpaid toll notices for the Mercedes E63; and a dealer certificate of the Mercedes E63 in the name of Ms Yassin.

52. [61]

    Senior Constable Gulsoy gave evidence that Ms Yassin was charged with offences relating to her involvement in the scheme and declined to provide an induced statement. Attempts were subsequently made to locate her but without success. The trial judge explained to the jury that the purpose of the evidence of attempts to locate Ms Yassin was to inform the jury of her unavailability to give evidence.

53. [62]

    Senior Constable Gulsoy took a statement from Ms Salameh (who had been identified as MKY’s tax agent in its 2012 tax return), which was tendered by the Crown. Ms Salameh confirmed that she had never been a tax agent for MKY, Mr Younes or the applicant.

54. [63]

    Senior Constable Gulsoy gave evidence that images of the applicant with the Audi R8 (the subject of count 10) were found in the course of the search of the applicant’s home.

55. [64]

    In 2014, Phillip Gruppelaar worked as a finance broker in a business known as Harley Finance which operated on Parramatta Road, Concord and also in Kogarah. Next door to Harley Finance’s Parramatta Road premises, Nick Agar of Sports Auto Group, ran a motor vehicle dealership.

56. [65]

    On 24 October 2014, the applicant and Mr Bannout went to Mr Gruppelaar’s premises on Parramatta Road for the purpose of Mr Bannout signing documents for finance to be provided by ANZ for the purchase of a Ducati motorcycle. The applicant had earlier provided to Mr Gruppelaar the documents in support of the loan application at a time when Mr Bannout was not present. These documents included an annual report for Consec, Consec’s tax return for 2014 and Mr Bannout’s tax return for 2014. These documents identified Mr Irani as the accountant.

57. [66]

    In cross-examination, the applicant put to Mr Gruppelaar that it was Mr Bannout, and not the applicant, who had provided the documentation in support of the loan applications. Mr Gruppelaar refuted this proposition.

58. [67]

    Ian Walker was the Group Finance Manager at Fraser Motorcycle Group. He was present when the Ducati motorcycle was delivered. At the time of delivery, Mr Bannout attended, as did an older man whose name was Raymond (the applicant) and two other men. Mr Walker confirmed in cross-examination that Mr Bannout did not have a motorcycle licence but that one of the other three men had such a licence.

59. [68]

    In about August 2014, Robert Bulgin worked as a locum finance manager at Suttons Group. On about 10 September 2014, Mr Bannout attended the Concord Land Rover Dealership on Parramatta Road, Concord and allowed his driver’s licence to be photocopied for the purpose of a loan application with respect to a Jaguar motor vehicle (count 12). The photocopy of the licence was then added to the documentation in support of the loan application by Consec.

60. [69]

    Martin Nixon worked as a business manager at Fraser Motorcycles. He recalled a deal involving Mr Bannout and a Ducati motorcycle, which was an expensive motorcycle, with extensive accessories. Mr Nixon recalled that four or five men would come to the showroom to discuss the purchase but that there was one man, an older man who was always dressed in business attire, who was always controlling the deal. Mr Nixon identified the applicant as that man.

61. [70]

    Mr Bannout was called by the Crown at the request of the applicant, who cross-examined him. Mr Bannout confirmed that he met the applicant a decade before. He told the applicant that he needed an accountant and the applicant referred him to one in Rockdale, who provided him with some financial documents. In September 2014, Mr Bannout obtained a Jaguar XF motor vehicle and in October 2014 he obtained a Mercedes Benz C63 and Ducati motorcycle. He provided the financial documents (which he had received from the accountant) to “Nick [Ajar]” in support of the application. He said that the applicant had not provided him with documents but had provided him with advice. He confirmed that the applicant had had nothing to do with the documents and had simply helped him as a friend.

62. [71]

    At the end of the applicant’s cross-examination of Mr Bannout, the Crown sought, and was granted, leave to cross-examine him. Mr Bannout confirmed that he had never seen any of the documents that were lodged on his behalf or on behalf of Consec. He could not say whether the applicant had prepared the documents because he had never seen them. Although Mr Bannout could not recall what his income was in 2013-2014, he confirmed that he had never earned anything approximating $453,000, which was the amount in the 2014 tax return submitted in support of the loan applications. He confirmed that he took some documents to the accountant in Rockdale and said that he had obtained the documents from “Nick” rather than the applicant.

63. [72]

    It was an agreed fact that the supporting documentation was false in a number of important respects. Three loans (the subject of counts 12, 13 and 14) for a Jaguar motor vehicle, a Ducati motorcycle and a Mercedes Benz C63 AMG were approved on the basis of the false documentation.

64. [73]

    Senior Constable Gulsoy gave evidence that the following items were found in the course of the search of the applicant’s home which were germane to count 12: an image of the Jaguar XF parked in the driveway of the applicant’s residence at Chipping Norton; an image of Compulsory Third Party insurance for the Jaguar XF dated 22 October 2015 with insurer QBE; an image of the identification panel of the Jaguar XF; Capital Finance loan documents relating to the Jaguar XF; a dealer certificate in the name of Consec with registered address in Bankstown dated 12 September 2014 for the Jaguar XF; a customer copy of the loan application relating to the Jaguar XF; insurance documents relating to the Jaguar XF; a customer copy of the dealership documents for the Jaguar XF; the original receipt and EFTPOS slip of the deposit payment paid on collection of the Jaguar XF; and insurance documents relating to the Jaguar XF.

65. [74]

    Senior Constable Gulsoy gave evidence that the following items were found in the course of the search of the applicant’s home which were germane to count 13: ANZ loan documents and a repayments schedule for the Ducati motorcycle for monthly repayments of $1,130.75; a registration notice for the Ducati motorcycle in the name of Mr Bannout, dated 27 October 2014; ANZ loan documents for the Ducati motorcycle; and a customer copy of the dealership contract for the Ducati motorcycle.

66. [75]

    Senior Constable Gulsoy gave evidence that an ANZ loan document relating to the black Mercedes Benz C63 AMG monthly repayments of $2,246.00 was found in the course of the search of the applicant’s home. The document was germane to count 14.

67. [76]

    Senior Constable Gulsoy gave evidence that the following items were found in the course of the search of the applicant’s home which were germane to counts 13-14 generally: Consec printouts; a depreciation worksheet for Consec for 2014 relating to excavators; payslips in the name of Mr Bannout; and a tax document marked in red pen.

68. [77]

    As with the other transactions, the agreed facts established the details of the transactions the subject of the counts.

69. [78]

    The agreed facts included that in January 2015 an application for finance was submitted to Esanda for the acquisition of a Jeep Grand Cherokee. On 13 January 2015, an application for finance was submitted to BMW Australia Finance Limited trading as Alphera Financial Services for the purchase of a 2009 Bentley Coupe. The documents submitted in support of these applications, which included company tax returns, were false. In reliance on the false documentation, the application was approved, the transaction documents were executed, the finance advanced and the motor vehicles provided. The borrower was El Sayed Transport Pty Ltd (El Sayed Transport) and the guarantor was its principal, Hassan El Sayed.

70. [79]

    The uncontroverted statement of Steven O’Neill, who worked full-time at the Chrysler Jeep showroom, was that Mr El Sayed had collected the Jeep Cherokee on 14 January 2014. The statement was tendered by the Crown, admitted into evidence and marked Exhibit S. It was the subject of a question from the jury (referred to below).

71. [80]

    On 31 August 2016, the police obtained a statement of Bachar Jilany who had been named in El Sayed Transport’s company tax return as its tax agent. He confirmed that he had never prepared any paperwork for El Sayed Transport or Mr El Sayed. This statement was tendered in the Crown case.

72. [81]

    Mr Ajar had no recollection of the transaction involving the Mercedes C63. However, he confirmed that it was likely that Mr El Sayed attended his dealership and arranged to purchase the Mercedes C63. He said that, as the sale documents were signed when the vehicle was collected, it was likely that Mr Bannout collected the vehicle.

73. [82]

    Mr Bannout said that he and Mr El Sayed used to be good friends. He introduced Mr El Sayed to “Nick” [Ajar] and the applicant.

74. [83]

    Senior Constable Gulsoy gave evidence that the following items were found in the course of the search of the applicant’s home which were germane to counts 15-16: Mr El Sayed’s 2014 tax return; 2014 financial statements for El Sayed Transport; 2014 Company tax return for El Sayed Transport; a depreciation worksheet for El Sayed Transport excavators; a photo of the applicant sitting in the driver’s seat of the black Bentley; a photo of the Bentley parked in the driveway of the applicant’s residence with his wife standing near the front passenger door; Mr El Sayed’s identification documents used in the loan applications; a copy of a dealer certificate for the Bentley under the name of DBN Holdings; a blank Harley Finance document signed by Mr El Sayed; an image of Mr El Sayed’s driver’s licence; Esanda contract and insurance documents relating to the Jeep (count 16); Alphera insurance documents of the Bentley (count 15); 2014 company tax returns for El Sayed Transport; a penalty notice for the Jeep (count 16); Part A of a Roads and Maritime Services disposal slip of the Jeep (count 16) with sale date of 23 June 2015; St George statement of an account in the name of the applicant’s wife, Ilham Carnaby, and an account in the name of Mr El Sayed; and copies of Mr El Sayed’s identification documents.

75. [84]

    Senior Constable Gulsoy gave evidence that Mr El Sayed was charged with offences relating to his involvement in the scheme and did not give a statement to police. He gave evidence that attempts were subsequently made to locate him but without success. The trial judge explained to the jury that the purpose of the evidence of attempts to locate Mr El Sayed was to inform the jury of his unavailability to give evidence.

76. [85]

    As the applicant was self-represented, he cross-examined Ms Nouh. Ms Nouh accepted that she had signed documentation to become a director of GWS because the applicant had asked her to. Ms Nouh said that she agreed to become a director because she was silly and naïve. She said that she was not a director of GWS when she signed the transaction documents at the dealership but that the documents appointing her as a director had been back-dated. Ms Nouh accepted that money had been deposited into her account which had been debited for payment of the motor vehicles. She also agreed that she had been given a total of $15,000 by the applicant.

77. [86]

    Ms Nouh confirmed that she was told the following before being interviewed by police:

78. [87]

    The Crown tendered a statement of Manmohit Pahul Singh Rangpuri dated 24 November 2016 in which he said that in 2013 or 2014 he purchased GWS from Adam Abdo and sold it to Ms Nouh through Mr Agar’s “business broker”, whose name was “Raymond” (the applicant), whom he had never met or spoken to on the phone.

79. [88]

    Jamie Candy gave evidence that, in late 2015, his wallet was stolen from his work truck while he was away from his truck for about five minutes. It contained his Medicare card, a Commonwealth Bank card and his driver’s licence. When Mr Candy called the bank to report the theft, the bank cancelled the card as it was being used. About a fortnight later, he received an infringement notice for driving through a red light and a parking fine from the State Debt Recovery Office. The notices correctly recorded his address and referred to (as he subsequently learned) a black Jeep (the subject of count 17) which he did not own and had not driven. A month or two later, he received a letter from Esanda declining a loan for $98,000 for which he had not applied.

80. [89]

    Mr Candy reported the matter to the State Debt Recovery Office which recommended that he report the matter to the Australian Federal Police. He was subsequently referred to Senior Constable Gulsoy and interviewed in July 2016. He confirmed that he had never met either the applicant or Ms Nouh. He was shown photographs of his licence, Medicare card and Commonwealth Bank card and identified them as copies of items which had been in his wallet when it was stolen.

81. [90]

    Mr Bannout drove the Porsche which Ms Nouh had acquired as well as the Land Rover. He said that she was with him when he went to collect the cars, but he drove them. He said he paid her for using the cars but could not remember the amount. He could not recall whether, when he gave her the money he said, “This is from Raymond.” He remembered going to the applicant about a traffic infringement notice regarding a car that belonged to Ms Nouh but he could not remember what transpired.

82. [91]

    The documents which were found at the applicant’s home when the search warrant was executed by police on 21 April 2016 included Ms Nouh’s identification documents and documents relating to GWS as well as the following: a Vodafone account in the name of GWS; an ANZ Loan contract in relation to the Jeep (count 17); a penalty notice from the State Debt Recovery Office for the Jeep (count 17); ASIC company records for GWS; overdue ASIC payments for GWS; toll notices for travel on the M5 for the Jeep (count 17); Ms Nouh’s NSW driver’s licence and Medicare card; a business card in the name of GWS; and a Vodafone account for 20 mobile numbers.

83. [92]

    The agreed facts in relation to counts 21 and 22 recorded that on 28 August 2014 applications for credit were submitted to Nissan Financial Services Australia Pty Limited for the purchase of two 2014 model Dodge Journey motor vehicles; the applications were approved; a contract was entered into for each vehicle, of which Olivia Badal was the guarantor; and the total amount of credit obtained was $37,500 for each contract (see the table above). It was an agreed fact that the financial information contained in documents supporting the credit applications was false.

84. [93]

    Senior Constable Gulsoy gave evidence that the following items were found in the course of the search of the applicant’s home which were germane to counts 21 and 22: numerous tax returns and annual report documents relating to Bookmarks Pty Limited; scanned copies of identification in the name of Olivia Badal and Romel Badal; ASIC documents relating to Bookmarks Pty Limited; salary details about Bookmarks Pty Limited’s employees; and bank account details relating to Bookmarks Pty Limited.

85. [94]

    Senior Constable Gulsoy gave evidence of the search conducted pursuant to a warrant on 21 April 2016 of the applicant’s home and the items, including documents which were seized as exhibits. Three folders of documents, including loan documentation lodged with various finance companies (relevant to the counts on the indictment) were tendered.

86. [95]

    He said that the items found in the search included documentation relating to traffic infringements of vehicles which were the subject of the indictment. Two of the names on the documents were Wornruthi Singkha and Jamie Candy. Various car keys were also located: a key for a Jaguar A8, another Jaguar key and a key to a Jeep.

87. [96]

    On 5 April 2016, Senior Constable Gulsoy conducted surveillance of the applicant at his home at Chipping Norton. He observed the applicant driving a blue Jaguar sedan with a number plate which had replaced the plate of the vehicle in count 12. Further surveillance was conducted on 12 April 2016. The same blue Jaguar sedan was seen parked in the driveway. A white Dodge vehicle (count 21) was parked in front of the house.

88. [97]

    Senior Constable Gulsoy gave evidence as to the fate of each of the motor vehicles which were the subject of charges. It is not necessary to summarise this evidence for present purposes as the offence was complete at an earlier stage (when each transaction was entered into).

89. [98]

    The applicant cross-examined Senior Constable Gulsoy extensively about the investigation of the offences which led to the charges. The cross-examination commenced on the afternoon of 14 October 2019, continued all day on 15 October 2019 and concluded on the morning of 16 October 2019. After briefly re-examining Senior Constable Gulsoy, the Crown closed its case.

90. [99]

    The applicant was interviewed by police on 15 September 2016. His Electronically Recorded Interview with Suspected Person (ERISP) was played to the jury and the recording and transcript marked as exhibits.

91. [100]

    The applicant explained in the ERISP that he was an unpaid investigative journalist and had several phone numbers because he used a different number for each investigation.

92. [101]

    While the applicant was in Wollongong, he had three laptop computers, one of which had been used by Mr Obeid. He told police that Mr Obeid had set up Precious Metals and was its director and that he (the applicant) was employed by another company, Flamark, of which Mr Obeid was also the director. The applicant worked as its marketing and financial controller. According to the applicant, Mr Obeid gave him an Audi A8 (in lieu of any financial payment), which he drove for about a year. Precious Metals had two Audi Q7 3l vehicles, an Audi Q7 4.2l vehicle and an Audi A1 vehicle. Mr Obeid acquired an Audi SQ5 for personal use, a boat and two Ducati motorcycles. Although the applicant accompanied Mr Obeid to dealerships to help him negotiate a price, he had no knowledge of what documentation was supplied. The applicant referred Mr Obeid to Mr Irani. At that time, Precious Metals’ books and records were kept in the warehouse at Unanderra and the applicant had access to them. He agreed that he may have brought some of the records to his house.

93. [102]

    When asked about Impact Quality Flooring Pty Ltd, the applicant told police that he wanted to help a woman called “Afaf” (Ms Yassin), who was separated from her husband, get a car. As she wanted to buy a Mercedes, he took her to the Mercedes dealership in Wollongong. He played no role in filling in the documentation in support of the loan application. He may have collected the vehicle with her permission. He recalled that she had contacted him regarding fines imposed with respect to the motor vehicle and he had advised her that she should go to the police and report the car as being stolen.

94. [103]

    The applicant said that he remembered the Audi which was acquired by MKY, which was a company that “[did] transportation or something like that.” The applicant told police that the owner of the company (Mr Younes) asked the applicant to go with him to the dealership so that the applicant could get a good discount for him as Precious Metals had purchased five or six cars from them. The applicant believed that the Audi R8 had been involved in an accident involving Hassan Hamzy and that Mr Younes was “scared”. He explained that Hassan Hamzy was the brother of Bassam Hamzy, whom he described as “the patriarch of the family” and associated with the Brothers for Life (a notorious Outlaw Motorcycle Gang). When police asked him whether he was “friends with these people”, he responded, “[a]bsolutely.”

95. [104]

    The police asked him about various phone numbers and names in which the numbers were registered. He identified one such number as being his and said that he had used the name “Michael Jones” for that account. He said he used different names for his work as sometimes his life was under threat. He was asked about texts which Mr Younes had sent to him asking for the car back, to which the applicant responded that Mr Younes’ English was not good.

96. [105]

    The applicant admitted that he knew Consec as a company which Mr Bannout was operating. Although he said that he did not have any involvement with Consec getting motor vehicle loans, he admitted that he did take Mr Bannout to Mr Ajar’s dealership as well as to Fraser Motorcycles in relation to the purchase of a Ducati motorcycle. The applicant denied that any of these vehicles had ended up at his house, in his garage or in his driveway.

97. [106]

    He explained the Consec business records which had been found at his house (when the search warrant was executed) by saying that he was providing advice to Consec and he kept the company records that Mr Bannout brought to him. He denied sending any financial documentation to finance companies or dealerships on behalf of Mr Bannout.

98. [107]

    The applicant told police that Mr El Sayed was a friend of his. He denied doing any work for El Sayed Transport and also denied that he had anything to do with the paperwork for the acquisition of the Bentley motor vehicle. He said that he drove a Bentley which was a car on loan from Mr Ajar. He told police that he had a habit of scanning documents which he received and keeping them on his computer. He said that he may have received some documents to do with El Sayed Transport and scanned them for future reference.

99. [108]

    The applicant told police that he understood that Ms Nouh needed a company which had records and put her in touch with “Nick [Ajar] at Concord” who arranged for the transfer to her of GWS. He helped her because he liked to help people and understood that she wanted a future for herself away from her ex-husband who was “one of the bad boys”. He agreed that he attended Mr Ajar’s car dealership with her but said that she found the car herself and prepared the application herself. He explained texts which she had sent to him by saying that Ms Nouh had asked him to help her with penalty notices. Although he did not do any work for GWS, he did set up a foreign account and various telephone accounts for the company. He said that he did not know how many cars GWS had but maintained that he had never been in any of them. He said that he had seen someone whom he knew to be called Mohamad driving a Porsche but denied that he had anything to do with its acquisition. Although he initially said that he did not know Mohamad’s last name, later in the interview the applicant admitted that he knew Mohamad’s last name to be Bannout.

100. [109]

     The applicant admitted that a specified telephone number was one that he sometimes used. He was asked why it would be registered under the name of GWS, he said that it was pre-paid.

101. [110]

     When police asked the applicant about the print-out of Mr Candy’s driver’s licence and Medicare card that was seized when his home was searched, he said that it was Mr Bannout’s “to name as the driver and to give to [Ms Nouh].” When asked to explain what he meant by this, the applicant changed the version and said that it had been provided to him for the purposes of obtaining a loan from the “National Bank”. The applicant said that Mr Candy’s photo was sent to him on his phone.

102. [111]

     The police also asked the applicant why he had a printout of an international driver’s licence of Ms Nouh. He suggested that Mr Bannout might have sent it to him and that Ms Nouh might have been driving a car which Mr Bannout owned and needed the information for the purposes of an infringement notice. When asked why he would be privy to this information, the applicant told police that Ms Nouh may have lent Mr Bannout her Porsche and received an infringement notice which she wanted to be dealt with by Mr Bannout and she may have involved the applicant because Mr Bannout may have been in Lebanon and she may have been unable to get in touch with him without the applicant’s assistance. The applicant admitted to police that this was “mere speculation”.

103. [112]

     The police raised with the applicant that Mr Candy had been nominated as the driver on one of the occasions covered by the infringement notices. The applicant responded that if Mr Candy was nominated (by Mr Bannout) “that means that was sent to [Ms Nouh].”

104. [113]

     The applicant told police that he was involved in car loans to Bookmarks Pty Ltd for the acquisition of a Dodge RT and that the transaction was overseen by Romel Badal. The applicant admitted that he had attended dealerships with Olivia Badal, who was Mr Badal’s wife. The applicant said that he was not involved in the preparation of any of the financial documentation. Mr Badal used his garage as an office after they left Unanderra.

105. [114]

     At the close of the Crown case on 16 October 2019, the applicant applied for a directed verdict with respect to (in the following order) counts 21 and 22; counts 8 and 9; and counts 15-17. On the following morning, 17 October 2019, her Honour raised count 6 with the Crown, although it had not been included in the applicant’s no case submission. Ultimately, her Honour was persuaded by the Crown that there was a case to answer in respect of count 6 but she confirmed that she would highlight aspects of Mr Obeid’s evidence which were unsatisfactory in respect of that count.

106. [115]

     In a separate judgment delivered on 17 October 2019, her Honour directed verdicts of acquittal on counts 21 and 22 only.

107. [116]

     The applicant indicated that he intended to give evidence in his defence. Before the jury was brought back in, her Honour said that she intended to allow the Crown to make a closing address, limited to outlining the Crown case on the specific counts on the indictment, “due to the amount of evidence that is in the trial, the days we have been here, and to ensure that the jury understand what the Crown case is.”

108. [117]

     The applicant gave brief evidence in chief on 17 October 2019 and was cross-examined on 17 October 2019 from shortly before lunch until the morning of 18 October 2019 before the short adjournment. He closed his case before the morning adjournment.

109. [118]

     Before the Crown commenced its address, the trial judge explained to the jury what would follow. Her Honour said:

110. [119]

     The Crown commenced its address on 18 October 2019, after the morning adjournment, by saying the following:

111. [120]

     The Court adjourned at lunchtime on Friday 18 October 2019 and resumed on Monday 21 October 2019. The Crown continued its address on 21 October 2019 which it concluded prior to the morning tea adjournment on that day. The Crown in this Court fairly estimated that the Crown address had taken about two and a half hours. The applicant made no complaint in the trial that the Crown had exceeded the limitations imposed by the trial judge.

112. [121]

     The applicant commenced his closing address after the morning tea adjournment on 21 October 2019 and concluded immediately prior to the luncheon adjournment on 22 October 2019. Her Honour commenced the summing up at 2pm on 22 October 2019. The summing up concluded at 11.26am on 23 October 2019, at which time the jury retired to consider its verdict.

113. [122]

     The jury was brought back to Court at 2.12pm on 23 October 2019 to permit her Honour to correct a matter concerning tendency and coincidence. This matter was corrected and the jury was sent out again at 2.14pm. Her Honour brought the jury back to Court at 3.52pm to invite them to leave if they wished. Her Honour invited them to resume their deliberations between 9am and 10am the following morning.

114. [123]

     On Thursday 24 October 2019, the jury sent a note which said as follows:

115. [124]

     The question was discussed in the absence of the jury. The applicant told her Honour that he did not understand the “legal ramification” of the question. The following exchange ensued:

116. [125]

     When the jury was brought back in, her Honour said:

117. [126]

     This explanation is the subject of ground 15.

118. [127]

     The jury was sent out at 10.53am. At 2.09pm the jury returned with verdicts of guilty to all remaining charges apart from count 6 where its verdict was not guilty.

The grounds of appeal

1. [128]

   As is evident from its wording, the first ground does not need to be addressed separately as it is dependent on the remaining grounds.

2. [129]

   The applicant alleged that the trial judge erred by not vacating the trial, not granting a reasonable adjournment and thereby forcing the appellant to represent himself. The decision whether to grant an adjournment, including one which will have the effect that an accused is required to represent himself, is a discretionary one, which is to be made by the trial judge, taking into account all relevant factors.

3. [130]

   It is evident from her Honour’s reasons for refusing the adjournment that her Honour took into account the progress of the trial to that date (which comprised most of the Crown case) and that it was the applicant’s unilateral decision to withdraw his instructions from his counsel which had led to the application for the adjournment and the potential that the applicant would be unrepresented.

4. [131]

   The applicant argued in this Court that he was justified in dismissing his counsel as his counsel was incompetent. In support of this submission, the applicant took the Court to pages of the transcript which recorded objections made to questions asked by the applicant’s counsel which had been upheld by her Honour and circumstances where his counsel was “corrected” by the trial judge. It is not necessary to set out all the examples relied on by Mr Carnaby. It is sufficient to focus on the applicant’s complaint that his trial counsel had not adequately cross-examined Mr Younes because he had been unable to address her Honour’s concerns. In order to address this matter, it is necessary to review the transcript of Mr Younes’ cross-examination to put the matter in context.

5. [132]

   Mr Younes gave evidence in chief on 24 September 2019 and was cross-examined on 25 September 2019. In the course of cross-examination of Mr Younes, the following exchanges ensued:

6. [133]

   Later in Mr Younes’ cross-examination, the following exchange ensued:

7. [134]

   Shortly thereafter, the following exchange ensued:

8. [135]

   Mr Younes’s evidence concluded on 25 September 2019 and was followed by the evidence of Ms Nouh. When the proceedings resumed on 26 September 2019, in the absence of the jury, Mr Green raised what had occurred during the cross-examination of Mr Younes in the following exchange:

9. [136]

   The first extract set out above demonstrates that Mr Green was putting to Mr Younes something which he recalled Mr Younes as having said the previous day. It appears from what was said by Mr Candelori in support of the subsequent adjournment application that Mr Green did not receive the transcript and therefore was dependent on his memory of what Mr Younes had said. It is a matter of common experience that recollection is often an unreliable guide to the precise terms of a person’s evidence, which is why recourse to the transcript is required. This extract does not demonstrate any incompetence on the part of the applicant’s trial counsel. Rather, it is an example of an everyday occurrence where evidence or its effect is imperfectly recalled by one party’s representative who is corrected by the judge or the other party’s representative.

10. [137]

    The second and third extracts demonstrate that the applicant’s trial counsel was endeavouring to put the applicant’s case to Mr Younes. However, as Mr Younes did not accept particular integers of that case, Mr Green was required to put propositions which were founded on earlier propositions to which Mr Younes had not agreed. This conundrum led to her Honour confirming with the Crown that it would not take a Browne v Dunn (1893) 6 R 67 point against the defence when the applicant gave evidence. In other words, the trial judge sought from the Crown an assurance that the Crown would not object to the applicant giving evidence of a version which had not been put to the Crown’s witnesses. Once this was confirmed, Mr Green was no longer required to cross-examine in this way.

11. [138]

    On 26 September 2019, Mr Green raised the issue with her Honour in a way which I infer arose from the applicant’s instructions to him to do so. There followed an exchange in which Mr Green sought to persuade her Honour that what he had done was permissible. This does not establish any incompetence on the part of Mr Green. While barristers are not to be the mere mouthpieces of their clients, they are bound to act on instructions. Mr Green, having been instructed by the applicant that he was dissatisfied with the rulings on the cross-examination of Mr Younes, raised the matter, properly, with the trial judge. That the trial judge defended her previous rulings and disagreed with the submission put by Mr Green, does not establish any incompetence on the part of Mr Green. Rather, it demonstrates that he was endeavouring to put his client’s case and seeking to persuade her Honour that he ought be permitted more latitude in cross-examination than had been allowed in the cross-examination of Mr Younes.

12. [139]

    The question of alleged incompetence of counsel is to be determined objectively and not by reference to the subjective views of the counsel’s client, who may be undiscerning and incapable of appreciating the efforts made and skill employed on his or her behalf. Having read the whole of the transcript I am not persuaded that Mr Green did not represent the applicant competently throughout the period of his retainer. While the applicant was entitled to terminate Mr Green’s retainer, the Court was not obliged to grant him an adjournment to obtain new counsel. The delays in obtaining such counsel, the length of the trial to that time, and the applicant’s ability to conduct the case himself were all factors which her Honour was entitled to take into account when considering whether to adjourn the matter further.

13. [140]

    I am not persuaded that her Honour’s discretion miscarried. It was plainly open to her Honour to refuse the adjournment in these circumstances, although the evident effect of such refusal would be to require the applicant to represent himself.

14. [141]

    The applicant also submitted that the trial judge ought to have adjourned the matter for longer than she did to permit the applicant to retain new counsel. Her Honour questioned Mr Candelori as to the attempts that had been made to retain new counsel. There was no proposal which identified new counsel and indicated how long the counsel would need to get ready to run the trial.

15. [142]

    Further, the trial judge’s impression that the applicant could adequately represent himself was borne out by the transcript of the balance of the proceedings. The applicant cross-examined the remaining witnesses in the Crown case and gave evidence himself. He addressed the jury at length.

16. [143]

    In addition to the matters raised in the applicant’s written submissions, he submitted orally that he ought not be bound by the agreed facts (which he had personally signed) or by the forensic decisions made by his counsel at the trial. I regard these consequences as the inevitable result of the refusal of the adjournment. The applicant was not entitled to start a trial again from the beginning merely because he had withdrawn instructions from his counsel. The trial judge made allowances for the applicant, including by permitting him to cross-examine Mr Obeid about matters not raised by his counsel in the cross-examination which had been conducted when the applicant was represented.

17. [144]

    The applicant, in oral submissions, relied on McInnis v The Queen (1979) 143 CLR 575; [1979] HCA 65 (McInnis) and in particular the statement by Barwick CJ at 579 that although an accused does not have a right to be provided with counsel at public expense, he does have a right to be represented by counsel at his own or someone else’s expense. The applicant submitted that his right to be represented by counsel at his own expense had been infringed by the trial judge’s refusal of an adjournment. The present case is to be distinguished from McInnis itself in which the accused became unrepresented through no fault of his own. In the present case, the applicant made a unilateral decision to withdraw instructions from his trial counsel who was representing him competently in circumstances where he had no replacement representation or real prospect of replacement representation at a time which would enable the trial otherwise to continue.

18. [145]

    Ground 2 has not been made out.

19. [146]

    The applicant alleged that the trial judge, by granting a certificate under s 128 of the Evidence Act to Mr Obeid, “[c]ondoned and shielded s128 certificate perjurers.” The ground would appear to be based on a misapprehension: that a person to whom a s 128 certificate has been granted cannot be charged with perjury for the evidence given after the certificate has been granted. This is not the case.

20. [147]

    Section 128 provides for the Court to give a certificate to a witness who objects to answering questions on the ground that the answer might tend to incriminate the witness. Section 128(7) provides:

21. [148]

    In other words, the answers given by Mr Obeid could not be used against him, except in proceedings in respect of the falsity of the evidence. Thus, if Mr Obeid’s evidence was thought to be false, he could be charged with giving false evidence.

22. [149]

    In effect, the applicant appeared to submit, in support of ground 3, that her Honour ought to have rejected the evidence of Mr Obeid as unreliable. This submission misapprehended the respective roles of judge and jury. It was a matter solely for the jury whether to accept or reject the evidence of Mr Obeid. It is apparent from the jury’s verdict in respect of count 6 that it was not satisfied that the Crown had proved the count relating to the Audi SQ5 beyond reasonable doubt. It is apparent from the circumstance that her Honour raised count 6 in the context of the applicant’s no case submission that her Honour was concerned that the evidence in support of count 6 was not sufficient to result in a reasonable verdict. In her Honour’s summing up, she highlighted the limitations in the evidence in support of count 6, which may have influenced the jury to return a verdict of not guilty on that count.

23. [150]

    I am not persuaded that the applicant has established any error in her Honour’s treatment of the evidence of Mr Obeid. Accordingly, ground 3 has not been made out.

24. [151]

    The applicant submitted that the trial judge ought to have directed a verdict of not guilty in respect of count 6.

25. [152]

    There is a distinction between a finding that there is a case to answer and the conclusion that a conviction on a charge is unreasonable. The decision whether there is a case to answer is made, on the application by an accused, in advance of the jury being sent out to consider its verdict and is made on the basis that the evidence in support of the charge is to be taken at its highest with no regard to the credibility of witnesses. The conclusion that a conviction on a charge is unreasonable cannot be made by the trial judge; it is a matter for an appellate court, following a conviction: Doney v The Queen (1990) 171 CLR 207; [1990] HCA 51.

26. [153]

    As the narrative set out above indicates, the trial judge had reservations about count 6, which her Honour raised with the Crown although it was not one of the counts in respect of which the applicant made a no case submission. The Crown persuaded her Honour that there was a case to go to the jury in respect of count 6. Her Honour made it clear that she would highlight deficiencies in Mr Obeid’s evidence with respect to count 6 when summing up to the jury.

27. [154]

    The jury found the applicant not guilty of count 6. No appeal lies against a verdict of not guilty. There is no utility in this Court being required to engage in a hypothetical inquiry whether there was a case to answer in respect of count 6.

28. [155]

    I would refuse leave in respect of ground 4 on the basis that this Court ought not engage in hypothetical determinations.

29. [156]

    I note for completeness that the applicant submitted that the trial judge deliberately refused to direct an acquittal in respect of count 6 because her Honour wanted to demonstrate to this Court that the jury had diligently assessed the evidence on all counts, with a view to providing a basis for the applicant’s appeal to be dismissed. This is an extraordinary submission which contains elaborate and utterly unfounded assumptions and must be rejected.

30. [157]

    The applicant submitted that the Crown had withheld evidence and failed to produce material witnesses. There are the following four aspects to this submission:

    1. (1)

       The Crown ought to have called Ms Yassin (in respect of counts 8 and 9) and Mr El Sayed (in respect of counts 15-16) and the verdicts on these counts were unreasonable in the absence of these witnesses;

    2. (2)

       The Crown ought to have called the 26 witnesses identified by the applicant to give evidence as to what became of the motor vehicles;

    3. (3)

       The Crown ought not to have tendered the Cellebrite extraction records from devices seized from the applicant’s premises during the search; and

    4. (4)

       The whole of the bank statements ought to have been tendered in the Crown case.

31. [158]

    These matters will be addressed in turn.

32. [159]

    First, the applicant submitted that the Crown ought to have called Ms Yassin and Mr El Sayed. As referred to above, the Crown led evidence of unsuccessful attempts to locate those witnesses.

33. [160]

    The applicant submitted in this Court that he had subsequently learned (after the trial had concluded) that Mr El Sayed was in the same prison as Mr Bannout and, accordingly, that he was not unavailable and ought to have been called as a witness at the trial. Even assuming the applicant’s information to be correct, I am not persuaded that this alters the position. Senior Constable Gulsoy’s evidence that he had unsuccessfully attempted to locate Mr El Sayed was unchallenged. There is no suggestion that this evidence was other than true or that Senior Constable Gulsoy had any knowledge as to Mr El Sayed’s whereabouts.

34. [161]

    The obligation on the Crown to call or make available for cross-examination all relevant witnesses cannot sensibly apply to a witness who cannot be located. In such cases, the question is whether it was open to a reasonable jury, correctly instructed, to be satisfied of the accused’s guilt of the charge to the requisite standard without the witness or witnesses: The Queen v Apostilides (1984) 154 CLR 563 at 577-578 (Gibbs CJ, Mason, Murphy, Wilson and Dawson JJ); [1984] HCA 38. The reasonableness of the verdicts in respect of counts 8-9 are the subject of ground 10 and in respect of counts 15-16 are the subject of ground 13. However, it is convenient to consider the reasonableness of the verdicts when addressing ground 5.

35. [162]

    The test for determining whether a verdict is unreasonable was authoritatively stated in M v The Queen (1994) 181 CLR 487 at 492-493 (Mason CJ, Deane, Dawson and Toohey JJ); [1994] HCA 63. This determination is a question of fact which the Court must decide by making its own independent assessment of the evidence. The Court must ask itself whether, on the basis of the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.

36. [163]

    In support of counts 8 and 9, the Crown relied on the agreed facts as to the financial documents submitted to Capital Finance; the admitted falsity of the financial documents; Ms Murray’s statement as to the active involvement of the applicant when compared with Ms Yassin’s passive involvement; the circumstances that the applicant collected the vehicle; text messages between Ms Yassin and the applicant in which she stated that she had never seen the vehicle; the presence of documentation relevant to the finance application at the applicant’s premises; and evidence from Mr Wilson of Capital Finance as to the applicant’s ongoing involvement in the finance arrangements.

37. [164]

    The Crown also relied on the substantial similarity in the facts underlying each of the counts as the basis for its submission that they could be used for a tendency and coincidence purpose (based on a ruling from the trial judge which was not challenged by the applicant on appeal). Thus, the Crown relied on all of the evidence as circumstantial evidence to establish that the applicant was involved in the provision of false documentation to secure a financial benefit in the form of credit.

38. [165]

    The applicant argued in this Court that the verdicts on counts 8 and 9 were unreasonable as Ms Yassin was not to be believed (and therefore her statement was not to be accepted) because of the inconsistencies between what she told police (that the car had been stolen) and what she said in the statutory declaration (that Mr Rivkin had possession of it in Melbourne with her consent). This submission would appear to relate to the applicant’s contention made in respect of ground 15 below that if someone is shown to have made a false statement on one occasion, they ought not to be believed on anything else they have said. For the reasons given with respect to ground 15, this proposition does not accord with the law or the directions to be given to juries as to fact-finding. Although Ms Yassin did not give evidence, evidence was admitted as to statements she had made, some of which would appear to be inconsistent.

39. [166]

    It was a matter for the jury to decide whether, notwithstanding Ms Yassin’s statutory declaration about the car being in Mr Rivkin’s custody in Melbourne, other statements she made ought be accepted. The evidence before the jury on this topic included some text messages between Ms Yassin and the applicant (referred to above) which were sent between September and November 2014 (after the date of the statutory declaration) in which she told the applicant that she had been receiving infringement notices which imposed fines for the Mercedes Benz but she did not have the car and wanted him to call her back. It was open to the jury to regard the statutory declaration which Ms Yassin made in August 2014 as a false document created by her to submit to the State Debt Recovery Office to avoid having to pay fines incurred for tolls associated with the Mercedes Benz, which was not in her possession. It was also open to the jury to consider that the true position was reflected in the text messages she sent to the applicant in September, October and November 2014 when she was pleading for his help regarding the vehicle, which he had been involved in acquiring and of which she suspected he had control. I accept the Crown’s submission that, in this event, there is no fundamental inconsistency between the statutory declaration and the text messages that ought to have caused the jury to have a reasonable doubt about the applicant’s involvement compared with Ms Yassin’s involvement in the acquisition and subsequent use of the Mercedes Benz.

40. [167]

    Having reviewed the whole transcript and all the documentary evidence, I am satisfied that it was reasonably open to the jury to find the applicant guilty of counts 8 and 9, notwithstanding the absence of Ms Yassin as a witness in the Crown case.

41. [168]

    The applicant submitted that the Crown case on counts 15 and 16 was similar to its case on counts 21 and 22 in that the relevant borrower (Mr El Sayed) was not called to establish counts 15 and 16 and the relevant borrower (Ms Badal) was not called to establish counts 21 and 22. On this basis, he contended that the jury’s verdicts on counts 15 and 16 were unreasonable.

42. [169]

    As referred to above, whether a verdict is unreasonable can only be decided by reference to all of the relevant evidence. While there was a paucity of evidence in support of counts 21 and 22 (which led to directed verdicts on each of these counts), there was substantial evidence in support of counts 15 and 16, notwithstanding Mr El Sayed’s unavailability to give evidence. Further, the Badals, who were the relevant participants with respect to counts 21 and 22 were not unavailable. The Crown had made a forensic decision not to call them, a matter which was of particular significance to her Honour when addressing the no case submission in respect of counts 21 and 22, as is apparent from her Honour’s reasons.

43. [170]

    In respect of counts 15 and 16, the Crown relied on the agreed facts regarding the financial documents submitted to Esanda and Alphera Financial Services; the admitted falsity of those documents; the presence of substantial documentation relating to the finance application at the applicant’s home; the applicant’s evidence that he helped Mr El Sayed get a motor vehicle; and a statement of a tax agent (Mr Jilany) that he was not involved in the preparation of the financial documents submitted in support of the finance application. As with all counts, the Crown relied on the evidence on other counts to support its submission on tendency and coincidence.

44. [171]

    Having reviewed the whole transcript and all the documentary evidence, I am satisfied that it was reasonably open to the jury to find the applicant guilty of counts 15 and 16, notwithstanding that Mr El Sayed did not give evidence.

45. [172]

    Second, the applicant submitted that the Crown ought to have called the 26 witnesses which he identified to give evidence as to what became of the motor vehicles. The Crown refused to call the nominated witnesses in its own case as its case was that the relevant financial advantage was the provision of credit, about which the witnesses could give no relevant evidence. The Crown, however, indicated that it would not object to the applicant calling the witnesses in his own case, on the basis that the witnesses might give evidence as to whether the scheme was honest or otherwise.

46. [173]

    On 10 October 2019 (day 15 of the trial), the Crown informed the Court that it proposed that the applicant would need only to identify the witnesses he wanted called and the Crown would draft the relevant subpoenas and arrange for the police to serve them on the potential witnesses (thereby addressing the concerns about privacy which would arise if the applicant were given the personal details of the potential witnesses).

47. [174]

    The trial judge was concerned about the length of the trial (and the potential discharge of jurors who might become unavailable if the trial substantially exceeded its estimated length) and explored with the parties whether the matter could be more efficiently dealt with in cross-examination of Senior Constable Gulsoy. The Crown indicated that Senior Constable Gulsoy had prepared a statement dated 24 August 2019 (which had been disclosed to the defence) setting out the results of the investigations into what had happened to the vehicles. Her Honour informed the applicant that it was open to him to cross-examine Senior Constable Gulsoy to see what information could be obtained to assist his case.

48. [175]

    In this Court, the applicant relied on his affidavit sworn 6 May 2021 in which he deposed that all of the “listed witnesses” were “materially related to this case through either owning or driving cars of interest”. He said at [9] of the affidavit:

49. [176]

    There was no attempt to prevent the applicant from calling the witnesses he had identified. The applicant is bound by his forensic choice not to call them. Further, there is no basis for supposing that any of the witnesses would have assisted the defence case, as the applicant accepted in the paragraph from his affidavit extracted above. In so far as the applicant sought to rely, in support of his submission that the verdicts were unreasonable, on the fact that these potential witnesses were not called, I reject the submission. As he accepted, it was unknown what the potential witnesses would have said. Further, they were irrelevant to proof of the charges as the Crown had put its case on the basis that the financial advantage was the obtaining of credit, a matter which could not be affected by what ultimately happened to the vehicles which were acquired with the credit obtained.

50. [177]

    The applicant submitted that the Crown ought not to have tendered the Cellebrite extraction records which recorded downloads from the various devices seized in the course of the search of the applicant’s home. The Crown and the applicant’s trial counsel had agreed on the documents which would be tendered before the trial counsel was dismissed. When the Crown sought to tender the bundle, the applicant objected and sought to call the officer who extracted the data, on the basis that the record was incomplete. The matter was resolved by the Crown providing the applicant with a USB stick which contained the whole of the Cellebrite record. Ultimately, the applicant tendered the additional Cellebrite extracts on which he relied. This aspect of ground 5 has not been made out.

51. [178]

    On 14 October 2019 (day 16 of the trial), the Crown proposed to tender bank statements from 27 June 2013 for two purposes: first, to prove cash deposits made to the applicant’s bank account to establish the credit obtained in relation to the counts which comprised charges of obtaining a financial advantage in the form of credit; and, second, to rebut what the applicant said in his ERISP that he was financially dependent on his children. The applicant’s objection to the tender of the bank statements was overruled on the basis that the Crown was held to be entitled to tender such statements as they established the credit given. The applicant responded that if any bank statements were to be admitted, all bank statements ought be admitted. Ultimately, on 14 October 2019, the Crown tendered an affidavit of Tristen Armstrong, a Compliance Officer with the Commonwealth Bank, to which were annexed relevant documents which related to the applicant’s bank account, including bank statements which showed relevant deposits. The affidavit was admitted over the applicant’s objection (referred to above). I note that the documents annexed to Mr Armstrong’s affidavit were admissible as business records. In jury trials and otherwise, such documents are usually tendered without an affidavit to support them (unless this is done by consent). Thus, it was not necessary for the Crown to rely on Mr Armstrong’s affidavit since it could simply have tendered the documents annexed to it.

52. [179]

    At the time Mr Armstrong’s affidavit was tendered and marked as Exhibit AB, the applicant did not seek to cross-examine him. However, on the following morning, 15 October 2019, the applicant said that he wanted to cross-examine “the person who submitted these bank statements” (presumably Mr Armstrong). The Crown objected on the basis that all that Mr Armstrong deposed in his affidavit was that the bank statements had come from the bank’s records. Her Honour refused the applicant’s application on the ground that the Crown case had almost closed and that all the bank statements had been served as part of the brief.

53. [180]

    Mr Armstrong’s sole responsibility was to extract and produce the bank records. He could give no useful evidence as to the transactions recorded in them. The applicant was entitled to lead evidence in his own case as to the source of any of the deposits into his accounts. The applicant did not require Mr Armstrong for cross-examination before his affidavit was tendered. The applicant had been aware of all of the bank records for a considerable period. I am not persuaded that her Honour’s refusal of his application was erroneous or led to any miscarriage of justice.

54. [181]

    For the reasons given above, ground 5 has not been made out.

55. [182]

    As is evident from the narrative of the evidence set out above, the statements of Ms Atelj, an employee of City Motors Group (Exhibits M and N), concerned the processing of Ms Yassin’s finance application for the purchase of a Mercedes Benz. Both statements were admitted without objection on 2 October 2019, when the applicant was appearing for himself. Exhibit X was Ms Murray’s statement of her observations of the applicant and Ms Yassin at the Mercedes Benz dealership in Wollongong. It was admitted without objection, on 14 October 2019, when the applicant was appearing for himself.

56. [183]

    The applicant’s trial counsel had earlier objected under s 137 of the Evidence Act (the discretion to reject evidence if its probative value is outweighed by unfair prejudice) to the oral evidence which the Crown proposed to lead on the basis of these witness statements in circumstances where Ms Yassin was not available to give evidence. However, her Honour ruled against these objections on the basis that Ms Murray was available for cross-examination and could be challenged on her recollection as to the event and her belief that the person present was Ms Yassin and that Ms Atelj did not have any interactions with Ms Yassin and acted on the documents she received.

57. [184]

    I am not persuaded that there was any error in these rulings. Ms Murray’s observations of the applicant’s conduct in the course of the application and Ms Atelj’s evidence of the documents provided for the finance application were relevant and admissible, whether or not Ms Yassin was available to give evidence. The question of fairness must be assessed in relation to the particular circumstances of the case: R v Suteski (2002) 56 NSWLR 182; [2002] NSWCCA 509 at [126]-[127] (Wood CJ at CL, Sully and Howie JJ agreeing).

58. [185]

    In oral submissions, the applicant also sought to argue that his trial counsel was incompetent for making the application that Ms Atelj and Ms Murray ought not be permitted to give evidence having regard to the unavailability of Ms Yassin. He particularly relied on the Crown’s submission, in response to the application, that the application was “misconceived”. The applicant submitted in this Court that “[e]ven the Crown treated him [the applicant’s trial counsel] like a child.” This submission is relevant to ground 2 although it is convenient to address it here. The word “misconceived” is not infrequently used rhetorically in courtrooms and in correspondence between solicitors. To persons unaccustomed to hearing or seeing it in these contexts, it may carry a significant sting. The Crown’s submission was an orthodox one and did not unduly disparage the submission made by applicant’s trial counsel. I do not regard it as adding to the submission as to the alleged incompetence of trial counsel which I have rejected for the reasons given above, taking into account this additional matter relied on by the applicant.

59. [186]

    I am not persuaded that ground 6 has been made out.

60. [187]

    Ground 7 overlaps to some extent with aspect (4) of ground 5 which has been addressed above. In his submissions in support of ground 7, the applicant further contended that the trial judge misdirected the jury regarding the applicant’s case as to the deposits in the bank statements. He argued that the bank statements were “misleading” because they showed large cash deposits prior to the 1 January 2013, which was the commencement of the first period in time on the indictment (for counts 1-7). However, it was the applicant who had requested that these earlier bank statements be tendered. Further in his closing submission, the applicant told the jury that he knew how to gamble and received money from his children and from friends whom he had helped when they were in trouble. Ground 7 has not been made out.

61. [188]

    A summary of the circumstances concerning this ground, which have not been included in the narrative above, is as follows. In Mr Obeid’s evidence in chief, he was asked about what he had said in a statement to police as follows:

62. [189]

    In the course of cross-examining Mr Obeid, the applicant’s trial counsel foreshadowed that he proposed to put to Mr Obeid, based on his having been convicted in 1995 for malicious wounding and assault occasioning actual bodily harm, that he would not have feared physical violence from the applicant or his associates. Her Honour rejected the proposed question on the basis that no such connection could be made where one did not know the circumstances of the conduct the subject of the conviction. I am not persuaded that this ruling was other than correct.

63. [190]

    The applicant argued in this Court that the question was admissible as he was 70 years old and could hardly walk and that, in effect, it was highly implausible that a man who had been convicted of malicious wounding and assault occasioning actual bodily harm could be scared of him. The obvious answer to this submission is that Mr Obeid’s evidence of fear was related not only to fear of the applicant, but also (and more importantly) to fear of the applicant’s associates. As the narrative summary set out above indicates, there were several occasions on which the applicant spoke to others about his criminal associates, including Mr Hamzy.

64. [191]

    I note that, in oral submissions in this Court, the applicant also sought to rely on the trial judge’s rejection of this line of cross-examination of Mr Obeid as evidence of trial counsel’s incompetence. I reject this submission. Although I regard her Honour’s ruling as correct, it was neither inappropriate nor incompetent for the applicant’s trial counsel to seek to cross-examine Mr Obeid on that topic. Indeed, his conduct in raising the matter in advance and in the absence of the jury accords with proper trial practice.

65. [192]

    In the course of oral argument on the appeal, the applicant confirmed in answer to a question from the Presiding Judge that when he used the word “inconsistent” in his grounds, he was referring to the inconsistency between the verdict of guilty returned by the jury and the evidence adduced in the trial. In these circumstances, all of the grounds where this formulation is used are to be understood as grounds that the verdicts were unreasonable.

66. [193]

    In substance, the applicant submitted that the verdicts on counts 1-5 and 7 are unreasonable because the jury ought not to have accepted the evidence of Mr Obeid. The applicant pointed to inconsistencies between the evidence of Mr Obeid and other witnesses, as well as the circumstance that Mr Obeid obtained a discount on his sentence for providing assistance to authorities.

67. [194]

    However, as the High Court held in M v The Queen, the question whether a verdict is unreasonable is to be determined by reference to the whole of the evidence. As appears from the narrative summary above, there was considerable evidence in support of counts 1-5 and 7 in addition to the evidence of Mr Obeid, which support Mr Obeid’s evidence. The evidence of Mr Obeid was not only supported by the documentary evidence, agreed facts, the evidence of employees at the various motor vehicle dealerships and the wealth of relevant documentation located at the applicant’s home, but also by admissions made by the applicant in his ERISP. It was open to the jury to accept Mr Obeid’s evidence and reject the applicant’s evidence. Further, it was entitled to take into account the wealth of evidence which corroborated Mr Obeid’s evidence on those grounds. Having reviewed all the evidence in support of counts 1-5 and 7, I am satisfied that it was open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt of those counts.

68. [195]

    Further, although I did not understand the applicant to submit that his acquittal on count 6 was inconsistent with his convictions on counts 1-5 and 7, if he did make this submission, it is to be rejected. The evidence in support of count 6 was significantly weaker than the evidence of the other counts relating to Mr Obeid, as her Honour outlined in the summing up. That the jury found the applicant not guilty of count 6 is an indication of the diligence with which it approached its task.

69. [196]

    The reasonableness of the convictions on counts 8 and 9 has been addressed above in the consideration of ground 5. For the reasons given above, this ground has not been made out.

70. [197]

    The applicant seeks to impugn his convictions for counts 10 and 11 on two bases. First, that the judge unfairly intervened in the course of Mr Green’s cross-examination of Mr Younes, whose evidence formed the basis of counts 10 and 11; and, secondly, that the jury ought to have disbelieved Mr Younes because he was dishonest and gave an induced statement.

71. [198]

    The first matter has already been addressed in the context of ground 2. Her Honour’s rejection of questions sought to be put by the applicant’s trial counsel was both fair and correct. Neither the questions asked by the applicant’s trial counsel in the cross-examination of Mr Younes, nor her Honour’s rulings, are deserving of criticism. The second matter can be addressed shortly. It was a matter for the jury whether to accept all or part of Mr Younes’ evidence and whether to accept all or part of the applicant’s evidence. As is apparent from the narrative summary above, the evidence adduced by the Crown of counts 10 and 11 derived from a number of sources and not merely from Mr Younes. These sources included admissions made by the applicant in his ERISP, Ms Salmeh’s statement, images of the Audi R8 found on the applicant’s phone as well as the evidence as a whole on which the Crown relied for both tendency and coincidence purposes.

72. [199]

    Having reviewed all the evidence in support of counts 10 and 11, I am satisfied that it was open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt of those counts. Ground 11 has not been made out.

73. [200]

    The applicant argued that the evidence of Mr Gruppelaar ought not to have been accepted by the jury because his memory of the transaction had to be refreshed by the Crown. However, a review of the evidence of Mr Gruppelaar indicates that he was firm and consistent in his evidence that the financial documents in support of the application for finance were provided to him by the applicant before he met with Mr Bannout.

74. [201]

    The evidence of Mr Gruppelaar to this effect was inconsistent with Mr Bannout’s evidence that “Nick [Mr Agar] gave me documents”. However, Mr Bannout also said that he gave documents to Nick, and confirmed when cross-examined by the applicant that the applicant had not provided him with any documents. In re-examination by the Crown, Mr Bannout said that he never saw any of the documents that were prepared to obtain the cars, that he did not prepare any documents himself, and that he thought that Nick had done so.

75. [202]

    The jury was entitled to prefer Mr Gruppelaar’s evidence to that of the applicant and to regard Mr Bannout’s evidence as generally unreliable as it was, at certain critical points, inconsistent. It is evident from the narrative summary that the Crown did not elicit evidence in chief from Mr Bannout but rather made him available for cross-examination at the applicant’s request. The verdicts on counts 12, 13 and 14 were also supported by the evidence of Mr Walker, Mr Bulgin and Mr Nixon, the agreed facts and the substantial number of documents and other items found at the applicant’s home. Further, the applicant made a number of admissions in the course of his ERISP as to his involvement in the transactions which were the subject of counts 12, 13 and 14.

76. [203]

    Having reviewed all the evidence in support of counts 12, 13 and 14, I am satisfied that it was open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt of those counts. Ground 12 has not been made out.

77. [204]

    This count has been addressed in the consideration of ground 5. For the reasons given above, the ground has not been made out.

78. [205]

    The applicant argued that the verdicts of conviction on counts 17-20 were unreasonable because the jury ought not to have believed Ms Nouh as she gave an induced statement. He also argued that it was relevant that she had said, “I am not prepared to bankrupt myself for this amount [$15,000]” and contended that the trial judge had erroneously refused to allow him to cross-examine Ms Nouh about her bankruptcy in 2008. The applicant contended in this Court that anyone who was declared bankrupt must be “aware of everything to do with obtaining finance.” I understood him to submit, on that basis, that Ms Nouh had her eyes open when she entered into the transactions which were the subject of counts 17-19 and could not have been “recruited” by him (count 12).

79. [206]

    The applicant argued further that, as Ms Nouh knew what she was doing, she must have been acting with him in furtherance of a joint criminal enterprise. He asked rhetorically, why she had not been charged with this and what the alleged joint criminal enterprise was.

80. [207]

    The applicant also relied on Ms Nouh’s statement (about which the applicant cross-examined her) that she had deleted all of the applicant’s numbers and messages from her phone at his request. He compared this statement with the evidence of messages from the applicant which remained on her phone and said that this showed that she was “lying” and could not be relied upon. Further, he submitted that because he did not have access to all the messages (which he sent her) as she had deleted some, “maybe there is something that will say or will prove that she was lying”.

81. [208]

    The trial judge correctly ruled against the line of cross-examination regarding Ms Nouh’s alleged bankruptcy in 2008 on the basis of relevance. The applicant’s submission that anyone who goes bankrupt knows everything about obtaining finance needs only to be stated to be refuted.

82. [209]

    As to the applicant’s submission that Ms Nouh ought to have been charged with involvement in a joint criminal enterprise, the charges laid are a matter for prosecutorial discretion and are not, subject to limited exceptions, reviewable by a court: Elias v The Queen; Issa v The Queen (2013) 248 CLR 483 at [30] and [35]; [2013] HCA 31 (French CJ, Hayne, Kiefel, Bell and Keane JJ).

83. [210]

    The applicant’s submission about Ms Nouh’s statement about having deleted the applicant’s numbers and messages does not take account of Ms Nouh’s further evidence that she had just deleted the numbers and not the messages. As referred to above, the question of what weight to give to Ms Nouh’s evidence was a matter for the jury. The applicant addressed the jury on the inconsistencies in her evidence and pointed to various aspects of her evidence which he urged them to find was unsatisfactory.

84. [211]

    The jury was obliged to consider the evidence as a whole. The evidence in support of counts 17-20 was considerable, as the narrative summary set out above indicates. It included the statement of Mr Pahul, the evidence of Mr Candy, the evidence of Mr Bannout and the documents found at the applicant’s home. It also included all the evidence of the other counts on the basis referred to above.

85. [212]

    Having reviewed all the evidence in support of counts 17, 18, 19 and 20, I am satisfied that it was open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt of those counts. Ground 14 has not been made out.

86. [213]

    There would appear to be five aspects to ground 15: first, that the trial judge ought to have granted the adjournment for a longer period; second, that the trial judge ought to have informed the jury of the reasons why the applicant had become unrepresented; third, that the trial judge directed the jury that it was entitled to accept parts of a witness’s evidence and reject other parts; fourth, that the Crown went beyond the limits set by the trial judge for its closing submissions; and, fifth, that the summing up was unfair.

87. [214]

    The first aspect of the ground has already been addressed in my consideration of ground 2.

88. [215]

    As to the second aspect, it is apparent from the transcript that the trial judge, the Crown, the applicant’s trial counsel and Mr Candelori, the applicant’s solicitor, were concerned to shield the jury from any information about the reason for the applicant appearing for himself. So much is evident from the exchanges which took place in the absence of the jury. Mr Candelori urged the trial judge to keep it “neutral”. It became clear in the course of his submissions in this Court that the applicant wished to contend that he had dismissed his counsel on the grounds of alleged incompetence and he would have liked the jury to have been made aware of this matter.

89. [216]

    First, I am not satisfied that the applicant’s trial counsel was incompetent in any way. Although some of his questions were ruled inadmissible, this is not unusual in the context of a trial and does not imply incompetence: cf. R v Birks (1990) 19 NSWLR 677 at 685 (Gleeson CJ, McInerney J agreeing). On a number of occasions, the trial judge informed the applicant that Mr Green was a competent counsel who was representing him well. Had the trial judge appreciated that this was the reason for trial counsel’s withdrawal from the matter, and had her Honour informed the jury that the applicant had dismissed his trial counsel on the grounds of alleged incompetence (a matter with which the trial judge did not agree), there was a considerable risk that the jury would have thought less of the applicant, particularly if the jury considered that he had been doing a good job for the applicant. There was every reason why the trial judge, the Crown and Mr Candelori were circumspect about allowing the jury to know anything about the reasons for the applicant representing himself.

90. [217]

    Second, it was within the applicant’s power to tell the jury himself that he thought he could do a better job than Mr Green (if that was his view). He refrained from informing them himself and is bound by his forensic decision.

91. [218]

    The applicant refused to accept the correctness of the direction that a jury is entitled to accept parts of a witness’s evidence and reject other parts. He submitted orally to this Court:

92. [219]

    The applicant’s submission is at odds with the authority of Dublin, Wicklow & Wexford Railway Co v Slattery (1878) 3 App Cas 1155 at 1201 (Lord Blackburn). It is standard for trial judges to direct the jury that they are entitled to accept parts of a witness’s evidence and reject other parts. This misapprehension would appear to underlie the applicant’s complaints about the jury’s acceptance of the evidence of other witnesses, such as Mr Obeid (addressed above) although it was only articulated in this form in the context of ground 15.

93. [220]

    Further, the applicant challenged the answer which the trial judge gave to the jury’s question about the date in Mr O’Neill’s statement. As is evident from the explanation given by her Honour, the date in the statement was in error as it was inconsistent with contemporaneous business records and agreed facts by a whole year (the witness statement referred to 2014 and other evidence established that it ought to have been 2015). The applicant objected to the direction at trial and in this Court on the basis that Mr O’Neill’s error was relevant to his credibility. As the error was identified by the jury after it had retired to consider its verdicts, there was no occasion for the applicant to require Mr O’Neill for cross-examination and challenge him about the date on which the events occurred. I am not persuaded that there was any error in the way her Honour dealt with the jury’s question.

94. [221]

    The applicant’s submission that the Crown had transgressed the limitations on its closing submissions imposed by the trial judge was based on the length of the Crown’s closing submission. Further, the applicant was given a copy of the Crown’s outline and therefore had the opportunity to object to any part of it if he considered that it breached the limitations imposed by the trial judge. He made no such objection.

95. [222]

    As is evident from the narrative summary, the Crown’s closing submissions commenced on Friday 18 October 2019 (on which the Court only sat until the luncheon adjournment) and concluded on Monday 21 October 2019 before the morning tea adjournment. The applicant did not identify, by reference to the substance of the address, any transgression of the limitations imposed by her Honour on the Crown to confine its address to outlining the Crown case on the various counts on the indictment.

96. [223]

    The fairness of a summing up must be assessed as a whole. I am not persuaded that any of the passages identified by the applicant in his written submissions establish unfairness. To the contrary, the transcript shows the extent to which the trial judge sought to ensure that the applicant obtained a fair trial in circumstances where he was self-represented. Ground 15 has not been made out.

97. [224]

    The basis for ground 16 is that the jury deliberated for only six hours over two days.

98. [225]

    The time taken by juries to reach verdicts is both variable and unpredictable. It is a product of unknown factors, including whether there is general agreement from the outset as to the credibility of particular witnesses; and whether the jury has a good grasp of the evidence when they are sent out to deliberate or whether some of its members would like to go through the transcript and exhibits in detail before arriving at a verdict. The Crown case was, in substance, that the individual counts represented a dishonest course of conduct (hence its reliance on the evidence of one count as evidence on another). The jury was entitled to accept that case and convict on all grounds, save for count 6 where the evidence was considerably weaker (as had been pointed out to them by the trial judge in her summing up) than on the other grounds.

99. [226]

    I do not regard the time taken by the jury as being unreasonably short or as providing any indication that the jury did other than discharge their functions in accordance with the oath or affirmation each member took at the outset, on the basis of the whole of the evidence in the trial. Ground 16 has not been made out.

The applicant’s bail application

1. [227]

   On 6 May 2021 the applicant filed an application for release on bail pending the determination of his appeal against his conviction. That application was heard on 23 August 2021. It was dismissed on that day with reasons provided on 27 August 2021: Carnaby v R [2021] NSWCCA 203. The Court concluded at [15] and [24] that the matters put forward by the applicant in support of his application did not individually or collectively amount to “special and exceptional circumstances” as s 22 of the Bail Act 2013 (NSW) requires.

2. [228]

   On 15 September 2021 the applicant filed a second application for release dated 25 August 2021. The basis for the further application was similar to what had been put forward on the earlier application, namely, the difficulty for the applicant of preparing his appeal whilst in custody because of the restrictions on his use of, and access to, available resources.

3. [229]

   At a call-over on 21 October 2021 the Registrar advised that the release application could not be listed prior to the hearing of the appeal and would need to be listed for hearing with the appeal. The applicant then indicated that he wanted to amend, and add to his grounds and submissions on the appeal. The Registrar indicated that the bail application could proceed on 3 November 2021, with the conviction appeal being heard at a later date, although not before 9 May 2022. In those circumstances the applicant indicated that he would rely on his grounds and submissions on appeal as filed, and would proceed with both the appeal and the release application on 3 November 2021.

4. [230]

   Given that the basis of the release application was the difficulty the applicant was having preparing his appeal in prison, and the fact that the appeal was heard at the same time as the release application, that basis for bail being granted has fallen away. In those circumstances, the applicant submitted at the conclusion of the hearing of the appeal, that he should be released on bail because it was likely that the Court would reserve its decision on the appeal. He drew attention to his poor health to submit that he may die in prison.

5. [231]

   One of the mandatory considerations in s 18(1) of the Bail Act is paragraph (j) which provides:

6. [232]

   Having regard to paragraph (j), and particularly because the appeal grounds alleged unreasonable verdicts in respect of each of the counts, the Court considered that it ought to reserve its decision on the applicant’s release application as well as on the appeal. This was because the resolution of the appeal would inform the outcome of the release application.

7. [233]

   In the circumstances where the appeal is to be dismissed, no further basis exists for the grant of bail. In those circumstances the release application should be dismissed.

Proposed orders

1. [234]

   For the reasons given above, I propose the following orders: