Brown v Deveroux
[2008] WASC 299
•19 DECEMBER 2008
BROWN -v- DEVEROUX [2008] WASC 299
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASC 299 | |
| Case No: | SJA:1060/2008 | 16 OCTOBER 2008 | |
| Coram: | HASLUCK J | 18/12/08 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Decision of magistrate set aside Matter remitted to Magistrates Court for rehearing | ||
| B | |||
| PDF Version |
| 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
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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 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
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1 HASLUCK J: The appellant, Deborah Louise Brown, has obtained leave to appeal against an acquittal of the respondent after trial in the Magistrates Court at Perth.
2 The question raised by the appeal essentially concerns the meaning of the term 'intent to defraud' within the context of the statutory provision I will come to shortly.
3 The appeal is opposed by the respondent who was represented by counsel at the hearing before the learned magistrate and at the hearing of the appeal before me.
The charge
4 The respondent was charged with two offences that were said to have arisen under s 409(1)(c) of the Criminal Code (WA).
5 The provision in question says in effect that any person who, with intent to defraud, by deceit or any fraudulent means gains a benefit, pecuniary or otherwise, for any person, is guilty of a crime and is liable to a prescribed penalty.
6 For present purposes, it is important to look at the provision in question in its context. Section 409(1) of the Criminal Code in its entirety (leaving aside the prescribed penalties) reads as follows:
Any person who, with intent to defraud, by deceit or any fraudulent means -
(a) obtains property from any person;
(b) induces any person to deliver property to another person;
(c) gains a benefit, pecuniary or otherwise, for any person;
(d) causes a detriment, pecuniary or otherwise, to any person;
(e) induces any person to do any act that the person is lawfully entitled to abstain from doing; or
(f) induces any person to abstain from doing any act that the person is lawfully entitled to do,
is guilty of a crime.
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The hearing before the magistrate
7 By prosecution notice 07/66962 the respondent was charged (after allowing for amendments made at the hearing) that on 18 August 2007 at Belmont she, with intent to defraud by fraudulent means, attempted to gain a benefit, namely, dispensation of the medication Stilnox (ie Zolpidem) and Tramal (ie Tramadol) contrary to s 409(1)(c) of the Criminal Code.
8 By prosecution notice 07/66963 (as amended at the hearing) she was charged that on 15 August 2007 at Belmont she, with intent to defraud by fraudulent means, attempted to gain a benefit, namely, dispensation of the medication Stilnox (ie Zolpidem) contrary to s 409(1)(c) of the Criminal Code.
9 The respondent pleaded not guilty to the alleged offences. The matter was heard in the Perth Magistrates Court on 17 June 2008.
10 The prosecutor began by adducing evidence from Kiat Nee Kho who was employed by Wizard Warehouse Pharmacy at Belmont as a pharmacist. Her duties included dispensing medication to patients who presented prescriptions. In the course of her evidence she said that the respondent, Nicolle Deveroux, was a regular customer at the subject pharmacy.
11 Ms Kho described the system concerning prescriptions. She said that if no repeat was issued by a doctor then the original and the duplicate copy were both retained by the pharmacy. Where provision had been made for a repeat the pharmacy would retain the original and hand back to the customer the subject drugs, the duplicate and the number of repeats.
12 She said further in her evidence that on the original prescription, normally a repeat is indicated by a number plus a letter from the doctor saying there is either two repeats, three repeats or otherwise as the case might be.
13 In other words, the pharmacy generates a document described as an 'authorised repeat prescription document' with the duplicate being attached to it so that whoever dispenses the next repeat can refer to the duplicate to establish what was prescribed by the doctor. Information concerning transactions was retained on the pharmacy computer system.
14 The prosecutor adduced evidence also from Dr Cathryn Michelle D'Cruz who said that she was a general practitioner employed at the
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- Dsana Whole Health Clinic in Cambridge Street, Wembley. The respondent came to see her initially on 11 June 2007 and was seen by her on five occasions in all. On 17 July 2007, being the occasion of the second visit, Dr D'Cruz prescribed Stilnox slow release 12.5 mg tablets, quantity of 42 with no repeats.
15 Exhibit A was the prescription form signed by Dr D'Cruz for Stilnox 12.5 mg tablets for a quantity of 42 which had been given to the respondent but now including an annotation '+2' in a way that would suggest that two repeats had been authorised.
16 In the course of cross-examination of Dr D'Cruz a document was tendered on behalf of the accused as Exhibit 1 being a prescription for Endep 50 mg tablets dated 1 August 2007. Later an original prescription was tendered on behalf of the accused by consent as Exhibit B. These documents had the annotation '+2' also.
17 At the close of the prosecution case defence counsel informed the court that no evidence was to be given or called by the accused.
Overview
18 It is apparent from the evidence adduced at the hearing that on the prosecution case the respondent's original prescription legitimately entitled her to one quantity of Stilnox SR (42 tablets) but the respondent altered the prescription by adding the handwritten notation '+2', fraudulently signifying that the prescribed doctor had ordered repeats of the prescription.
19 On 15 August 2007 she attended the subject pharmacy. Kiat Nee Kho, as the pharmacist on duty, established that the respondent had gone to another pharmacy four days before to have the original prescription dispensed. Due to her concerns about the respondent's request for a repeat of the drug within a short time span, the pharmacist refused to dispense the repeat medication to the respondent.
20 The pharmacist later telephoned Dr D'Cruz as the prescribing doctor who confirmed that she had written a prescription but had not ordered any repeats for the drug on the prescription.
21 On 18 August 2007 the respondent returned to the subject pharmacy and presented another prescription bearing an order for two repeats. The pharmacist consulted the prescribing doctor who confirmed that no
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- repeats had been prescribed. The pharmacist did not dispense the drug and instead called the police.
22 On the prosecution case, the respondent had fraudulently altered the second prescription in the same manner as the first in order to obtain repeats of the medication to which she was not entitled.
23 It is apparent from the evidence that the respondent did not actually obtain the items of medication she was seeking to obtain from the subject pharmacy. For this reason, presumably, she was charged in respect of each incident with having 'attempted' to commit an offence contrary to s 409(1)(c) of the Criminal Code; that is, the offence described as 'fraud' in the heading to the provision in question.
24 I note in passing that by s 552(1) of the Criminal Code any person who attempts to commit an indictable offence is guilty of a crime. The term 'attempt' is defined by s 4 of the Criminal Code as follows:
When a person, intending to commit an offence, begins to put his intention into execution by doing an act that is more than merely preparatory to the commission of the offence but does not fulfil his intention to such an extent as to commit the offence, he is said to attempt to commit the offence.
It is immaterial, except so far as regards punishment, whether the offender does all that is necessary on his part for completing the commission of the offence, or whether the complete fulfilment of his intention is prevented by circumstances independent of his will, or whether he desists of his own motion from the further prosecution of his intention.
It is immaterial that by reason of circumstances not known to the offender, it is impossible in fact to commit the offence.
The same facts may constitute one offence and an attempt to commit another offence.
25 As to each of the charges, the prosecution case was that the respondent attempted to commit the offence of gaining a benefit by fraud by adding a number to the prescription form with a view to obtaining a repeat of the drug, although a repeat had not in fact been authorised by the prescribing doctor. It was immaterial that a repeat of the subject drug was not actually paid for by the respondent or handed over by the pharmacist because the respondent's act in adding a number to the form could properly be characterised as something more than merely preparatory to commission of the fraud offence.
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26 I note in passing also that in the course of the hearing before the learned magistrate counsel for the respondent drew the learned magistrate's attention to the element of intent to defraud and the leading Western Australian case of Bolitho v The State of Western Australia (2007) 34 WAR 215; [2007] WASCA 102.
27 Counsel submitted, having regard to discussion in that case, that absent any economic loss to the pharmacist, the prosecution case was based on a bare allegation of deceit and that this was insufficient to prove the essential element of intent to defraud.
28 Counsel for the respondent submitted further that it was not a case involving a public duty because the pharmacist was engaged in a private business.
29 The learned magistrate reserved his decision for a short period.
Reasons for decision
30 The learned magistrate delivered brief reasons for decision on 19 June 2008. His Honour accepted the evidence of the prosecution witnesses and defined the contentious issue to be that of the phrase 'intent to defraud'.
31 His Honour found that the respondent did alter the prescriptions or cause it to be done by another with full knowledge. He found that the prosecution had satisfied all of the elements of the offences save for whether there had been an intent to defraud.
32 In essence, the learned magistrate held that on his reading of Bolitho's case, the matter before him did not involve an economic interest or a public duty and therefore the prosecution had not established the necessary element of intent to defraud.
33 The learned magistrate made these observations towards the end of his reasons for decision:
As to the 'fraudulent means', the fraudulent means was the alteration of the scripts. I find that was certainly done by the accused; she was the one that had the vested interest in doing so. I find that she did do it. Even if she didn't do it, the only other person that had the opportunity to do it and perhaps may have done it would have been her friend Chris, but that would have been done at her request and knowingly with her full knowledge so the fraudulent means was brought about by her. The 'benefit' of course is the drugs to which she was not entitled.
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- As I said earlier, there's no evidence from the accused to challenge the prosecution evidence, which I accept, but in all the circumstances when one reads the Bolitho case it's clearly the case that this matter before me does not involve economic interests and does not involve a public duty and therefore I find that the prosecution have not established the necessary elements of 'intent to defraud' and it must be given some meaning in the context of the statute and accordingly I find that the case has not been made out.
Leave to appeal
34 The appellant sought leave to appeal against the decision made by the learned magistrate; that is, that the accused was not guilty of two charges of attempting to gain a benefit by fraud and that the prosecution was to pay the respondent's costs in the amount of $2,500.
35 The grounds of appeal were expressed as follows:
1. The learned magistrate erred in law when he found that the essential element of intent to defraud in s 409 of the Criminal Code was not made out because the matter before him did not involve an economic interest.
36 Justice McKechnie granted leave to appeal in respect of the ground specified in the appeal notice by an order dated 5 August 2008. The matter was brought on for hearing before me in due course.
37 Put shortly, counsel for the appellant contended that the circumstances of the present case ought to be distinguished from those of Bolitho's case in which the Court of Appeal found that there was no infringement of economic interest.
38 It was said that in the present case, even though there was no actual pecuniary detriment caused to the pharmacist, the drugs sought to be obtained by the respondent were property and did have a pecuniary value. The fact that there was no actual economic loss or detriment to the pharmacist was not determinative of an intent to defraud, nor was the fact that the respondent intended to pay the value of the drugs. There was an intent to deprive the pharmacist or pharmacy of property (which did have a particular economic value), rather than to inflict economic loss. The fact that no actual loss would have been sustained by the owner of the drugs was irrelevant.
39 The appellant sought orders that the decision of the learned magistrate be set aside with an order that the case be dealt with again by the Magistrates Court with suitable directions.
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40 On the other hand, counsel for the respondent relied upon reasoning in the previously decided cases which suggested that to defraud is to deprive by deceit; that is, to induce a person by deceit to act to his injury. The element of injury was absent from the prosecution case in the present matter. Bolitho's case, counsel contended, shows that there must be an actual economic loss or detriment suffered by the complainant before an intention to defraud will arise.
41 Counsel for the respondent relied particularly upon certain observations in Bolitho's case made by McLure J at [152] as follows:
Apart from the public duty category of cases, all the reported cases in which an intent to defraud is an element of an offence involve a situation where the victim has been deprived of something and that thing has actual or potential economic value. Based on the authorities, there will be an intent to defraud if the intent is that the victim (1) suffer economic loss; (2) suffer an economic detriment by being deprived of property, money, services or other things that have an economic value (even if the victim had no intention to exploit that value or received full consideration for the same); (3) be at risk of suffering an economic loss or detriment; (4) be deprived of an opportunity to make an economic gain; (5) be deprived of an opportunity to prevent an economic loss or detriment. At its broadest, the common law expression in this context would encompass actual or potential detriment relating to the economic interests of the victim.
42 Before turning to the respective contentions of the parties, it will be useful to look at certain statutory provisions and principles bearing upon the present appeal and the issues raised by these proceedings. For ease of exposition, I will refer to the observations mentioned a moment ago as Justice McLure's observations.
Statutory provisions and principles
43 By s 14 of the Criminal Appeals Act 2004 (WA) the Supreme Court may dismiss or allow an appeal or set aside or vary the decision or remit the case for rehearing. It is apparent from s 39 of the Act that an appeal court must decide the appeal on the evidence and material that were before the lower court, but this does not prevent consideration of any evidence that the lower court refused to admit.
44 A magistrate is generally required to set out the relevant findings of fact in the reasons for his or her decision. The reasons must disclose adequately the intellectual process which has resulted in a particular determination: Garrett v Nicholson (1999) 21 WAR 226; [1999] WASCA 32. In essence, a court must find sufficient facts upon which to rationally base a decision and expose the reasoning which leads to the ultimate
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- conclusion. The sufficiency of fact finding will vary widely with the exigencies of each case: Skerritt v O'Keefe [1999] WASCA 183 at [146].
45 A finding of guilt is not to be reached simply by rejecting the case put forward by the accused. The court has to positively believe beyond reasonable doubt the evidence presented by the prosecution: Harling v Hall (1997) 94 A Crim R 437.
46 If an error in the reasoning or determination below is exposed on appeal, the court is not necessarily obliged to quash the decision. It seems, however, that unless the court is persuaded that, properly informed, the magistrate would have inevitably have reached the same verdict, the appellate court should provide relief, especially where a finding as to an element of an offence necessarily depends on credibility: Glennon v The Queen (1994) 179 CLR 1.
47 If the appellate court, having made its own independent assessment of both the sufficiency and quality of the evidence, is left with a reasonable doubt, then that is a doubt which the primary court ought to have had and the conviction should be quashed: M v The Queen (1994) 181 CLR 487.
48 I must now turn to decided cases and reasoning bearing upon the elements of the offence in the present case having regard to s 409(1)(c) of the Criminal Code (WA). In doing so, it will be useful to make some preliminary observations.
Preliminary observations
49 It emerges from earlier discussion that in the circumstances of the present case the prosecution alleged that the respondent attempted to infringe s 409(1)(c) because she was a person who, with intent to defraud, by deceit or any fraudulent means attempted to gain a benefit, pecuniary or otherwise, for a person.
50 The learned magistrate accepted the prosecution evidence but held that an essential element of intent to defraud had not been made out, namely, 'this matter before me does not involve economic interests and does not involve a public duty'. His Honour's reliance upon the reasoning in Bolitho's case suggests that in his view, first, the prosecution had failed to establish that the complainant had been deprived of something having an actual or economic value; second, the case did not fall within the public duty or exceptional category of cases mentioned in the observations of McLure J in Bolitho's case.
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51 As to the first matter, I must note immediately, that the term 'intent to defraud' is not defined by the Criminal Code. Moreover, it is notoriously difficult to state exhaustively what is involved in the concept: Peters v The Queen (1998) 192 CLR 493 at [30] per Toohey and Gaudron JJ.
52 I will turn to the decided cases bearing upon the common law meaning of 'intent to defraud' shortly. However, before doing so, I note in passing that the evidence before the learned magistrate indicated that the respondent would have paid for any tablets handed to her by the pharmacist in response to the annotated prescription form. There was no evidence to the contrary. Thus, to my mind, it must be assumed in favour of the respondent that the goods would have been paid for if the transaction had been completed: Balcombe v De Simoni (1972) 126 CLR 576 at 591.
53 The case was argued on this basis before the magistrate and at the hearing of the appeal and I will proceed accordingly. This assumption obviously has a bearing on the question of whether the complainant pharmacist would have been deprived of something having an actual or potential economic value if the events giving rise to charges of attempting to commit offences against s 409(1)(c) had led to the tablets being handed over to the respondent upon payment of the retail price.
54 As to the second matter, it strikes me that the present case might arguably be brought within the public duty or exceptional category of cases in that a pharmacist is not at liberty to supply certain goods and medicines to a customer otherwise than in response to a prescription form. However, the fact is that such a contention was not relied upon by the prosecution at the hearing before the learned magistrate and was not raised as a ground of appeal. Indeed, at the hearing of the appeal, counsel made it quite clear that she did not wish to raise or rely upon this line of argument. Thus, I am of the view that this aspect of the matter is not in issue and I will say no more about it.
55 I must now return to the common law meaning of 'intent to defraud' and the meaning to be given to it in the statutory provision.
Intent to defraud
56 The expression 'intent to defraud' has invariably been taken by the decided cases to relate to interests in property or some right or advantage with respect to property or to the exercise of a public or private duty. Further, having regard to the wide range of offences involving dishonesty, and the need for precision in formulating charges related to statutory
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- provisions, a fundamental distinction has been drawn between the phrases 'intent to deceive' and 'intent to defraud'. Buckley J in Re London & Globe Finance Corporation Ltd (1903) 1 Ch 728 made these observations at [732]:
To deceive is, I apprehend, to induce a man to believe that a thing is true which is false, and which the person practising the deceit knows or believes to be false. To defraud is to deprive by deceit: it is by deceit to induce a man to act to his injury. More tersely it may be put, that to deceive is by falsehood to induce a state of mind; to defraud is by deceit to induce a course of action.
58 At that time the provision was to this effect:
Any person who by any false pretence or by any wilfully false promise or partly by a false pretence and partly by a wilfully false promise, and with intent to defraud, obtains from any other person anything capable of being stolen, or induces any other person to deliver to any person anything capable of being stolen, is guilty of a crime.
59 The High Court held by a majority ruling that the only possible conclusion from the evidence was that the respondent made false pretences with the intention of inducing the householder to part with her money, that he had the intention of depriving her of her money by deceit and he therefore had an intention to defraud. Accordingly, he was rightly convicted.
60 Gibbs J (as a member of the majority) made these observations:
Considering the matter on principle I am of opinion that it is not necessary that an accused person should have intended to use the property for purposes different from those for which the victim of his deceit understood he would use it before he can be held to have had an intent to defraud. What is essential is that he should have intended to obtain the property by means of a deception. To say this is not to fail to give proper weight to the
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- words 'with intent to defraud'. If those words did not appear in the section it would be enough if the accused made a statement which was false to his knowledge and if the person to whom the statement was made was induced to part with property by reason of such false pretence, and it would be immaterial whether the statement was intended to have that effect. What the inclusion of the words 'with intent to defraud' makes necessary is that the accused should have made the false pretence with the intention of inducing another person to part with property. Therefore, if a beggar obtains money by pretending to be blind, and with the intention that the person to whom the pretence is made should be induced by that pretence to give him alms, the offence is committed notwithstanding that the money is used exactly as the person who gave it intended that it should be used, for the relief of the beggar. Similarly, if a man, by pretending to hold a certain position, or to possess certain assets, intentionally induces another to lend him money which he would not otherwise have lent, the former has an intent to defraud, notwithstanding that he intends to use the money for the very purpose for which he says he wants to borrow it. (595)
61 In the South Australian case of R v Kastratovic (1985) 42 SASR 59; (1985) 19 A Crim R 28 the appellant had been convicted of having, with intent to defraud, demanded a sum from a co-director of a company by virtue of a forged guarantee, knowing it was forged. There was evidence that the appellant had a genuine belief that his co-director was indebted to him in the amount in question. He was charged under a provision which materially provided that any person who with intent to defraud, demands any chattel, money, security for money or other property under a forged instrument knowing it to be forged should be guilty of a felony.
62 King CJ made these observations:
The essential notion of defrauding is dishonestly depriving some person of money or property, or depriving him of, or prejudicially affecting him in relation to, some lawful right, interest, opportunity or advantage which he possesses. As Lord Radcliffe pointed out in Welham v. Director of Public Prosecutions , 'although in the nature of things it is almost invariably associated with the obtaining of an advantage for the person who commits the fraud, it is the effect upon the person who is the object of the fraud that ultimately determines its meaning'. The detriment suffered by the person defrauded is usually economic but is not necessarily so. To defraud must involve something more than the mere inducing of a course of action by dishonest means: Welham v. Director of Public Prosecutions , per Lord Radcliffe at p 127. In offences constituted by obtaining money or property with intent to defraud, that something more may be found in the mere parting by the victim of the fraud with money or property which he is entitled to retain and which he would not have parted with but for the use of the dishonest means: Balcombe v. De Simoni. In other cases, the defrauding may consist of deceiving a person responsible for a public duty into doing something that he would not have done but for the deceit, or not
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- doing something that but for it he would have done. In all cases, the element of intent to defraud connotes the intention to produce a consequence which is in some sense detrimental to a lawful right, interest, opportunity or advantage of the person to be defrauded, and is an intention distinct from and additional to the intention to use the forbidden means. (62)
Amendments to the statutory provision
63 It is immediately obvious from these cases that the crucial words take colour from their statutory context. This brings me to amendments to the Criminal Code made in 1990 by the Criminal Law Amendment Act 1990 (WA) (No 101 of 1990) concerning s 409 of the Criminal Code. Section 409 in its present form differs significantly from the nature of that provision when it was under consideration by the High Court in Balcombe v De Simoni.
64 The new s 409 enacted in 1990 replaced the former offences in s 409 (obtaining property or credit by false pretences), s 410 (obtaining the execution of a security by false pretences), s 411 (cheating) and s 413 (frauds on the sale or mortgage of property). All these former offences related to property in one form or another.
65 The amendments were based on recommendations by Mr M Murray (as he then was) in his report 'The Criminal Code: A General Review (1983). The report recommended that s 409 to s 411 and s 413 be repealed and re-enacted as s 409 as a general fraud offence based on the Theft Act 1968 (UK), but wider.
66 It was against this background that Bolitho's case fell to be decided. In that case, the appellant posed as a medical practitioner and in the course of doing so gave some injections to the complainant. The appellant was charged with two counts of fraud contrary to s 409(1)(e) of the Criminal Code. The prosecution case at trial was that the appellant intended to defraud the complainant by obtaining her consent to receive gratuitous medical treatment.
67 The appellant's conviction was set aside by the Court of Appeal on the basis that there are no cases where an intent to defraud relates to interference with the person or the gratuitous receipt of services by the victim. To the contrary, the meaning of intent to defraud at common law does not extend beyond matters relating to the economic interests, public duty and perhaps private reputation and personal status of the victim.
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68 Bolitho's case raised various questions of statutory interpretation which led inevitably to a consideration of the structure of s 409 of the Criminal Code, having regard to the amendments mentioned earlier.
69 It is immediately obvious that the phrase 'intent to defraud' forms part of the prefatory words in s 409(1) of the Criminal Code. The phrase precedes and bears upon a number of more specific provisions which may give rise to discrete offences such as gaining a benefit, pecuniary or otherwise, for any person (s 409(1)(c)), or causing a detriment, pecuniary or otherwise, to any person (s 409(1)(d)), or (as in Bolitho's case) inducing a person to do any act that the person is lawfully entitled to abstain from doing (s 409(1)(e).
70 In dealing with the relationship between the general concept and the more specific provisions it might well be thought that the common law meaning of 'intent to defraud' was modified to some extent by the presence of the more specific provisions.
71 In other words, if the notion that the victim has been deprived of something is thought to be inherent in the general concept it might then, at a first glance, seem incongruous that the more specific provisions go on to distinguish between various forms of intent to defraud, only one of which refers expressly to deprivation or the causing of a detriment (s 409(1)(d)), and with another provision referring not to deprivation but simply to the gaining of a benefit by the offender (being the provision under notice in the present case: s 409(1)(c)).
72 Further, the ambit of subparas (e) and (f) might arguably be regarded as wider than applying only to private or public duty fraud, which in turn suggests that the legislative intent was to broaden the coverage of existing offences.
73 This view is reflected in the observations made by Roberts-Smith J in Bolitho's case in the course of a dissenting judgment. However, in the end, I consider that I am bound by the authority of a higher court to apply the view of the majority in Bolitho's case as to the relationship of the general concept to the more specific provisions.
74 Justice McLure's observations in Bolitho's case were supplemented by these further observations concerning the relationship of the general concept to the more specific provisions:
As to s 409(1) of the Criminal Code, the prosecution must prove one of the consequences listed in pars (a) to (f) and in addition that the appellant had
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- an intent to defraud and that the consequence was brought about by deceit or fraudulent means. However, in view of the Parliamentary intention that the common law meaning of 'intent to defraud' shall apply, it cannot be contended that the width of the matters in pars (a) to (f) alter or enlarge the common law meaning of the expression. To the contrary, the mental element of intent to defraud has the effect of confining the scope of the offence in s 409. In particular, the expression intent to defraud in that section means something more than merely inducing a person to do (or abstain from doing) any act that the person is lawfully entitled to abstain from doing (or is lawfully entitled to do) by deceit or fraudulent means. The defendant must have the intention of inducing an act or omission relating to the victim's economic interests or public duty. [154]
75 Justice Buss made these observations in Bolitho's case:
I agree with McLure JA that paras (a) - (f) of s 409(1) do not alter or enlarge the meaning of 'intent to defraud' at common law. Also, I agree with her Honour that the concept of 'intent to defraud' in s 409(1) confines the scope of the offence which the subsection creates. In other words, paras (a) - (f) of s 409(1) must be construed and applied in the context of the content and ambit of the common law meaning of 'intent to defraud'. [170]
76 The observations of McLure J and Buss J, as the majority in Bolitho's case, established that in s 409 of the Criminal Code the common law meaning of the expression 'intent to defraud' continues to apply. This has the effect of confining the scope of the more specific provisions with the result that the accused person must have the intention of inducing an act or omission relating to the victim's economic interests or public duty.
77 However, I must keep in mind that the ruling in Bolitho's case concerned s 409(1)(e) of the Criminal Code (that is, inducing any person to do any act that the person is lawfully entitled to abstain from doing) and the decision of the Court of Appeal cannot therefore be regarded as directly applicable to the charges in the present case that were brought pursuant to s 409(1)(c) of the Criminal Code (concerning an alleged attempt to gain a benefit).
78 Let me now return to the circumstances of the present case and address the issues.
The issues
79 It is not entirely clear from the learned magistrate's reasons what he meant by his assertion in the course of acquitting the respondent 'that the matter before me does not involve economic interests and does not involve a public duty'.
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80 If his Honour concluded that economic interests were not affected simply because no goods were actually handed over and the transaction was not completed then, in my view, he erred, subject only to resolution of the economic detriment issue that I will come to shortly. I say that because the charges before him concerned two attempts to commit offences against s 409(1)(c) of the Criminal Code and there was sufficient evidence to enable the court to infer that the respondent sought to obtain the tablets by fraudulent means pursuant to an altered prescription form in exchange for the price.
81 I mention this interpretation of his remarks because, perhaps understandably having regard to the submissions placed before him that focused on the economic detriment issue, his Honour did not refer explicitly in the final phase of his reasons to the fact that the charges concerned attempts, not completed offences.
82 On the other hand, if in the course of purporting to apply the reasoning in Bolitho's case to the matter before him, his Honour was of the view that the present case could be equated to the circumstances in Bolitho as involving the provision of a service by the pharmacist, or by simply inducing him to act in a certain way, I would be of the view also that the magistrate erred in characterising the matter in that way. The subject matter of the proposed transaction were items of property, namely, the tablets, and thus it would be open to the court to infer from the evidence that if an attempt were made to deprive the pharmacist of certain goods by false representations and without the price being paid, then it could certainly be held that the pharmacist's economic interests were involved and the respondent stood to gain a benefit; that is, the pharmacist would have been deprived of goods having a certain value.
83 However, as I have indicated in earlier discussion, his Honour seems to have been saying, in effect, that economic interests were not involved because even if the attempts to obtain the goods had succeeded and tablets were sold to the respondent pursuant to a false representation, an intent to defraud had not been established because the pharmacist's economic interests were not involved or affected; that is, having regard to Justice McLure's observations in Bolitho's case, in circumstances where the price was received (or likely to be received) the victim had not suffered an economic loss or detriment.
84 It was pursuant to this latter interpretation of his Honour's reasons that the matter was argued before me. It was upon this basis also that in the ground of appeal it is said that the learned magistrate erred when he
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- found that the essential element of intent to defraud was not made out because the matter before him did not involve an economic interest.
85 For ease of reference, I will call this the 'economic detriment issue'.
The economic detriment issue
86 It is apparent from Justice McLure's observations that an intent to defraud can be found where the victim has been deprived of something and that thing has an actual or potential economic value. To my mind, tablets available for sale at a retail price, as in the present case, are property of that kind.
87 It might be said that the pharmacist has not suffered an economic loss if the price is paid (or would have been paid, being an assumed fact in the present case). However, her Honour goes on to say, more specifically (her second proposition) that there will be an intent to defraud if the intent is that the victim suffer an economic detriment by being deprived of property, money, services or other things that have an economic value (even if the victim had no intention to exploit that value or receive full consideration for the same).
88 Her Honour went on to note in her further observations that it is not enough merely to induce a person to do an act that the person is lawfully entitled to abstain from doing by deceit or fraudulent means. The accused person must have the intention of inducing an act relating to the victim's economic interests.
89 To my mind, this reasoning establishes that if the pharmacist is induced by deceit to do an act that he might not otherwise have done, namely, the handing over of tablets, being property belonging to him, and the act involves property with an economic value then this can be characterised as an intent to defraud, even if full consideration for the property in question is received (or is likely to be received in the case of an attempt).
90 This conclusion is re-inforced by the observations of King CJ in Kastratovic's case mentioned earlier where it was said that the essential nature of defrauding is dishonestly depriving some person of property. The defrauding may be found in the mere parting by the victim of the fraud with property which he is entitled to retain and which he would not have parted with but for the use of dishonest means.
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91 These observations are applicable to the circumstances of the present case. The evidence permits an inference to be drawn that the pharmacist, who was not obliged to sell the tablets to a customer who asked for them, would simply not have sold them to the respondent, even in exchange for the correct price, if he found out or had reason to believe that she did not have an authorised prescription. The attempt, if successful, would have caused the pharmacist to part with property having an economic value that would otherwise have been retained.
92 Chief Justice King was of the view that it is the effect upon the person who is the object of the fraud that ultimately determines the meaning of the crucial concept. He supported his reasoning by reference to Balcombe v De Simoni's case. The reasoning of Gibbs J (as he then was) in that case is to much the same effect, namely, what is essential is that the accused person should have intended to obtain property by means of a deception; that is, to obtain property that would not otherwise have been obtained. His Honour went on to say that the accused person must have made the false representation with the intention of inducing another person to part with the subject property.
93 In the course of argument at the hearing I endeavoured to illustrate the nature of the reasoning in this way. An elderly man might have a vase that has been in the family for many years and is regarded as an heirloom. If a stranger arrives, and by falsely representing himself to be a long lost member of the family, induces the proprietor to sell the vase to him at whatever is determined by an arbitrator to be the fair market value of the item, his deception would surely be said to have involved an intent to defraud, even though he paid the price fairly determined (so that it might be said, on one view of the matter, that the original proprietor had not suffered any economic detriment). In my view, in such a case the intent to defraud arises from the fact that the proprietor has been induced to part with property that would not otherwise have been obtained but for the deception.
94 This view of the matter is confirmed by s 409(3) of the Criminal Code. By that provision it is immaterial that the accused person intended to give value for the property obtained or delivered, or the benefit gained, or the detriment caused.
Conclusion
95 It follows from these observations that, in my view, having regard to the reasoning in Bolitho's case and related cases, the learned magistrate
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- erred in the manner described in the ground of appeal with the result that the appeal must be allowed.
96 The decision of the magistrate will be set aside and the matter will be remitted to the Magistrates Court to be relisted for hearing in accordance with these reasons. I will hear from the parties as to the precise form of the orders to be made.
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