O'Brien v The Queen - [2004] WASCA 107

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: O'BRIEN -v- THE QUEEN [2004] WASCA 107

CORAM: MURRAY J
STEYTLER J
MCLURE J

HEARD: 10 MAY 2004

DELIVERED : 20 MAY 2004

FILE NO/S: CCA 164 of 2003

BETWEEN: KENNETH FRANCIS O'BRIEN
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Charges of fraud - Applicant was a finance broker who raised money from investors to be loaned to another on the security of a first mortgage - Representation made to potential investors as to value of property - Investment induced by representation understood to be as to value of property without regard for strata title potential - Representation could not be objectively so understood - Falsity of representation not proved - Deceit or fraudulent means not established - Verdicts set aside - Turns on own facts

Legislation:

Criminal Code 1913 (WA), s 409(1)(d)

Result:

Leave to appeal granted
Appeal allowed
Convictions quashed

Category: B

Representation:

Counsel:

Applicant: Mr S W O'Sullivan
Respondent: Mr S E Stone

Solicitors:

Applicant: Sean O'Sullivan
Respondent: State Director of Public Prosecutions

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

Dyers v The Queen (2002) 210 CLR 285
Jones v The Queen (1997) 191 CLR 439
Lewis v The Queen (1998) 20 WAR 1
M v The Queen (1994) 181 CLR 487
Mathews v The Queen (2001) 24 WAR 438
MFA v The Queen (2002) 77 ALJR 139

Case(s) also cited:

Chan v The Queen [2002] WASCA 50
Peters v The Queen (1998) 192 CLR 493

MURRAY J: This is an application for leave to appeal against conviction. There were in fact 28 convictions, all of fraud, contrary to the Criminal Code (WA), s 409(1)(d), which defines the offence committed by a person "who, with intent to defraud, by deceit or any fraudulent means causes a detriment, pecuniary or otherwise, to any person". Each count in the indictment was substantively in identical terms, alleging that the applicant, with intent to defraud, by deceit or fraudulent means caused a detriment to a named natural or corporate person in the form of the investment of a nominated sum of money in a loan secured by a joint first mortgage.
There are nominally 13 grounds upon which the application is pursued, but in truth they are generally not grounds at all, but a narrative of the argument presented for the applicant, as a result of which it is contended that in certain respects, to which I shall come so far as is necessary in dealing with the arguments raised, the convictions are not supported by the evidence and are unsafe and unsatisfactory.
Presented in that way the application for leave relies upon that part of s 689(1) of the Code which requires this Court to allow an appeal against conviction where the verdicts of the jury should be set aside on the ground that they are unreasonable or cannot be supported having regard to the evidence. The question thus posed may…

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 O'Brien v The Queen

Details

AGLC: O'Brien v The Queen [2004] WASCA 107
Case: [2004] WASCA 107
Decision Date: 20 MAY 2004

CaseChat Overview and Summary

The case of O'Brien v The Queen involves the applicant, a finance broker, who was charged with fraud in relation to raising money from investors for loans secured by a first mortgage. The applicant had represented to potential investors the value of a property, which induced them to invest. The issue was whether the representation could be objectively understood to be solely about the property's value, without considering potential strata title issues, and whether the falsity of this representation was proved, establishing deceit or fraudulent means. The High Court was tasked with determining these legal issues.

The central legal issue the court had to decide was whether the applicant's representation to potential investors was understood by them solely in terms of the property's value, without regard to potential strata title issues. Additionally, the court had to assess whether the falsity of this representation was established, thereby proving deceit or fraudulent means. The court's analysis involved examining the objective understanding of the representation by the investors and the relevance of the strata title potential in this context.

The court found that the representation could not be objectively understood as being solely about the property's value, without considering the potential strata title issues. The court held that the falsity of the representation was not proved, and thus, deceit or fraudulent means were not established. Consequently, the verdicts against the applicant were set aside. The court's reasoning was grounded in the objective interpretation of the representation and the necessity of proving the falsity of the representation to establish the fraudulent intent.

The final orders of the court were to set aside the verdicts against the applicant, effectively acquitting the applicant of the fraud charges. The court's decision hinged on the specific facts of the case, underscoring the importance of objective interpretation of representations and the burden of proof in establishing fraudulent intent.

Orders