NVX -v- THE STATE OF WESTERN AUSTRALIA

[2022] WASC 407

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   NVX -v- THE STATE OF WESTERN AUSTRALIA [2022] WASC 407

CORAM:   TOTTLE J

HEARD:   23 NOVEMBER 2022

DELIVERED          :   30 NOVEMBER 2022

FILE NO/S:   SJA 1055 of 2022

BETWEEN:   NVX

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

For File No:   SJA 1055 of 2022

Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram:   MAGISTRATE C STOCKDALE

File Number            :   PE 48351 of 2021

Catchwords:

Criminal law - Appeal - Attempted fraud - Attempt to obtain COVID-19 vaccination certificate without receiving the vaccination - Whether the magistrate failed to consider the second objective element of fraud under s 409(1)(c) of the Criminal Code Act Compilation Act 1913 (WA) - Whether there was sufficient evidence to establish that obtaining the COVID-19 vaccination certificate was a benefit - Appeal dismissed

Legislation:

Criminal Appeals Act 2004 (WA), s 9(1), s 9(2), s 9(3), s 14(2)
Criminal Code Act Compilation Act 1913 (WA), s 270, s 272, s 409(1)

Result:

Leave to appeal refused
Appeal dismissed

Representation:

Counsel:

Appellant	:	S Watters
Respondent	:	TBL Scutt

Solicitors:

Appellant	:	Justine Fisher Barrister & Solicitor
Respondent	:	The Director of Public Prosecutions for The State of Western Australia

Case(s) referred to in decision(s):

Hunter v The State of Western Australia [2014] WASCA 184; (2014) 245 A Crim R 191

Moylan v The State of Western Australia [2007] WASCA 52; (2007) 169 A Crim R 302

Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

Skelly v The State of Western Australia [2020] WASCA 3

Strahan v Brennan [2014] WASC 190

TOTTLE J:

Introduction

1. On 20 June 2022 the appellant was convicted of one count of attempting by fraud to obtain a benefit, namely a COVID‑19 vaccination certificate contrary to s 409(1)(c) of the Criminal Code Compilation Act 1913 (WA).  The appellant seeks leave to appeal.  The offence of which the appellant was convicted was committed on 2 November 2021.  At the trial a charge of attempted fraud allegedly committed on 12 October 2021, also relating to a COVID‑19 vaccination certificate, was dismissed by the magistrate on the basis that the appellant had no case to answer.  The appellant was fined $2,000 and a spent conviction order was made.[1]

   [1] These reasons have been anonymised to preserve the benefit to the appellant of the spent conviction order.

Prosecution case

1. The prosecution case was that on the afternoon of 2 November 2021 the appellant attended a COVID‑19 vaccination clinic and twice offered $500 to the nurse providing vaccinations for her to 'squirt the vaccine out' (ie not administer it to him) but to 'mark off' that he had received the vaccination.  The prosecution alleged that the intention was thereby to obtain a COVID‑19 certificate indicating that he had been vaccinated.  The prosecution led evidence of mobile phone messages that indicated that the appellant was fearful and very reluctant to receive the COVID‑19 vaccinations and had discussed or otherwise explored 'alternative routes' including fake vaccination certificates.  The messages also indicated that the appellant was afraid that he would lose his fly‑in/fly‑out job in the mining industry if he was unable to meet vaccination requirements.  The prosecution led evidence of the public health directions mandating vaccinations in the resources industry.  The prosecution led evidence of the appellant's bank statements for the relevant period which demonstrated that the appellant had the means to make a cash payment of $500 on 2 November 2021.

The magistrate's reasons

1. At the conclusion of the prosecution case the appellant's counsel made a submission that there was no case for the appellant to answer in respect of each charge.  It was submitted that there was no evidence to support the proposition that the vaccination certificate was a benefit and there was no evidence that the appellant engaged in any deceit or 'fraudulent means'.[2]

   [2] Transcript of primary court dated 20 June 2022, 63.

2. In the course of his reasons for dismissing the no case submission in respect of the 2 November 2021 offence the magistrate said:[3]

   The prosecution case is the same on this charge as it was on the first charge; effectively that the benefit that was sought to be obtained was COVID‑19 vaccination certificate.  There's a live question, it seems to me, of whether a COVID-19 vaccination certificate is, in fact, a benefit.

   …

   It seems to me that a COVID-19 certificate, while it has no financial value, is capable, in some circumstances, of being regarded as a benefit …  So it's not necessarily required to be economic in nature.  And I'm aware, in a general sense, that, in this State, over the proceeding here that, at various times, the holding of a COVID-19 vaccination certificate has afforded certain - I won't say "rights" but has afforded access to certain services that were not otherwise accessible.  And, to that degree, it seems to me that a COVID-19 vaccination certificate did have some value.

   [3] Transcript of primary court dated 20 June 2022, 73 - 74.

3. After ruling on the no case submission the magistrate heard very short submissions before returning after a brief adjournment to deliver his reasons for convicting the appellant.  In the course of those reasons, his Honour returned to the question of whether the vaccination certificate was a benefit and said:[4]

   On the basis that he has been charged with obtaining a benefit, I have explained, through my reasons and decision on the no case submission, that I take the view that the COVID-19 vaccination certificate is capable of being construed as a benefit.

   I note that a number of the cases refer to the benefit generally being economic but that that's not necessarily always the case.  It seems to me that that is one of these cases where the benefit that's obtained is not an economic benefit in terms of the direct obtaining of the certificate.  It seems to me, though, that the direct obtaining of the certificate necessarily, given [the appellant's] employment - and I will say that it's clear for me, from my final review of the text messages, that he was working in a fly in/fly out role, from the repeated references to different sites including FMG sites and various other mine sites, that he was someone who was employed in a role that requires attendance at mine sites and therefore was someone who would be subject to the mandate.

   So, in those circumstances, I take the view that the COVID‑19 vaccination certificate itself is capable of being viewed as a benefit when taking into account [the appellant's] personal circumstances.

   [4] Transcript of primary court dated 20 June 2022, 82.

4. The magistrate then turned to the other elements of the offence and said:[5]

   [5] Transcript of primary court dated 20 June 2022, 82 - 83.

   In terms of the intent to defraud, obviously the subjective element relates to the objective elements of fraud below.  So the objective element is that deceit or fraudulent means are employed.

   Any fraudulent means, as I mentioned in the no case decision, encompasses other conduct falling outside the scope of deceit which can properly be stigmatised as dishonest.  In my view, bribery falls within any fraudulent means.  I turn to the subjective element with intent to defraud.  And the question here, in my view, is whether [the appellant], by saying the words - and I'm going to turn to the exact words which is, in my view, significant:

   If I had $500 in my pocket, would you mark that I had had it and squirt it out.

   It seems to me that those particular words, even though they are couched in hypothetical terms, in my view, those words, regardless of whether they use the word "if" and regardless of whether or not they use the word "hypothetical" and I not that that's something that the witness did not accept are capable of being regarded in combination with the other text message conversations, which were found on his phone, are capable of revealing an intent to defraud on behalf of [the appellant].

   What is extremely clear from the mobile phone messages, the Messenger ones and the emails, is that [the appellant] knew that he was likely to be required to have the vaccination.  He didn't want to have the vaccination yet he wanted to retain his job.  So it seems to me that that, coupled with the spoken words and the repetition of those words, and the fact that the witness was - [the nurse] was particularly sure that those words were said, are capable of being regarded as a spoken intent to engage [the nurse] in a fraud, that fraud being her squirting out the injection and recording that [the appellant] had had the injection in an attempt to gain a valid COVID-19 vaccination certificate.

   It was raised on behalf of [the appellant] that there has been no evidence that has been led in relation to the various steps that were being involved in the vaccination certificate being obtained, that is, what was required to be entered onto the computer.  It seems to me that in order to make out this offence, it's not necessary for [the appellant] to have had personal knowledge of what all those steps were.  It's simply that he has made an attempt and, with regard to attempt, I'm talking about a step that is more than merely preparatory.  And, in this circumstance, similar to other descriptions of attempt.

   For instance, in drug matters, such as in the case of Weggers, where pseudoephedrine tablets are popped out of their packet in combination with having assembled the necessary equipment for the putting together of a drug lab.  It seems to me that the request of [the nurse], combined with the ability - and I make no finding that he necessarily had the cash on him - but that he had the financial ability to make good that deal, as it were.  It was a step that was more than merely preparatory.

   When I view that in light of the fact that that request was made, not once but twice, it seems to me that it's a clear subjective intent on [the appellant's] behalf that he was attempting to engage [the nurse] in his fraud.  The actual details of those fraudulent means, in terms of the particular entry onto the computer, in my view, are not relevant.

5. The magistrate's statement that 'the subjective element relates to the objective elements of fraud below' was a reference to what was said by McLure P in Hunter v The State of Western Australia,[6] where her Honour said:[7]

   There are three elements to the offence of fraud under s 409(1), one subjective and two objective. The subjective element is "with intent to defraud". The subjective element relates to the objective elements. The nature and extent of the relationship is discussed below. The first objective element is that deceit or fraudulent means are employed. The second objective element requires that the deceit or fraudulent means cause one or more of the consequences specified in paras (a)-(f) of s 409(1).

   [6] Hunter v The State of Western Australia [2014] WASCA 184; (2014) 245 A Crim R 191.

   [7] Hunter [36].

6. The magistrate had referred to Hunter in the course of his reasons on the no case submission.

Grounds of appeal

1. The grounds of appeal are as follows:

   1His Honour erred when he failed to consider adequately or at all the second objective element of fraud under section 409(1) of the Criminal Code.

   2The verdict of guilty was unreasonable and/or not supported as the evidence adduced by the prosecution failed to establish to the requisite standard that the obtaining of a Covid vaccination certificate was of actual or potential economic value to the appellant.

2. Part 2 of the Criminal Appeals Act 2004 (WA) governs appeals from courts of summary jurisdiction. The appellant requires leave to appeal in respect of each ground of appeal.[8]  Leave must not be granted unless the court is satisfied that the ground has a reasonable prospect of succeeding.[9]  To meet this threshold the ground of appeal must have a rational and logical prospect of succeeding, in effect, having a real prospect of success.[10]  If leave to appeal is refused, the appeal is taken to be dismissed.[11]

   [8] Criminal Appeals Act 2004 (WA) s 9(1).

   [9] Criminal Appeals Act 2004 (WA) s 9(2).

   [10] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].

   [11] Criminal Appeals Act 2004 (WA) s 9(3).

Ground 1

1. Section 409(1) of the Criminal Code states:

   409.Fraud

   (1)Any person who, with intent to defraud, by deceit or any fraudulent means —

   (a)obtains property from any person; or

   (b)induces any person to deliver property to another person; or

   (c)gains a benefit, pecuniary or otherwise, for any person; or

   (d)causes a detriment, pecuniary or otherwise, to any person; or

   (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 and is liable —

   (g)if the person deceived is of or over the age of 60 years, to imprisonment for 10 years; or

   (h)in any other case, to imprisonment for 7 years.

2. I have already referred to what was said by McLure P in Hunter about the elements of the offence created by s 409(1). The discussion by Buss JA (as his Honour then was) of the elements of the offence was as follows:[12]

   [12] Hunter [95] - [103].

   The offence created by s 409(1) has three elements. I will identify each of the elements and then discuss some aspects of them.

   First, the accused must have an "intent to defraud". Secondly, with that intent, the accused must have engaged in "deceit" or employed "fraudulent means". Thirdly, with that intent, and "by" that deceit or "by" those fraudulent means, the accused must have brought about a circumstance enumerated in para (a) to para (f) of s 409(1).

   The common law meaning of "intent to defraud" has not been altered or enlarged by par (a) to par (f) of s 409(1). The concept of "intent to defraud" confines the scope of the offence created by the provision. See Bolitho v Western Australia (2007) 34 WAR 215; 171 A Crim R 108 at [154](McLure JA), [170] (Buss JA).

   As I noted in Bolitho at [174], 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.

   The categories I have described are not intended to be exhaustive.

   Each of the terms "deceit" and "fraudulent means", in s 409(1), connotes dishonesty. See Graham-Helwig v Western Australia (2005) 30 WAR 221; 154 A Crim R 326 at [13]-[14] (Wheeler JA, Malcolm CJ and Pullin JA agreeing).

   The element, in s 409(1), that the accused have engaged in "deceit" or have employed "fraudulent means" is separate and distinct from, and additional to, the element that the accused have an "intent to defraud".

   The word "by", in s 409(1), requires that the accused's "deceit" or "fraudulent means" have brought about a circumstance enumerated in para (a) to para (f) of the provision. That is, a circumstance enumerated in para (a) to para (f) must have been a result of the deceit used or the fraudulent means employed.

   However, it is not essential that the accused's intent, in the context of his or her "intent to defraud", should correspond with the circumstance enumerated in para (a) to para (f) of s 409(1) which has been brought about by, or is a result of, the accused's "deceit" or "fraudulent means". See Bolitho at [177] (Buss JA).

   Also, it is not essential that the accused uses the "deceit" or employs the "fraudulent means" against the person who is the subject of the relevant circumstance referred to in para (a) to para (f) of s 409(1). That is:

   (a)the accused may use the deceit or fraudulent means against one person, A; and

   (b)the person who is the subject of the relevant circumstance referred to in par (a) to par (f) of s 409(1) may be another person, B.

3. In Skelly v The State of Western Australia,[13] the Court of Appeal held that on a proper construction of s 409(1) of the Criminal Code, that is the use of the word 'by', imports the principles of s 270 and s 272 concerning factual and legal causation. The Court of Appeal set out the causation principles as follows:[14]

   The following causation principles are well established in relation to s 270 of the Code:

   (1)Both legal and factual causation must be established.

   (2)Factual causation requires that the conduct of the accused in fact caused the death.  At least ordinarily, that will be established if the accused's conduct is shown to be a necessary condition of the death; in other words, the 'but for' test is satisfied.  In determining factual causation, the jury apply common sense to the facts as they find them.  In order to be a factual cause of the death, the accused's act need not be the sole, direct or immediate cause of the death. 

   (3)Legal causation is concerned with whether the factual connection between the accused's conduct and the death is sufficient to justify the attribution of criminal responsibility for the death.  An accused's act will be a legal cause if it substantially or significantly contributed to the death.  It is for the jury to decide whether the contribution of the relevant conduct of the accused was substantial or significant.

   Similar principles apply to causation in s 272 of the Code. (citations omitted)

   [13] Skelly v The State of Western Australia [2020] WASCA 3.

   [14] Skelly [35] - [36].

4. The Court of Appeal went on to state:[15]

   To establish factual causation in the context of s 409(1), the accused's deceit or fraudulent means must in fact cause the occurrence of a circumstance enumerated in pars (a) - (f) that is alleged in the indictment. Ordinarily at least, that requires satisfaction of the 'but for' test. To establish legal causation, the accused's deceit or fraudulent means must substantially or significantly contribute to the occurrence of that circumstance.

   [15] Skelly [37].

5. The instant case was a comparatively rare case where the intent to defraud did not involve a loss or a detriment being suffered by a 'victim' but involved an attempt to induce a person, in this case the nurse, to contravene her public duty.

6. The essence of the submission made by the appellant in support of ground 1 is that while the magistrate referred to the subjective element (the intention to defraud) and the first objective element (the use of deceit or other fraudulent means) his Honour did not refer to the second objective element, that is, the causal connection between the fraudulent means and the attempt to obtain a benefit.[16]

   [16] ts 6 - 7.

7. It must be acknowledged that in the passage of the magistrate's reasons reproduced at [6] his Honour makes express reference to the intent to defraud and the use of fraudulent means but does not make an express reference to the causal connection, the second objective element.  I do not accept, however, that the magistrate did not consider the second objective element.  It is important that the magistrate's reasons are read as they should be read, that is, generously and not with an eye attuned to finding error.[17]  In my view, it is significant that, having addressed the issue of benefit, his Honour introduced his discussion of the other elements of the offence with a reference to McLure P's analysis in Hunter of the elements of the offence into the subjective element and two objective elements.  It is also significant that his Honour was required to consider whether the elements of an attempted fraud had been made out and not whether the fraudulent means had actually brought about a benefit.  Read against that background the following passage in his Honour's reasons is to be understood as addressing the causal connection (as well as a submission only faintly pressed at trial that the appellant's conduct was insufficient to amount to attempt):[18]

   It was raised on behalf of [the appellant] that there has been no evidence that has been led in relation to the various steps that were being involved in the vaccination certificate being obtained, that is, what was required to be entered onto the computer.  It seems to me that in order to make out this offence, it's not necessary for [the appellant] to have had personal knowledge of what all those steps were.  It's simply that he has made an attempt and, with regard to attempt, I'm talking about a step that is more than merely preparatory.

   [17] Strahan v Brennan [2014] WASC 190 [89] - [90].

   [18] Transcript of primary court dated 20 June 2022, 83.

1. Accordingly, I do not accept that the magistrate failed to give adequate consideration to the second objective element.  In my view it was clearly an issue in his Honour's mind as demonstrated by the passage in the reasons to which I have referred.

2. Further, had I been persuaded that the magistrate erred in failing to consider the causal question, I would have concluded that no substantial miscarriage of justice had occurred and would have invoked s 14(2) of the Criminal Appeals Act and dismissed the appeal.  In this respect I accept the respondent's submissions on the issue of causation summarised below.

3. The respondent referred to the following facts:

   (a)The magistrate had before him a COVID-19 digital certificate (subsequently obtained by the appellant, once the appellant later decided to receive the COVID‑19 vaccinations in December 2021).[19]  The certificate stated that it:

   [S]hows your COVID-19 vaccination details as reported to the Australian Immunisation Register by your vaccination provider …  The data is based on information provided by vaccination providers and the accuracy of the data is dependent on the quality and timeliness of information provided.  If any of the details are not correct, please ask your vaccination provider to provide the correct details.

   (b)The nurse who would have provided the vaccine had obtained from the appellant his phone number from which she had accessed his vaccination records.[20]

   (c)The appellant had asked the nurse to 'mark that I had it'.[21]

   [19] Exhibit 6.

   [20] Respondent's outline of submissions filed 18 November 2022 [30].

   [21] Respondent's outline of submissions filed 18 November 2022 [30].

4. From these facts the respondent argued the inference was unassailable that, had the vaccine provider (the nurse) recorded that the vaccine had been administered to the appellant, this information would have become available on the Australian Immunisation Register and thus available for download and use by the appellant.  I am satisfied that had the nurse recorded that the vaccine had been administered to the appellant, he would have been able to download the certificate.  It was not necessary for the prosecution to prove the mechanism by which this was brought about.

5. Leave to appeal in respect of ground 1 is refused.

Ground 2

1. The appellant submitted that the evidence adduced fell short of establishing that the attempted fraud would have seen the appellant stand to realise something of an actual or potential economic value.  His Honour should have held a reasonable doubt and entered a judgment of acquittal.

2. In the context of s 409(1)(c) 'benefit' has been given a broad construction. In Moylan v The State of Western Australia,[22] the appellant was convicted of an offence that he, with intent to defraud, by deceit or fraudulent means gained a benefit, namely the opportunity to apply for the position of Chief Executive Officer of the City of South Perth in which he was not guaranteed.  The appellant was General Manager of the City.  The Chief Executive Officer was a Mr Metcalfe.  The latter took sick leave to have a back operation.  He was recuperating at home when he was visited by the appellant.  There was more than one visit.  The appellant conveyed to Mr Metcalfe that the council were unhappy with his management and wanted to make changes.  They had arrived at two options for him.  The first was that he could remain an employee but with a substantial reduction in salary; the second was a negotiated immediate separation with a generous payout.  To that point, Mr Metcalfe had no thought of retiring.  His intention was to continue as Chief Executive Officer when he returned from sick leave.  But the appellant subsequently persuaded him that the Council had decided to terminate his services and contest any unlawful dismissal claim, if he did not resign forthwith.  Mr Metcalfe did resign.  The appellant was then able to arrange the termination payment.  The position of Chief Executive Officer was subsequently advertised.  The appellant applied for it.  There was a selection process, and he was appointed.

   [22] Moylan v The State of Western Australia [2007] WASCA 52; (2007) 169 A Crim R 302.

3. The issue was whether an opportunity to apply for a position, there being no certainty of getting it, could constitute a benefit within the meaning of s 409(1)(c) of the Criminal Code.  Miller AJA (Steytler P and Pullin JA agreeing) held that the opportunity given to the appellant to apply for the position, which had become vacant by reason of what was arguably a deceitful process on his part, was quite capable of constituting the gaining of a benefit.[23]  Miller AJA said:[24]

   The appellant was arguably placed in "a superior position" by reason of Mr Metcalfe's resignation.  He thus gained a benefit.  A benefit can, in my opinion, also embrace an advantage.  "Benefit" is defined in the Shorter Oxford English Dictionary to include "advantage".  The word "advantage" is, in turn, defined to include "to benefit".

   [23] Moylan [64].

   [24] Moylan [68].

4. In this appeal, the appellant does not challenge the magistrate's finding that:[25]

   [I]t's clear for me, from my final review of the text messages, that [the appellant] was working in a fly in/fly out role, from the repeated references to different sites including FMG sites and various other mine sites, that he was someone who was employed in a role that requires attendance at mine sites and therefore was someone who would be subject to the mandate.

   [25] Transcript of primary court dated 20 June 2022, 82.

5. The mandate to which his Honour referenced was the Resources Industry Worker (Restrictions on Access) Directions which came into force on the day of the offence, 2 November 2021 at 11:55 hours.[26]  The text messages to which his Honour referred were sent by the appellant to associates in the months preceding the offence in which he discussed the risk that he would be unable to continue working as a 'fly in/fly out' worker because of the likelihood of a 'no jab, no job' policy being introduced.[27]

   [26] Exhibit 2.

   [27] Exhibits 1.1 - 1.29.

6. Obtaining a vaccination certificate would have conferred an advantage on the appellant because it would have reduced the risk that the appellant would lose his employment as a fly in/fly out worker.  This was not a speculative possibility.  The appellant was so employed and to maintain that employment he needed a vaccination certificate.  Thus, obtaining the certificate would have conferred a benefit (advantage) on the appellant by reducing, if not eliminating the risk, of being unable to maintain his then current employment status.

7. Leave to appeal in respect of ground 2 is refused.

Conclusion

1. As leave to appeal in respect of each ground has been refused, the application will be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

OK

Associate to the Honourable Justice Tottle

30 NOVEMBER 2022