Fermanis v The State of Western Australia

In Fermanis v The State of Western Australia, the appellants, Fermanis and his co-accused, were convicted of fraud by deceit and fraudulent means under s 409(1) of the Criminal Code (WA). They appealed the decision on the basis that the trial judge failed to properly direct the jury on the requirement of unanimity in relation to the specific acts or omissions that constituted the deceit or fraudulent means. The court was required to determine whether the trial judge’s omission to direct the jury on the necessity of unanimous agreement on the specific acts or omissions amounted to an error that rendered the verdict unsafe and unreliable.

The court held that the jury must be unanimous in their agreement on the particular act(s) or omission(s) that constituted the deceit or fraudulent means in each count of the indictment. The court found that the trial judge’s failure to give the required direction resulted in an unsafe and unreliable verdict. The prosecution had presented several alternative acts or omissions that could satisfy the element of deceit or fraudulent means, but the jury was not directed to agree on which specific act(s) or omission(s) constituted the deceit or fraudulent means. This failure meant that the jury may have convicted based on different acts or omissions, leading to an unsafe verdict.

The appeal was successful, and the convictions were quashed. However, given the appellants' health problems and age, the court exercised its discretion not to order a retrial. This decision highlights the importance of ensuring that the jury is properly directed on the necessity of unanimous agreement on the specific acts or omissions that constitute the essential elements of the offence, particularly in cases where multiple acts or omissions are presented as alternative means of satisfying those elements.