BROWN -v- DEVEROUX [2008] WASC 299

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WASC 299
Case No:	SJA:1060/2008	Heard:	16 OCTOBER 2008
Coram:	HASLUCK J	Delivered:	18/12/08
No of pages:	20	Judgment Part:	1 of 1
Result:	Appeal allowed Decision of magistrate set aside Matter remitted to Magistrates Court for rehearing
Category:	B
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Parties:	DEBORAH LOUISE BROWN NICOLLE JACQUELYN DEVEROUX
Catchwords:	Criminal law and procedure Appeal against acquittal Fraud Common law meaning of 'intent to defraud' and effect of amendments to s 409 of the Criminal Code Meaning of the term 'intent to defraud' when there is no economic loss and no public duty issue Finding that magistrate erred Appeal allowed and remitted for re-hearing
Legislation:	Criminal Appeals Act 2004 (WA), s 14 Criminal Code (WA), s 409(1)(c), s 409(1)(d) s 409(1)(e), s 409(3), s 552(1) Criminal Law Amendment Act 1990 (WA)
Case References:	Balcombe v De Simoni (1972) 126 CLR 576 Bolitho v The State of Western Australia (2007) 34 WAR 215; [2007] WASCA 102 Garrett v Nicholson (1999) 21 WAR 226; [1999] WASCA 32 Glennon v The Queen (1994) 179 CLR 1 Harling v Hall (1997) 94 A Crim R 437 M v The Queen (1994) 181 CLR 487 Peters v The Queen (1998) 192 CLR 493 R v Kastratovic (1985) 42 SASR 59; (1985) 19 A Crim R 28 Re London & Globe Finance Corporation Ltd (1903) 1 Ch 728 Skerritt v O'Keefe [1999] WASCA 183

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : BROWN -v- DEVEROUX [2008] WASC 299 CORAM : HASLUCK J HEARD : 16 OCTOBER 2008 DELIVERED : 19 DECEMBER 2008 FILE NO/S : SJA 1060 of 2008 BETWEEN : DEBORAH LOUISE BROWN

Appellant

AND

NICOLLE JACQUELYN DEVEROUX

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE P A NICHOLLS

File No : PE 66962 of 2007, PE 66963 of 2007

Catchwords:

Criminal law and procedure - Appeal against acquittal - Fraud - Common law meaning of 'intent to defraud' and effect of amendments to s 409 of the Criminal Code - Meaning of the term 'intent to defraud' when there is no economic loss and no public duty issue - Finding that magistrate erred - Appeal allowed and remitted for re-hearing

(Page 2)

Legislation:

Criminal Appeals Act 2004 (WA), s 14

Criminal Code (WA), s 409(1)(c), s 409(1)(d) s 409(1)(e), s 409(3), s 552(1)
Criminal Law Amendment Act 1990 (WA)

Result:

Appeal allowed

Decision of magistrate set aside
Matter remitted to Magistrates Court for rehearing

Category: B

Representation:

Counsel:

Appellant : Ms R J Haylock

Respondent : Mr A R Godecke

Solicitors:

Appellant : Director of Public Prosecutions (WA)

Respondent : Griffiths & Godecke

Case(s) referred to in judgment(s):

Balcombe v De Simoni (1972) 126 CLR 576
Bolitho v The State of Western Australia (2007) 34 WAR 215; [2007] WASCA 102
Garrett v Nicholson (1999) 21 WAR 226; [1999] WASCA 32
Glennon v The Queen (1994) 179 CLR…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Brown v Deveroux

Details

AGLC: Brown v Deveroux [2008] WASC 299
Case: [2008] WASC 299
Decision Date: 19 DECEMBER 2008

CaseChat Overview and Summary

In Brown v Deveroux, the appellant sought to appeal the decision of a magistrate who acquitted the respondent of charges related to fraud. The case involved the respondent's involvement in a scheme that led to the fraudulent acquisition of funds through false representations. The primary legal issue before the court was the interpretation of the term 'intent to defraud' under the common law, especially in light of amendments to section 409 of the Criminal Code. The court was required to determine whether the respondent's actions constituted fraud without the presence of economic loss or a public duty issue.

The court examined the common law definition of 'intent to defraud' and considered the impact of legislative amendments. It found that the magistrate had erred in their application of the law, particularly in relation to the absence of economic loss. The court concluded that the respondent's intent to deceive for personal gain was sufficient to meet the threshold for fraud under the common law. The decision highlighted the importance of understanding the common law principles in interpreting statutory provisions and emphasised that intent to defraud could be established even in the absence of economic loss. Consequently, the appeal was allowed, and the matter was remitted to the Magistrates Court for a rehearing.

Orders

Orders of the court

Appeal allowed

Decision of magistrate set aside

Matter remitted to Magistrates Court for rehearing

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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