Fong v The Queen

The Court of Criminal Appeal of the Northern Territory heard an appeal by William Desmond Fong against his convictions for imposing upon the Commonwealth by an untrue representation contrary to s 29B of the Crimes Act 1914 (Cth) (count 3) and for defrauding the Commonwealth contrary to s 29D of the Crimes Act 1914 (Cth) (count 7). Fong had been acquitted on five other counts of defrauding the Commonwealth but convicted on count 3 and count 7.

The legal issues before the Court were whether the conviction on count 3 was supportable given differing interpretations of s 29B of the Crimes Act 1914, and whether the guilty verdict on count 7 was unreasonable and inconsistent with the acquittal verdicts on the other fraud counts, contrary to the principles established in *MacKenzie v The Queen*.

The Court determined that the correct interpretation of s 29B of the Crimes Act 1914 was that an offence could be committed even if the misrepresentation was not made directly to the Commonwealth or a Commonwealth authority, and even if the Commonwealth was not actually misled. Applying this interpretation, the Court affirmed Fong's conviction on count 3. Regarding count 7, the Court found that the jury's acquittal on the other fraud counts indicated they were not satisfied beyond reasonable doubt that Fong knew the claims were false. The Court concluded that the evidence, particularly the telephone calls from the Australian Taxation Office, did not provide a sufficient basis to distinguish the conduct relating to count 7 from that of the acquitted counts, rendering the guilty verdict unreasonable and an affront to logic.

Consequently, the Court dismissed the appeal against the conviction on count 3, but allowed the appeal against the conviction on count 7, setting aside the verdict and entering a verdict of acquittal. The matter was remitted to the trial judge for resentencing on count 3.