Corruption and Crime Commission of Western Australia v Moodie - [2009] WASC 72

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: CORRUPTION AND CRIME COMMISSION OF WESTERN AUSTRALIA -v- MOODIE [2009] WASC 72

CORAM: HASLUCK J

HEARD: 12 DECEMBER 2008

DELIVERED : 25 MARCH 2009

FILE NO/S: SJA 1081 of 2008

BETWEEN: CORRUPTION AND CRIME COMMISSION OF WESTERN AUSTRALIA
Appellant
AND
MICHAEL HARRIS MOODIE
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE R K BLACK
File No  :PE 58407 of 2006 to PE 58506 of 2006

Catchwords:

Appeal against acquittal by magistrate - Legislation regarding offences of forgery and uttering - Elements of intention to defraud - Whether deflection of a public officer from the performance of his or her public duty sufficient to establish intent to defraud - Invoices created to obtain reimbursement for travel and related expenses - Whether in a public duty case at the time of creation and utilising the fictitious invoices there was an intention to prevent or deflect employer from performing its duty to properly assess the claim for reimbursement - Whether there was sufficient evidence before the magistrate to infer that the respondent intended to defraud the department - Magistrate held to have erred in treating cases dealing with persons performing public duties as a special category of intent to defraud - Appeal against acquittal allowed and matter to be remitted

Legislation:

Criminal Appeals Act 2004 (WA), s 14, s 39
Criminal Code (WA), s 409(1)(a), s 409(1)(e), s 409(3), s 473(1)
Criminal Law Amendment Act 1990 (WA), s 24
Evidence Act 1906 (WA), s 29
Theft Act 1968 (UK)

Result:

Appeal allowed
Matter remitted to Magistrates Court

Category: A

Representation:

Counsel:

Appellant: Mr B E F Tooker
Respondent: Ms A G Braddock SC & Mr P A Tottle

Solicitors:

Appellant: Corruption and Crime Commission of Western Australia
Respondent: Tottle Partners

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
Davern v Messel (1984) 155 CLR 21
Devries v Australian National Railways Commission (1993) 177 CLR 472
Garrett v Nicholson (1999) 21 WAR 226; [1999] WASCA 32
Meyers v The Queen (1997) 147 ALR 440; [1997] HCA 43
R v Carroll [2002] HCA 55; (2002) 213 CLR 635
R v Horsington [1983] 2 NSWLR 72
R v Kastratovic (1985) 42 SASR 59; (1985) 19 A Crim R 28
R v Margaria [2003] WASCA 253
R v Turner (No 4) [2001] TASSC 51
R v Turner (No 7) (2001) 10 Tas R 219
Re London and Globe Finance Corporation Ltd [1903] 1 Ch 728
Royall v The Queen (1991) 172 CLR 378
Ryan v The Queen (1967) 121 CLR 205
Taylor v The Queen [1997] TASSC 5; (1997) 6 Tas R 310 (19 February 1997)
Verhoeven v Ninyette (1998) 101 A Crim R 24
Vrisakis v Australian Securities Commission (1993) 9 WAR 395
Wai Yu‑Tsang v The Queen [1992] 1 AC 269
Welham v Director of Public Prosecutions [1961] AC 103

HASLUCK J:

Introduction

The respondent, Michael Moodie, was charged with 50 counts of forging a record and 50 counts of uttering each of those forged records, each charge being brought pursuant to s 473(1) of the Criminal Code ('the Code').
The nature of the charges can be illustrated by reference to the prosecution notice dated 20 October 2006 in which it is alleged in Item 1 of the attachments that the respondent on or about 21 September 2004 at Busselton with intent to defraud forged a record, namely, a tax invoice headed 'Wittenoom Apartments' with invoice number 00014 contrary to s 473(1)(a) of the Code.
Item 2 is to the effect that the respondent on or about 21 September 2004 at Busselton with intent to defraud uttered a forged record, namely, a tax invoice headed 'Wittenoom Apartments' with invoice number 00014 contrary to s 473(1)(b) of the Code.
The charges as a whole are alleged to have occurred between on or about 21 September 2004 and on or about 30 July 2005. Records said to have been forged relate to 50 separate records, the first of which is dated 20 April 2004 and the last of which is dated 30 June 2005.
The respondent was acquitted of the various charges brought against him. This has led to an appeal being instituted by the prosecutor named in the prosecution notice, Trevor Wynn, although essentially the appellant is the Corruption and Crime Commission. I will return to that aspect of the matter later.
It will now be useful to look at the statutory provision mentioned in the prosecution notice and certain related provisions.

Statutory provisions

Section 473 of the Criminal Code relevantly reads as follows:
(1)Any person who with intent to defraud:
(a)forges a record; or
(b)utters a forged record,
is guilty of a crime …
Section 1 of the Code defines the term 'forge' and also what is meant by 'utter'. The relevant provisions read as follows:
The term 'forge' in relation to a record means to make, alter or deal with the record so that the whole of it or a material part of it -
(a)purports to be what in fact it is not;
(b)purports to be made by a person who did not make it; or
(c)purports to be made by authority of a person who did not give that authority. …
The term 'utter' in relation to a forged record means use or deal with the record knowing that the record is forged.
Section 29 of the Evidence Act 1906 (WA) has a bearing upon the matters in issue also. It is to this effect:
On the trial of a person charged with an offence of which any intent to … defraud … is an element, it shall not be necessary to prove an intent to … defraud any particular person.
I note in passing that the offences of forging and uttering fall within ch XLIX of the Code. The phrase 'with intent to defraud' is to be found also in s 409 of the Code which falls within ch XL concerning fraud. Many of the decided cases bearing upon the meaning of the crucial phrase arise in the context of an allegation of fraud, although it is important to keep in mind that s 409 in its present form differs significantly from the nature of that provision when it was under consideration by the courts in earlier cases such as Balcombe v De Simoni (1972) 126 CLR 576.
The new s 409 enacted by the Criminal Law Amendment Act 1990 (WA) replaced various former offences, namely, s 409 (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.
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.
The nature of the amendments can be illustrated by looking at different forms of the offence of fraud now covered by the new s 409 of the Code. Section 409(1)(a) provides that any person who, with intent to defraud, by deceit or any fraudulent means obtains property from any person is guilty of a crime. By s 409(1)(e) (being the provision under notice in the recently decided case of Bolitho v The State of Western Australia (2007) 34 WAR 215; [2007] WASCA 102) any person who, with intent to defraud, by deceit or any fraudulent means induces any person to do any act that the person is lawfully entitled to abstain from doing is guilty of a crime. In both of these examples, by s 409(3), 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.

The nature of the prosecution case

It will be apparent from this overview of the statutory provisions that the differentiation between offences against property and contracts (to use the language of pt VI of the Code within which ch XL (fraud) and ch XLIX (forging and uttering) both fall) must be examined with care. This brings me to the nature of the prosecution case underlying the subject charges.
The appellant's submissions at pars 34 to 36 set out the manner in which the prosecution case was presented at the hearing before the learned magistrate.
These submissions read as follows:
34.The prosecutor opened the case on the issue of intent to defraud in the following terms (Trial Transcript 28/11/07 p 15).
With respect to this element of each of these offences it is the prosecution's case Mr Moodie intended to deceive employees of the South-West Area Health Service by making them think that the tax invoices he submitted were legitimate so that they would approve his claims for accommodation expenses. In other words, he intended to make his tax invoices look legitimate so that they would do something that it was their public duty not to do and that is approve the claims.
35.In his closing submissions the prosecutor reiterated and elaborated on what he had said in opening (Trial Transcript 26/5/08 pp 40‑42, 55, 56, 57). His argument was perhaps most succinctly stated in the following passage (Trial Transcript 26/5/08 p 42):
Essentially what I am saying is this is not a case involving private interests. It is a case involving public money, and in our submission Mr Moodie intended to deprive officers of the department the opportunity to protect the department's interests, and thereby committed the offence.
36.Thus, it was consistently the prosecution's case that the Respondent had deprived employees of the South West Area Health Service of the opportunity to protect the Department's financial interests by preventing them from performing their public duty.

Background

It appears from evidence given at the hearing, and from the summary of that evidence provided by the learned magistrate in his reasons for decision, that in 2001 the respondent was appointed as the Chief Executive Officer of the South West Health Service ('the SWHS') The appointment was formalised or extended from 1 February 2004 for a period of five years.
The arrangements in question were evidenced by a contract dated 11 December 2003 between the Minister for Health and the respondent. A covering letter from the Director General of the Department of Health dated 11 December 2003 and the contract in question included provisions in relation to work related expenses incurred by the respondent.
More particularly, the letter provided that 'work related travel expenses will be reimbursed in accordance with the provisions of the SAT and excess expenses may also be paid'. Clause 8 of the contract contained the following provision concerning work related expenses:
(a)The employee will be reimbursed for such approved expenses as are reasonably incurred in the performance of the employee's duties.
(b)The employee will be reimbursed for reasonable home office expenses including the full cost of telephone rental and telephone calls made on official business at the employee's private residence.
(c)Costs of work‑related travel will be reimbursed up to the travel allowances amount applicable to public service officers employed under the salaries and allowances tribunal. If the employing authority is satisfied on production of receipts that reimbursement in accordance with allowance amount does not cover the employee's reasonable expenses for the whole trip the employee shall be reimbursed the excess expenses.
The respondent's office was in Busselton. He was required as part of his duties to travel from his home in the south west of the State to Perth on a regular basis. Initially when required to travel to Perth and stay overnight he stayed at hotels or serviced apartments. Payments in respect of the cost of this type of accommodation were apparently met directly by his office or by way of the use of a corporate credit card.
On at least one occasion in February 2004 the respondent stayed at accommodation other than a hotel. A claim in relation to February 2004 travel was prepared on the respondent's behalf by Mr Peter Duncan who was an employee of SWHS at the time, being an accountant. Duncan had been requested by the respondent's personal assistant, Ms Good, to assist in this regard and had done so. Indeed, Duncan completed a claim for payment of accommodation and incidental expenses for two nights in February 2004, initialled the same as claimant, and also signed the same as an incurring officer, pursuant to the then existing Treasurer's instructions. At the time of the respondent asking Ms Good to deal with this claim he also asked her to discuss questions of travel allowances with him. Ms Good asked Duncan to deal with this.
By residential property lease dated 26 March 2004 the respondent and his wife became tenants of a property at 5/28 Wittenoom Street, East Perth. Thereafter on trips to Perth requiring an overnight stay the respondent stayed at these premises in lieu of staying in hotels or serviced apartments. The son of the respondent also apparently resided at those premises.
On 10 May 2004 Duncan prepared a memo relating to travel and accommodation claims and forwarded the same to the respondent. At that time no further claim for travel and accommodation had been made by the respondent subsequent to the claim in February 2004. The memo sets out a number of examples of what Duncan believed the respondent may have been entitled to in relation to a claim for reimbursement of expenses for staying other than at a hotel or serviced apartment.
I note in passing that the magistrate made a finding of fact that at the time of preparing this document Duncan was aware that the respondent had leased premises in Perth where he stayed when being required to travel to Perth and stay overnight in order to carry out his duties. The magistrate held also that there was no evidence before him, other than this memo and a letter dated 28 June 2005 from the Acting Director General of the Health Department, Dr Neil Fong, setting out what the respondent was entitled to by way of reimbursement. In particular there was no evidence before him as to what is the 'travel allowance amount applicable to public service officers employed under the Salaries and Allowances Tribunal' as provided for in the contract of employment or any document setting out any 'provisions of the SAT' as referred to in the 28 June letter.
During August/September 2004 the respondent arranged for the preparation on his behalf of a series of documents purporting to be tax invoices for accommodation for himself at Wittenoom Apartments at 5/28 Wittenoom Street, East Perth. These documents purported to show a date of arrival and departure, the number of guests, the room rate, an invoice number and the payment of an amount in cash for accommodation for the period each invoice purported to relate to. In each instance the amount said to be paid is the total of $99.
On or about 17 September 2004 the respondent arranged for the delivery of a bundle of these purported tax invoices for the periods April, May and June 2004, to Duncan for the purpose of Duncan arranging for the payment of the amounts claimed. Apparently Duncan prepared whatever documents were necessary, placed the appropriate costing code in respect of each part of each claim on those documents and arranged for the delivery of the claim in total to the department responsible for making payment, which at that time was situated in Bunbury. The total of the amount claimed for reimbursement of the claims for travel and accommodation and other matters was paid to the respondent in due course.
Claims of travel, accommodation and meals were made by the respondent on the same basis through to April 2005. Each of the claims were subsequently paid to the respondent.
On 17 May 2005 the respondent, in his own name, leased other premises at 127B Caledonia Avenue, Maylands. He had, or was about to, vacate the premises in Wittenoom Street, East Perth. On entering into possession of the Caledonia Avenue premises the respondent commenced to stay there in lieu of the East Perth premises. He then arranged to have prepared on his behalf a document, again purporting to be a tax invoice, relating to Maylands Bed and Breakfast at 127 Caledonia Avenue, Maylands. This purported tax invoice had an invoice number, set out the number of nights accommodation, the amount to be charged and that the subject amount, inclusive of GST had been paid by way of cash. The amount set out as being paid was $99.
The purported tax invoices for each of the premises did not have an ABN number. The address shown as the address of Wittenoom Apartments and Maylands Bed and Breakfast was different to the address of the properties leased by the respondent both in East Perth and Maylands.
For the month of May 2005 the respondent, in the same manner as before, arranged for the delivery of a claim, including the purported tax invoices, to Duncan. Duncan dealt with that claim in the same manner as he had for the claims for the preceding months. The claim for accommodation in May included purported tax invoices both for Wittenoom Apartments and Maylands Bed and Breakfast.
Again for the month of June 2005 the respondent made claims as he had previously, being all in relation to Maylands Bed and Breakfast. This claim was dealt with in the same manner as previous claims and was eventually paid to the respondent. It was delivered to Duncan at some time after 8 July but before 30 July 2005.
In or prior to November 2004 the respondent became aware of a payment being made to another employee of the Health Department whereby a specific amount was apparently payable to that person in lieu of that person making claims for travel and accommodation. As a result there were discussions between the respondent and Duncan to see if this type of arrangement could be put in place for the respondent. By memo dated 17 November 2004 Duncan eventually advised that this process did not apply to the respondent, and asked whether the respondent wished to approach the Director General in relation to any allowance in respect of travel and accommodation.
By a document dated 30 May 2005 a memo was prepared on behalf of the respondent seeking a rental subsidy of $150 per week in lieu of making claims for reimbursement of accommodation expenses in Perth. By letter dated 28 June 2005 (being the letter mentioned earlier) Dr Fong advised that, having sought advice from within and outside the Department of Health, he was 'unable to approve your request for rental subsidy'. He went on to say that 'as much as it may seem administratively burdensome, the only option available is to reimburse you in accordance with the relevant industrial agreement at the rate of $75.75 per day for every day you are required to attend meetings in Perth'.
Subsequent to becoming aware of the 28 June Fong letter, the respondent made claims for the month of June, previously referred to, on the same basis as he had previously. Thereafter, so it appeared to the learned magistrate, there being no evidence to the contrary, the respondent made claims in accordance with the advice of the Acting Director General of the Department of Health.
It will now be useful to look at certain facets of the evidence adduced at the hearing in more detail.

Certain facets of the evidence

It appears from the preceding outline of evidence given at the hearing that Mr Duncan was involved in processing the respondent's claims.
Mr Duncan said in evidence that as Manager of Performance for the SWHS he was in a 'management accounting role'. He said that his role in relation to the travel related claims was that they were given to him, he allocated the various cost codes, then passed them on to finance for their approval and payment. He gave evidence as to the manner in which the respondent submitted claims for reimbursement initially. He was referred to an email dated 24 February 2005 in which the respondent spoke of having claimed $99 overnight accommodation 'for staying at our place in Perth' and having 'leased accommodation in Perth at my own expense'. He referred to receiving invoices for Wittenoom Apartments after the email and passing them on to finance for payment. He said that he 'didn't like to challenge him' (ts 28).

Under cross‑examination Mr Duncan acknowledged that he gave assistance to the respondent as to various matters to do with his personal salary and employment conditions. He acknowledged that when he received invoices from the respondent he knew that the respondent's claims related to staying at his place in Perth. Mr Duncan said:
Maybe in my mind I didn't want to make much of it because I felt uncomfortable. (ts 48)
I treated them as an invoice on their merit. (ts 51)
The cross‑examiner then initiated these exchanges:
What I am suggesting to you is that you said that the award would lead to a figure of 109 and, effectively, he told you he was going to claim $99 for the night and would put together a document, an invoice, for each stay?---Excuse me (indistinct) invoice.
Well, I am suggesting to you that he told you that he would prepare an invoice?---I can't accept that.
And you said that would be okay?---I can't accept that. (ts 62)
At a later stage the cross‑examiner explored certain alleged inconsistencies in the evidence being given by Mr Duncan. This exchange occurred:
Good. If you are correct you are, effectively, saying that you thought these invoices for Wittenoom Street and Maylands were genuine invoices but you knew that Mr Moodie was staying at the premises he had leased in Perth?---Okay.
You are saying both of those things; because they cannot both be right, Mr Duncan. No at the same time they cannot, can they?---One would not, no. (ts 65).
This summary of certain facets of the evidence given by Mr Duncan will serve to explain the magistrate's finding mentioned earlier that Mr Duncan was aware that the respondent had leased premises in Perth. However, to my mind the Duncan evidence, taken as a whole, leaves open the question of whether Mr Duncan personally proposed or approved an arrangement whereby fictitious invoices would be created and used by the respondent as an acceptable vehicle for obtaining reimbursement. It appears from the Duncan evidence that he viewed the respondent as superior to him in the administrative hierarchy and was not minded to challenge him. The Duncan evidence leaves open the question also as to whether Mr Duncan's approval of the invoices was bound to be decisive. In that regard when Doris Lee was asked whether she would have signed the invoices bearing her signature as incurring officer if she had known the documents were false she said that she would not have done so (ts 18).
The reasoning behind the creation and submission of the invoices is to be found essentially in the evidence given by the respondent. These exchanges occurred at the commencement of his cross‑examination:
Mr Moodie, whose idea was it to use these invoices (indistinct)?---Whose original suggestion?
Yes. Whose idea was it?---It was my idea.
Yes. That's right, isn't it? Who signed the invoices?---I did.
Who caused them to be delivered to Peter Duncan?---I did.
You just told us in your evidence you used these invoices, Wittenoom Apartments and Maylands Bed and Breakfast, to look like an invoice. Is that right?---Yes.
Yes. You wanted it to look like an invoice so that you would get paid on that invoice. Is that right?---Yes.
Is it your evidence that Peter Duncan knew all about this? Is that it?---Yes. (ts 57)
A little later some further exchanges occurred as follows:
On each occasion that you submitted and - signed and submitted an invoice for Wittenoom Apartments you in fact stayed at your own place in Wittenoom Street. Right?---Yes.
When you stayed at your apartment in Wittenoom Street, you didn't incur an expense of $99, did you?---No.
There was no GST that you paid?---No.
No $90 net amount?---No.
You didn't pay any cash to anyone did you?---No.
Whose idea was it to call it a tax invoice?---It was my idea.
Again, did you tell your wife Jane that it had to be headed tax invoice?---I mentioned tax invoice to Jane.
Why did it have to read tax invoice?---Because that's what I discussed with Peter. (ts 64)
The respondent was also cross‑examined about whether he thought Mr Duncan would be the only person to deal with the claims. He responded as follows:
As you saying that you thought that Peter Duncan would be the only person to deal with your travel claims in 2004 and 2005?---I would have knowledge that there would be other people involved, but specifically who they were and what their roles were, no.
Those other people involved, you would have known that they would be people in the finance area, right?---(indistinct)
It's not going to be the person out in the maintenance shed, is it?---No. (ts 93)
There were then some further exchanges with the cross‑examiner concerning the form of the invoices in these terms:
No, because you had done a good job at making these tax invoices look legitimate, hadn't you?---No, because Peter was aware of what they were (indistinct) he was - I was giving him, so I understood what I was required to do, all of my receipts and invoices in an envelope to him. I gave them to him. He processed them, approved them, put them through the finance system and I was (indistinct)
So on your evidence, you and Peter were working together, is that right?---My evidence is I went to Peter and asked him what was the appropriate way to make these claims. He gave me the advice and I made the claims and at no point did he come back to me and say there was a problem.
I want to suggest to you, Mr Moodie, that it was your idea to do up these tax invoices and that's right, isn't it?---Yes, that was the purpose. That was my idea, yes. (ts 94)
The various exchanges arguably leave an impression that Mr Duncan was an active participant in the creation and submission of invoices as a means of overcoming inconvenient administrative arrangements that were troubling the respondent. However, as I observed in earlier discussion, the evidence given by Mr Duncan himself does not appear to go that far. Thus, the respondent's references to the false invoices being a matter under discussion between the two men must be viewed with caution. However, it is significant that the respondent was prepared to acknowledge that the invoices were false, that the idea underlying their creation was his and that they might be viewed by others in the processing system apart from Mr Duncan.
It will now be convenient to turn to the magistrate's reasons for decision.

Reasons for decision

The learned magistrate delivered his reasons for decision on 28 August 2008. Having set out the background facts, and after noting that most of the facts were not disputed, his Honour made various observations about the evidence and the issues before him.
His Honour began by saying this:
Given the above evidence, it is abundantly clear that the accused has prepared, or caused to be prepared on his behalf, fifty purported tax invoices in the name of either Wittenoom Apartments or Maylands Bed and Breakfast, that are false. Clearly, to have acted in this manner is to forge a record within the meaning of the word 'forge' as defined in s 1 of the Code. Equally clearly, to deal with those forged records by passing them to, or causing them to be passed to, Duncan for the purpose of a claim for reimbursement being made is to 'utter' those records within the meaning of that term in s 1 of the Code. Indeed, at the commencement of proceedings, the accused through his counsel, admitted that he had signed each of the purported tax invoices the subject of forgery charges and that he delivered or caused to be delivered, each of those purported tax invoices to Duncan. At the outset of proceedings the issue in relation to these matters was identified by counsel as being whether or not there was an intent to defraud by the accused in relation to each and every one of the charges. It was said in opening that this was not the only issue. In closing submissions it would appear however that that really is the only issue. That is whether or not on the evidence the prosecution has proved to the necessary degree, beyond reasonable doubt, that the accused in forging the purported tax invoices and then in uttering those tax invoices by delivering or causing to have them delivered to Duncan, an employee of SWHS, had, in each instance, an intent to defraud. (9)
Having identified the issue to be decided, his Honour reviewed the evidence given by various witnesses. For present purposes, it is not necessary to review the evidence in detail or refer to all of his Honour's observations.
His Honour noted that an 'incurring officer' is an officer who, pursuant to instructions of the Treasurer, apparently made under the provisions of the Financial Administration and Audit Act 1985 (WA), is required to certify the payment of an account or a claim, upon being satisfied of a range of matters, including that a claim is correct in all respects. Duncan denied during the course of his evidence that he was the incurring officer in relation to the claims. However, evidence of other witnesses contradicted the evidence of Duncan in that regard.
His Honour noted also that on the face of the purported tax invoices they were not proper and correct tax invoices as the evidence was that to be a tax invoice the ABN number of the supplier of the services is required to be shown thereon. Duncan conceded that none of the purported tax invoices had any ABN number. His Honour said this:
Clearly even on this basis the accounts could not be certified as being correct. Observing the manner in which Duncan gave his evidence and taking into account the matters just referred to, along with other matters, in my view the evidence of Duncan is not evidence that can be relied upon in any way. In my view Duncan was well aware at all material times that the claims were based upon documents that were false. (11)
His Honour referred also to evidence given by Ms Doris Lee, Ms Caroline Talbot and Mr Alan James who were employed in the Finance Department of the SWHS and who had signed at least some of the claims made by the respondent as either incurring officer or certifying officer. A certifying officer on the evidence checked claims after an incurring officer had certified them as correct to double check that the claims were correct and properly made and to ensure that funds were available to pay them. Each of these officers gave evidence that in their view the incurring officer was Duncan. They relied upon him to make sure that the claims were correct and proper. As a result of that they did no independent check of the matters that an incurring officer or certifying officer is supposed to do to ensure that the claim was correct.
His Honour referred also to evidence given by the respondent. The latter's belief was that, on the basis of advice from Duncan, he was entitled to an amount greater than the sum of $99 that was claimed by him on the occasions he stayed overnight in Perth. However, so as to ensure that he claimed no more than he was entitled to he claimed $99 each time he stayed overnight in Perth. The respondent said in evidence that Duncan was aware that the respondent was staying at the premises he leased in Perth and that he prepared the invoice simply for the purpose of keeping a record of the times. Prior to that, the respondent had simply written on a piece or sheet of paper the times he had been in Perth overnight.
Under cross‑examination, the respondent asserted that preparation of the false tax invoices came about as the result of discussions he had had with Duncan. He reiterated that the invoices were in the form that they were simply for the purpose of maintaining appropriate records. He acknowledged that the decision to prepare or cause to be prepared the false tax invoices was his.
His Honour then reviewed the law bearing upon the matters in issue before him. I will touch upon some of the decisions reflected in his judgment at a later stage. However, importantly for present purposes, his Honour made these observations towards the end of his review of the decided cases:
Taking into account what has been said in the authorities generally, and in particular those referred to previously, my understanding of the law is that an intent to defraud requires more than an act of dishonesty. In addition to such an act there must be evidence establishing that the person acting dishonestly had an intent to either -
1.deprive another of money or property or prejudicially affect that other in respect of some lawful right, interest, opportunity or advantage; or
2.cause another who has a public duty to exercise or not exercise that duty or to exercise that duty in a manner not in accordance with the requirements of that duty.
In either of the above situations if the person acting dishonestly has an honest belief that he or she has an entitlement to or in fact is entitled to money or property the subject of the dishonest act or claim then there cannot be an intent to defraud on the part of the person acting dishonestly. The burden of proving this remains with the prosecution. Given what has been said in Welham, Kastratovic and other authorities dealing with the situation set out in 2 above it further seems to me that the law is that any intent to defraud of the public duty type only arises where there is, and can be, no economic or pecuniary detriment possibly arising from the dishonest act or claim.
His Honour went on to say that there was no doubt that the respondent had acted dishonestly in preparing, or having prepared, false invoices and delivering, or causing to be delivered, those false invoices to Duncan, and that this behaviour did him little credit. He then went on to deal with the question of whether the evidence established beyond reasonable doubt that in doing so the respondent intended to defraud Duncan or any other employee of SWHS. His Honour then made these observations:
Though it is not necessary to establish that he intended to defraud any particular person, it is necessary, in my view, to prove that he intended to defraud an employee of SWHS. As previously set out, the prosecution case is that the accused must be said to have deceived an employee of SWHS, which employee, whoever it was, had a public duty to ensure that the claims for reimbursement for accommodation expenses made by or on behalf of the accused were properly and correctly incurred. Given the evidence of Duncan, at least implicitly if not expressly that he was aware at all material times that the accused was staying at his leased premises in Perth when he stayed overnight in Perth, my view generally as to the unreliability of Duncan's evidence and the evidence of the accused that he discussed material matters with Duncan before commencing to present the false invoices to Duncan, the evidence is overwhelming that Duncan was aware at all material times that the purported invoices presented to him by the accused were false. That being the case, Duncan cannot be said to have been deceived by the accused into failing to carry out the public duty that he had to ensure the propriety and correctness of the claims for reimbursement.
His Honour said further:
It therefore seems to me that if the submission of the prosecution is correct in that these matters are of the public duty type of intent to defraud, and it is of course the effect of the actions of the accused upon an officer or officers of SWHS that is important, that the evidence does not establish that anyone was deceived by the actions of the accused. Duncan knew the purported invoices were false yet presented them. No other employee of SWHS was deceived because they simply did not check in any way that the relevant claims were proper and correct.
His Honour went on to say that additionally, and in any event, he had serious doubts that to characterise the alleged offences as being of the public duty type of intent to defraud and to rely upon that only, was open on the evidence. He then said this:
As a matter of fact all the claims related to the payment to the accused of money. If that is the position, then on my understanding of the law, the public duty type of intent to defraud simply does not arise; it only arises where there is no possibility of an economic or pecuniary type of intent to defraud. As there is in each instance a claim that could lead to an economic or pecuniary loss to SWHS it is not open to artificially submit that notwithstanding the alleged offences are in fact of this nature the matter ought to be dealt with as if they were not of this nature but rather of the public duty type of intent to defraud.
His reasons for decision concluded in this way:
As a result of the matters set out, the prosecution have not established that the accused was not entitled to the amounts that he claimed and received as the result of his dishonest conduct. It is incumbent on the prosecution to do this in order to establish, to the necessary degree, that the accused had an intent to defraud when he forged and uttered the documents in support of his claims. In the circumstances it is not necessary to make any finding as to whether or not the accused had an honest belief that he was entitled to claim as he did. For these reasons I conclude that while the accused acted dishonestly in making the claims that he did it has not been established that he did so with the necessary intent to defraud. Accordingly in due course there will be a judgment of acquittal in respect of each of the charges.

Appeal

An appeal was instituted by an appeal notice dated 23 September 2008 upon the grounds that I will come to shortly.
On 7 October 2008 McKechnie J made various orders in response to the application for leave to appeal including, in particular, that leave to appeal was granted in respect of the all grounds specified in the notice of appeal.
I pause here to recall certain provisions and principles bearing upon any appeal of this kind.
Appeals from courts of summary jurisdiction were formerly governed by the Justices Act 1902 but are now covered by Pt 2 of the Criminal Appeals Act 2004 (WA). By s 7 of the Criminal Appeals Act a person who is aggrieved by a decision of a court of summary jurisdiction may appeal to the Supreme Court.
By s 14 the Supreme Court may dismiss or allow the appeal, or set aside or vary the decision, or remit the case for rehearing. Further, if the Court considers that no substantial miscarriage of justice has occurred, it may dismiss the appeal notwithstanding that a ground of appeal has been decided in favour of the appellant.
By s 39, an appeal court must decide the appeal on the evidence and material that were before the lower court, but this does not prevent the consideration of any evidence that the lower court refused to admit. By s 40 an appeal court may admit any other evidence.
I note in passing that pursuant to the rules concerning double jeopardy a statute will not be understood to confer a right of appeal against an acquittal unless it does so distinctly. However, a decision of a court of summary jurisdiction discharging a complaint has never been regarded with the same sanctity as the verdict of a jury. The trend of legislation in Australia has been to allow the prosecution to appeal against an order of a magistrate dismissing a charge: Davern v Messel (1984) 155 CLR 21 at 32 and 37.
I am of the view, having regard to the way in which the right of appeal is defined, with the right being vested in a person aggrieved, and with broad powers being allowed to the Supreme Court to quash or vary the verdict, that it is open to the prosecutor to appeal against the verdict of acquittal in the present case. To my mind, the reasoning of the High Court in R v Carroll [2002] HCA 55; (2002) 213 CLR 635 and the Court of Appeal in this State in R v Margaria [2003] WASCA 253 does not weigh against this conclusion.
A magistrate is generally required to set out the relevant findings of fact and 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.

Where an appeal is made against findings of fact which depend upon a view taken as to the credibility of witnesses, an appellate court will refrain from interfering with those findings of fact unless it appears that the judicial officer has failed to use, or palpably misused, the advantage of hearing and seeing the witnesses or acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable: Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479.
If an inference is drawn from primary facts and said to be wrong, it is for the appeal court by way of rehearing to analyse the evidence and objective facts in order to determine the issues afresh: Vrisakis v Australian Securities Commission (1993) 9 WAR 395 at 487.
The relief may take the form of quashing the decision in question or remitting back to the court below. The task is to balance the public interest in the conviction of a wrong-doer, the interests of an accused person, and the pragmatic considerations of cost and efficiency in the administration of justice: Verhoeven v Ninyette (1998) 101 A Crim R 24.
It will now be useful to return to the legal principles and decided cases bearing upon the matters principally in issue.

Legal principles

In earlier discussion concerning the statutory provisions, I noted that the phrase 'with intent to defraud' appears in various contexts in pt VI of the Criminal Code. It is used in s 409 of the Code in defining the offence of 'fraud' (ch XL) and in s 473 in defining the offences of 'forgery and uttering' (ch XLIX), being the provision relied upon in respect of the subject charges. The phrase 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 arising out of dishonest conduct, a fundamental distinction has been drawn between the phrases 'intent to deceive' and 'intent to defraud'. Buckley J in Re London and Globe Finance Corporation Ltd [1903] 1 Ch 728 made these observations:
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. [732]
In Balcombe v De Simoni Gibbs J (as a member of the majority) made these observations at 595 in relation to s 409 of the Code (in its form prior to the 1990 amendment):
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.
At first blush, reasoning of this kind might suggest that offences requiring an intent to defraud are confined to cases in which the victim has been deprived of some property or advantage. However, after a full review of previously decided cases, Roberts‑Smith JA concluded in Bolitho's case at [232] that at the core of the concept of fraud at common law lies the notion of deceiving someone into acting in some way to their prejudice. That prejudice will ordinarily, but not necessarily, be economic or property loss (or the putting of such interest at risk), and may extend to situations in which the person upon whom the fraud is perpetrated suffers no personal loss, risk or prejudice at all but is thereby induced to perform a public duty in a way they would not otherwise have done.
These observations were made in the course of a dissenting judgment but as to the notion that intent to defraud extends to cases concerning deflection from public duty, His Honour's observations were consistent with the views of the majority, namely, McLure and Buss JJA.
Justice McLure referred to Welham v Director of Public Prosecutions [1961] AC 103 in which the appellant claimed his intention was not to cause economic loss but to mislead finance companies into believing that certain statutory credit restrictions were being observed. The House of Lords held that intent to defraud was not confined to depriving a person of some economic advantage or inflicting economic loss but existed when a false document was brought into existence for no other purpose than of deceiving a person responsible for a public duty into doing something that he would not otherwise have done but for the deceit, or not doing something that but for it he would have done.
In reviewing the English cases her Honour referred also to a decision of the Privy Council in Wai Yu‑Tsang v The Queen [1992] 1 AC 269. In that case the true position concerning certain dishonoured cheques payable to the bank was concealed in the bank's private ledgers so that the public accounts were misleading. The appellant, a chief accountant at a bank, said he had taken this action to prevent a run on the bank. He was held to be rightfully convicted. It was sufficient if the appellant had the intention of creating a situation which he realised would or might deceive the victim into so acting, or failing to act, that he would suffer economic loss or his economic interests would be imperilled. Further, the Privy Council said that the public duty cases were not in a special category.
Justice Buss, as the other member of the majority in Bolitho's case, in the course of commenting upon certain observations made by King CJ in Kastratovic (mentioned below) to the effect that the detriment is usually economic but not necessarily so, summarised the position in this way:
Those observations contemplate that a person may be defrauded even though the victim's economic interests have not been put at risk, in the ordinary sense of that term. See Peters, per Toohey and Gaudron JJ, (at [25]) per Toohey and Gaudron JJ. In the following examples, there will be an intent to defraud even though the victim's economic interests are not put at risk, in the ordinary sense of that term:
(a)The accused believes the victim owes him or her money and that a defence genuinely asserted by the victim is without merit. The accused, by deceit or fraudulent means, intentionally deprives the victim of the lawful opportunity of having the dispute adjudicated. See Kastratovic per King CJ at 65; Peters per Toohey and Gaudron JJ (at [25]).
(b)The accused intentionally induces the victim, by deceit or fraudulent means, to part with money or property which the victim is entitled lawfully to retain, and which he or she would not have parted with but for the accused's deceit or fraudulent means. The accused gave value for the victim's money or property: see Kastratovic (at 62); Balcombe; s 409(3).
(c)The accused intentionally induces a person, by deceit or fraudulent means, into acting or refraining from acting, and the person's action or inaction contravenes his or her public duty.
In my opinion, an accused will have an 'intent to defraud', within s 409(1), if he or she intends:
(a)to cause or induce loss, detriment or prejudice (including the risk of loss, detriment or prejudice) in relation to any lawful right, interest, opportunity or advantage (including any potential lawful right, interest, opportunity or advantage) of the victim, which has some actual or potential value; or
(b)to cause or induce a person to contravene his or her public duty by doing something that he or she would otherwise not have done or by not doing something that he or she would otherwise have done; or
(c)(perhaps) to cause or induce loss, detriment or prejudice (including the risk of loss, detriment or prejudice) to a non‑economic right or interest of the victim such as private reputation or personal status. [173], [174]
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.
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 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)
It was against this background that McLure JA in Bolitho made these further observations 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. [152]
These various observations go to show that there is clearly a substantial body of Australian case law supporting the proposition that the deflection of a public officer from the performance of his duty is a 'species of fraud' (being the description used by Blow J in R v Turner (No 4) [2001] TASSC 51 at [30]). The discussion of the New South Wales Court of Appeal in R v Horsington [1983] 2 NSWLR 72 shows that the possibility of an economic loss does not prevent reliance on the public duty type of intent to defraud.
It is true that in Bolitho's case McLure JA referred to the 'public duty category' of cases, but there is nothing further in her remarks or in the other cases to suggest that the deflection from public duty category should be regarded as a discrete offence with different elements. On the contrary, as Lord Denning observed in Welham, an intent to defraud is not limited to the idea of economic loss, it extends to the purpose of practising a fraud on someone or other. The common element is that if anyone may be prejudiced in any way by the fraud, that is enough.
This view is consistent with the observations by the Privy Council in Wai Yu‑Tsan at 277 that the public duty cases 'are not to be regarded as a special category' but rather as 'exemplifying the general principle that conspiracies to defraud are not restricted to cases of intention to cause the victim economic loss'.
It is consistent also with the view expressed by King CJ in Kastratovic that '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 forbidden means. It seems that the notion of detriment to a lawful right or interest extends to deflecting the victim from the proper performance of a public duty.
A number of cases establish that the time at which the prosecution must establish the mental element of an offence is at the time of the relevant act: Meyers v The Queen (1997) 147 ALR 440; [1997] HCA 43 at 442; Royall v The Queen (1991) 172 CLR 378 at 393, 401, 414 and 421; Ryan v The Queen (1967) 121 CLR 205 at 217.
It appears from the recently decided case of R v Turner (No 7) (2001) 10 Tas R 219 that whether or not a departmental employee was in fact deceived by the conduct complained of is not relevant to a charge of forging or uttering under s 473 of the Criminal Code.
In that case the five accused were charged with conspiracy to defraud the Commonwealth and the Australian Fisheries Management Authority (AFMA) in that they submitted false returns to the AFMA as to orange roughy catches. It was submitted on behalf of the accused that the prosecution had to prove beyond reasonable doubt not only that the submission of false returns was likely to cause a deflection from the performance of a public duty but also that there was an actual deflection.
His Honour Justice Blow made these observations:
The nature of a conspiracy to defraud the Commonwealth was considered by the High Court in Peters v R [1998] HCA 7; (1998) 192 CLR 493. At 509, Toohey and Gaudron JJ said that that offence 'involves an agreement to bring about a situation prejudicing or imperilling existing legal rights or interests of others'. As I have previously said, I think those words should be treated as referring (inter alia) to the interest that a public officer has in the proper discharge of his or her public duty: R v Turner (No 4) [2001] TASSC 51 at par21. It is significant that an imperilling of legal rights or interests, ie the existence of a mere possibility that legal rights or interests would be adversely affected, is sufficient.
Similarly, McHugh J (with those reasons Gummow J agreed), said the following in Peters at 525:
Although most cases of conspiracy to defraud involve an agreement to use dishonest means which has the effect of inflicting economic loss on a third party, the infliction of such loss is not an essential element of the offence. It is sufficient that the conspirators intended to obtain some advantage for themselves by putting another person's property at risk ... or depriving another person of a lawful opportunity to obtain or protect property ...
In my view it must follow, in a case that involves the public duty of a public officer rather than private property, that the possibility of deflecting a public officer from the performance of his or her public duty is sufficient to establish the relevant element of the crime of conspiracy to defraud.
That was the position in Welham v Director of Public Prosecutions [1961] AC 103. In that case the appellant had forged hire-purchase agreements in order to make it appear that certain companies were advancing money in a permissible way, and had uttered the forged documents so that officers of the Board of Trade would be misled if they inspected the companies' records to see whether credit restrictions were being observed. The House of Lords held that the trial judge had been correct in directing the jury that the possibility of prejudicing an investigation was sufficient for the appellant to have had an intention to defraud. [4] - [7]
In Taylor v The Queen [1997] TASSC 5; (1997) 6 Tas R 310 (19 February 1997) the thrust of the defence was that the appellant was not guilty because even if she made false statements in connection with the payment of the subject benefit she was entitled to the benefit in any event and therefore the Commonwealth had suffered no economic loss.
Zeeman J made these observations:
It is not an element of the crime of defrauding that the person obtaining the advantage is not entitled to it. The essence of the crime is the deceit. By removing the references to the appellant not being entitled to the benefit the crimes charged remained the same, ie, practising a deceit upon the Commonwealth with a view to obtaining the payment of a benefit. The references in the indictment to the non-entitlement of the appellant to the benefit were mere surplusage. [79]
Having regard to the decided cases, it will now be useful to make some general observations about the circumstances of the present case.

General observations

It emerges from my previous summary of the reasons for decision that various assumptions underlay the learned magistrate's conclusion that the prosecution had failed to establish its case and the respondent should be acquitted.
First, the learned magistrate was of the view that as a matter of law, in circumstances where the supposed or potential victim might be deprived of some property or advantage, the prosecution could not establish an intent to defraud by relying upon the rules concerning deflection from public duty. His Honour said 'that any intent to defraud of the public duty type only arises where there is, and can be, no economic or pecuniary detriment possibly arising from the dishonest act or claim'.
Second, the magistrate was of the view that in the deprivation of property or advantage category, the prosecution is required to establish that the accused person did not honestly believe that he was entitled to claim the property or advantage being sought.
Third, his Honour proceeded from the premise that the prosecution is required to establish beyond reasonable doubt that the supposed or potential victim was actually deceived by the conduct of the accused.
These views or assumptions about the law led to a conclusion in the present case that the respondent was not liable because the rules concerning deflection from public duty did not apply in circumstances where the accused was seeking property or an advantage (that is, reimbursement of travel expenses). Thus, first, in the absence of satisfactory or sufficient evidence as to what the appellant's entitlements actually were, the prosecution had failed to negate or rule out beyond reasonable doubt the possibility that the appellant was in fact entitled to the amounts claimed and may therefore have honestly believed that he was entitled. Further, the prosecution had failed to prove beyond reasonable doubt that the supposed or potential victim was actually deceived in that the Department by its incurring officer Duncan knew the invoices were false.

However, it emerges from my review of the decided cases that the views or assumptions principally relied upon by the magistrate in the present case are questionable.
It appears from Wai Yu‑Tsan that the public duty cases are not to be regarded as a special category but rather as exemplifying the general principle that intent to defraud is not restricted to cases of intention to cause the victim economic loss. As King CJ observed in Kastratovic '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 or interest (including deflection from the proper performance of a public duty) being an intention distinct from and additional to the intention to use the forbidden means (such as the creation of a fictitious invoice).
This view leads to the further conclusion that in a case involving public duty it is sufficient that the existence of a likelihood or even a possibility that the complainant's interest in the duty being performed will be adversely affected; that is, it will be sufficient if there is a likelihood or possibility that the complainant will be prevented from properly assessing an eligibility for the benefit being claimed.
In this case, as the learned magistrate himself clearly recognised, there was dishonesty and deceit because the documents asserted a false state of affairs. Even if it be held (as the magistrate eventually did) that no‑one was actually deceived (because Duncan knew what was going on and his colleagues - the certifying officers - relied upon him) or that the respondent might actually have been entitled to the amount claimed, the decided cases suggest that findings of such a kind are not decisive.
In this case the key question was whether at the time of employing the dishonest means (that is, the creation of a fictitious invoice) the respondent had a distinct and additional intention to bring about a deflection from the proper performance of a public duty to verify claims for reimbursement by causing a payment to be made in response to the fictitious invoice, being a payment which would not otherwise have been made but for the deceit.
In this case an inference could be drawn from the evidence that the amount claimed was not due and payable until the appropriate process had been followed and would not have been paid save for the presentation of a claim in a certifiable form. A further inference could be drawn from what was done by the respondent and by Duncan that the respondent knew that an invoice was necessary (and therefore had to be created) in order to obtain the payment. In other words, the deceit was employed to obtain a benefit which could not have been obtained but for the deceit.
It follows from these general observations that the magistrate erred in law in holding that any intent to defraud of the public duty type only arises 'where there is, and can be, no economic or pecuniary detriment possibly arising from the dishonest act or claim'. This was a public duty case and the question was whether at the time when the respondent created and utilised the fictitious invoices he intended to prevent or deflect the Department from performing its duty to properly assess the claim for reimbursement. If it were not necessary to establish that the Department was actually defrauded (as shown by Turner's case), then the state of the respondent's belief as to the nature of his entitlement was immaterial also. It would be sufficient for the prosecution to establish that there was a possibility its interest in the process could be affected because it could not properly assess the claim or, putting it another way, its opportunity to assess the claim was prejudiced.
I therefore consider that the learned magistrate's reasoning was flawed in various respects. He erred in treating the public duty cases as a special category, and in holding that this was not a case involving the performance of a public duty. It seems that this led him to assume, incorrectly in my view, that the prosecution case was misconceived, and that the prosecution was in fact obliged to establish beyond reasonable doubt that the Department by its officers had actually been deceived and thereby deprived of some property or benefit. Thus, in the absence of sufficient evidence to that effect, the prosecution could not succeed.
To my mind, these errors in his Honour's reasoning gave rise to a miscarriage of justice. The errors are reflected in the various grounds of appeal with greater specificity than appears in these general observations. However, in essence, as I have indicated, the key question to be addressed, which the magistrate failed to address, was whether there was sufficient evidence before him from which it could be inferred beyond reasonable doubt that at the time of creating each of the fictitious invoices the respondent intended to defraud the Department, as the party expected to meet the claim for reimbursement, because he had the intention to obtain payments in response to the fictitious invoices which he knew would not be made but for the deceit. If such an intent was found to exist then it could not be said that the respondent honestly believed he was entitled to the payments or acting lawfully. The consequence of findings of this kind would be that the party to whom fictitious invoices were submitted was deprived of its lawful interest (or at least prejudiced in the protection of that interest) in having the claims for reimbursement implicit in the invoices properly assessed or in having any dispute about the merits of the claim adjudicated.
Let me now turn to the grounds of appeal and deal with each in turn.

Grounds of appeal

The first ground of appeal is as follows:
The learned Magistrate erred in law by failing to properly apply the legal principles for proof of intent to defraud.
Particulars
(a)The relevant time to consider the intent of the Respondent was at the time that he forged the false documentation and at the time that he uttered the false documentation.
(b)His Honour wrongly focussed on whether in fact anyone was deceived by the actions of the Respondent at a later time, rather than considering the intention of the Respondent at the earlier time of the forgery and the uttering of the documentation.
(c)His Honour wrongly concluded that because no-one was in fact deceived by the actions of the Respondent and because at least one relevant person knew that the documentation was false when it was presented, there could not be an intent to defraud.
(d)His Honour failed to properly determine what the Respondent's intention was when he forged the documentation and when he uttered the documentation.
(e)The correct test which His Honour should have applied was whether at the time he forged and uttered the documents, the Respondent intended that a public officer (or officers) would:
(i)rely upon them as being true; and
(ii)so perform their duty in a way which they would not otherwise have done, by approving payments they would otherwise not have approved in those circumstances.
It follows from my review of the statutory provisions and decided cases that the elements of an offence under s 473 of the Criminal Code are that the respondent forged a record or uttered a forged record with intent to defraud. The time at which the prosecution was required to establish the relevant intention was at the time of the operative act, in this case, the preparation and submission of the invoices in question. In all cases the elements of intent to defraud connotes an intention which is in some sense detrimental to a lawful right or interest (including deflection from the proper performance of a public duty), being intention distinct from and additional to the intention to use forbidden means.
His Honour's pre‑occupation with actual deceit meant that he did not properly consider whether the prosecution had established intent to defraud beyond reasonable doubt. It follows from my general observations, and from Turner's case, that whether or not an employee of the SWHS was in fact deceived by the respondent's conduct was irrelevant to a charge under s 473 of the Criminal Code.
To the extent that the learned magistrate did consider the issue, his Honour concluded that there was no direct evidence that the respondent was aware that officers of the SWHS other than Duncan would be deceived by his honesty. However, the evidence of the respondent himself was that he did know that there would be other people (apart from Duncan) involved in dealing with his claims.
I am of the view that this ground of appeal has been made out and that his Honour erred in failing to apply the test described in subpar (e) above which is the correct test.
It follows from this conclusion and my general observations that, in my view, his Honour erred in a manner which gave rise to a miscarriage of justice with the result that the appeal should be allowed on this ground.

The second ground

The second ground of appeal is as follows:
The learned Magistrate erred in law and fact in holding that no‑one was deceived by the actions of the Respondent and because Mr Duncan knew that the documentation was false when it was presented, there was no intent to defraud on the part of the Respondent.
Particulars
(a)The learned Magistrate erred in fact because the evidence of other employees of South West Health Services (Ms Lee, Ms Caroline Talbot and Mr Alan James) was that they authorised payment of the claims because they believed the (forged) documents had been checked and confirmed as true by Mr Duncan. They were therefore necessarily still ultimately deceived by the false documents provided by the Respondent, and acted on them by approving payments they would not have done had they known the documents were false.
(b)The finding of the learned Magistrate that there was no direct evidence the Respondent was aware that officers of South West Health Services, other than Mr Duncan, could be deceived by his dishonesty, was an error of fact. The evidence of the Respondent himself was that he did know that there would be other people involved in dealing with his claims.
(c)The finding referred to at 2(b) also involved an error of law. It is not necessary for the prosecution to prove an intent to defraud a particular person (section 29 of the Evidence Act 1906 (WA)).
It follows from my general observations and from the observations I have just made concerning the first ground, that, in my view, the appeal should be allowed on this ground also.

The third ground

The third ground of appeal is as follows:
The Learned Magistrate erred in law in concluding that it was incumbent on the Appellant to prove that the Respondent was not entitled to the amounts that he claimed and received as the result of his dishonest conduct.
Particulars
(a)The failure by the Appellant, if indeed there was any such failure, to refute the fact that the Respondent may have been entitled to funds, the subject of the relevant claim, did not go to any element of the offences.
(b)Even if it could be argued to be relevant in some circumstances, the entitlement or otherwise in fact to any moneys was of no relevance to the determination of the intent to defraud in the context of a charge that was pursuant to section 473 of the Criminal Code(WA) and particularly where it arose in the context of an alleged 'public duty' type of case.
It follows from my general observations that the question whether the respondent was entitled to the money in question, and thus whether the Department suffered any economic loss by reason of his conduct, was immaterial to the issue of criminal liability. Where the payment of the amount of the claim depends upon the decision of some alternative body or assessor, an intent to influence by dishonest means that decision in the respondent's favour by deflecting the body from the strict performance of its duty, is an intent to defraud notwithstanding that the respondent may genuinely believe that he is lawfully entitled to payment of the claim and therefore to a decision in his favour.
It emerges from consideration of the decided cases that if the deceit which is employed imperils the economic interests of the person deceived, this is sufficient to constitute fraud even though in the event no actual loss is suffered and notwithstanding that the deceiver did not desire to bring about an actual loss.
This is evident in the observations of King CJ in Kastratovic at 62 to the effect that if a party intends to influence the decision of some tribunal or assessing authority by dishonest means, there can be an intent to defraud regardless of whether the claim is genuine. King CJ acknowledged that defrauding may consist of deceiving a person responsible for public duty into doing something that he would not have done but for the deceit.
It follows from the decided cases and my general observations that as a matter of statutory interpretation, it is not necessary to prove actual detriment in order to make out a case of forgery or uttering. Actual detriment is not an element of the subject offence although it is an element of one type of fraud under s 409 of the Criminal Code.
The learned magistrate's finding that it was incumbent on the prosecution to prove that the respondent was not entitled to the amounts that he claimed was an error of law that produced a miscarriage of justice.
It is always necessary for the prosecution to prove the intent which forms an ingredient of a particular crime, and any honestly held belief, whether reasonable or not, which is inconsistent with the existence of that intent will afford a defence. However, the prosecution's case at trial was that the intent to defraud was the intent to deceive employees of the SWHS into approving his claims contrary to their public duties. It was not alleged that the respondent intended to cause economic loss. An honest claim of right does not afford a defence in those circumstances because it does not defeat the existence of that intent. In other words, in circumstances where the respondent intended to influence the decision of some person exercising a public duty, it did not matter that his claim may have been genuine and a defence of honest claim of right was not available.
The appeal will be allowed on this ground also.

The fourth ground

The fourth ground of appeal is as follows:
The learned Magistrate erred in law in finding that the 'public duty' type of intent to defraud referred to in The Queen v Kastratovic [1986] 42 SASR 59 and upon which the Appellant's case was based, could only arise where there was no possibility of the second type of intent to defraud, being an economic or pecuniary type.
Particulars
(a)His Honour correctly determined that there were two 'types' of intent to defraud that had been referred to in the authorities.
(b)His Honour then erred in law when he concluded that the public duty type of intent to defraud could not arise except when there was no possibility of an economic or pecuniary type of intent to defraud.
(c)His Honour erred in law when he then found that as each claim could lead to an economic or pecuniary loss to the public authority, he could not deal with the matter on the basis alleged by the prosecution being a public duty type of intent to defraud.
As I indicated in earlier discussion, the learned magistrate held that the public duty type of intent to defraud only arises 'where there is no possibility of an economic or pecuniary type of intent to defraud'. However, it follows from my general observations that this conclusion is not supported by judicial authority. The cases dealing with persons performing public duties are not to be regarded as a special category, but rather as exemplifying the general principle that an intent to defraud does not require an intention to cause the victim economic loss. Intentionally depriving another person of a lawful opportunity to obtain or protect property can be an intent to defraud.
It was consistent with the prosecution's case that the respondent had deprived employees of the SWHS of the opportunity to protect the Department's financial interests by preventing them from performing their public duty. Although the claim in this case was a claim for money, the fraud itself was directed at the employees of the SWHS. The learned magistrate erred in holding that he could not deal with the matter on the basis alleged by the prosecution; that is, that it was a public duty type of intent to defraud.
It emerges, then, that the learned magistrate's finding that the prosecution could not rely on a public duty type of intent to defraud in the circumstances of this case was an error of law that led to a miscarriage of justice. The appeal will be allowed on this ground also.

Summary

The appeal will be allowed on the grounds set out in the appeal notice. I have in mind that the matter will be remitted to the Magistrate's Court to be dealt with by another magistrate in the light of these reasons for judgment. However, I will hear from the parties as to the precise terms of the orders and any directions to be made.