Greene v The King - [1949] HCA 55

APPLICANT-APPELLANT

THE KING

RESPONDENT.

ON APPEAL FROM THE COURT OF CRIMINAL APPEAL OF

NEW SOUTH WALES. Criminal Law-False pretences-Existing fact-Representation by accused that he

could supply venetian blinds-Money paid to him therefor-Failure to supply blinds-Similar transactions-Remedy-Civil or criminal-Crimes Act 1900- 1946 (N.S.W.) (No. 40 of 1900-No. 43 of 1946), SS. 179, 182.

G. was convicted upon a charge that he falsely pretended to T. that he then intended and was in a position to supply and deliver to T. within a period then agreed upon certain venetian blinds; by means of which false pretences he then obtained from T. with intent to defraud a valuable security, the property of T., namely, a sum of £11. The evidence showed that G. obtained a cheque for £11 from T. on account of venetian blinds which G. said he could supply in six weeks. The blinds were not supplied. It was proved that G. had operated in a similar manner in relation to some twelve other persons. Upon appeal,

Held, by Latham C.J., Rich and Dixon JJ. (McTiernan and Webb JJ. dissenting), that in the absence of a false statement of a material existing fact the conviction must be quashed.

Per Latham C.J., Rich, Dixon and Webb JJ.: In relation to the offence of false pretences a representation of the existence of a present intention to perform a promise is not a representation of an existing fact.

Decision of the Court of Criminal Appeal of New South Wales, by majority,

APPEAL from the Court of Criminal Appeal of New South Wales.

Lawrence Henry Benson Greene was charged at the Court of Quarter Sessions, Sydney, upon an indictment for the following

79 CLR 354

offences: 1 that on 24th December 1946 he falsely pretended to Percival Thomson that he then intended and was in a position to supply and deliver to Thomson, within a period then agreed upon, certain venetian blinds by means of which false pretences he did then obtain from Thomson with intent to defraud a valuable security, the property of Thomson, to wit, a cheque for payment of the sum of £11 and 2 that between 24th December 1946 and 25th December 1947, at Sydney, having received the sum of £11, upon terms requiring him to account for the whole of that money, fraudulently did omit SO to account for the said money in violation of the terms upon which he SO received the money.

Greene pleaded not guilty to each charge and conducted his own defence.

The jury returned a verdict of guilty on the first count. An appeal by Greene to the Court of Criminal Appeal was dis- missed.

Upon the hearing of an application made on behalf of Greene for special leave to appeal to the High Court the parties agreed that the application for special leave should be treated as the hearing of the appeal.

Further facts and relevant statutory provisions appear in the judgments hereunder.

M. H. Byers, for the applicant-appellant. The…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Greene v The King

Details

AGLC: Greene v The King [1949] HCA 55
Case: [1949] HCA 55
Decision Date: 6 December 1949

CaseChat Overview and Summary

Lawrence Henry Benson Greene was convicted in the Court of Quarter Sessions, Sydney, of falsely pretending that he intended and was in a position to supply venetian blinds, thereby obtaining a cheque for £11 from Percival Thomson. Greene's appeal to the Court of Criminal Appeal of New South Wales was dismissed. The High Court of Australia granted special leave to appeal and treated the application as the hearing of the appeal.

The central legal issue before the High Court was whether a false representation as to a present intention to perform a promise constitutes a false pretence of an existing fact for the purposes of section 179 of the *Crimes Act 1900* (N.S.W.). The indictment alleged that Greene falsely pretended he intended and was in a position to supply the blinds, and that by means of these false pretences, he obtained the cheque.

A majority of the High Court, comprising Latham C.J., Rich and Dixon JJ., held that in the absence of a false statement of a material existing fact, the conviction must be quashed. The Court reasoned that a representation of the existence of a present intention to perform a promise is not a representation of an existing fact, and therefore cannot form the basis of a false pretence charge under the relevant legislation. While there was evidence of Greene's fraudulent conduct and a pattern of similar transactions, the majority concluded that the alleged pretence related to future conduct or intention, not a present, ascertainable fact. McTiernan and Webb JJ. dissented, finding that the allegation that Greene was in a position to supply the goods constituted a fraudulent misrepresentation of an existing fact.

The appeal was allowed, and the conviction was quashed.

Orders