R v Fletcher

[2019] NSWDC 587

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Fletcher [2019] NSWDC 587

Hearing dates:

17 – 18 October 2019

Date of orders:

22 October 2019

Decision date:

22 October 2019

Jurisdiction:

Criminal

Before:

DCJ Beckett

Decision:

See [107]

Catchwords:

Criminal Law – Section 192E(1)(b) Crimes Act 1900 – By deception dishonestly obtain a financial advantage/cause a financial disadvantage

 

Criminal Law and Procedure – Directed Acquittal

  Key words – Online betting – bookmakers – Obtain financial advantage – Cause financial disadvantage – Gambling – effective cause – opportunity – benefit

Legislation Cited:

Crimes Act 1900 (NSW), ss 4B, Part 4AA, 192B, 192D, 192E(1)(b), 192F

Cases Cited:

R v Button [1900] 2 QB 597
Case Stated by Director of Public Prosecutions (SA) (No 2 of 1993) (1993) 70 A Crim R 323 (SASCFC)
Doney v R [1990] HCA 51; (1990) 171 CLR 207
Duncan & Ors v Independent Commission Against Corruption [2016] NSWCA 143
Gibbs v The Queen (1992) 58 SASR 347
Ho and Szeto v R (1989) 39 A Crim R 145
JMR (1991) 57 A Crim R 39
Moylan v Western Australia [2007] WASCA 52; 169 A Crim R 302
R v Clucas [1949] 2 KM 226
R v Harris; R v Turner [1963] 2 WLR 851
R v King; R v Stockwell (1987) 1 QB 547
R v Lambassi [1927] VLR 349
R v Leung (No 3) [2009] NSWSC 450
R v Morris (1997) 98 A Crim R 408 (WACCA)
R v PL [2009] NSWCCA 256
R v R (1989) 18 NSWLR 74
R v Saba [2013] QCA 275
Re Attorney-General’s Reference (No 1 of 1983) [1983] 2 VR 410
Rex v Lewis (unreported), Somerset Assizes January 1922 (see C.R. Williams, Property Offences, below)
Royall v The Queen (1990) 172 CLR 378

Texts Cited:

C.R. Williams, Property Offences, Law Book Co., 3rd Ed, 1999 159

Category:

Principal judgment

Parties:

Stephen Charles Fletcher
Department of Communities and Justice

Representation:

Counsel:
P. Boulten SC
C O’Donnell SC

 

Junior Counsel:
S. Jeliba
L. Hutchinson

  Solicitors:
Cockburn and Co Solicitors
NSW Department of Justice Office of the General Counsel

File Number(s):

2017/328979

Publication restriction:

There be suppression of:(i) any information that would reveal, or tend to reveal, the identity of the Crown witness referred to as Witness A including photographic images of the witness, except for the proper preparation and conduct of these proceedings;(ii) any information that would reveal or tend to reveal, the current employment status of the witness; and(iii) the notice of motion initiating the application for the suppression order and all submissions and evidence in relation to that notice of motion.Pursuant to an order made on 1 October 2019.

Judgment

1. The accused, Stephen Charles Fletcher was arraigned on 2 October 2019 on the presentation of an indictment charging 78 counts contrary to section 192E(1)(b) of the Crimes Act 1900 (NSW) asserting that he dishonestly either obtained a benefit or caused a disadvantage by a deceptive act. All 78 counts allege the same type of conduct, however 5 of the counts assert a financial advantage was gained in the sum won, and the remaining counts assert a financial disadvantage was caused as a result of the payment of a winning margin or customer profit.

2. At the conclusion of the Crown case on 17 October 2019 the accused made an application for directed verdicts on all counts on the indictment. The accused filed 44 pages of written submissions which were marked MFI 1 and placed on the file. Thirty pages of written submissions were filed on behalf of the Crown, opposing the application, on 18 October 2019 (MFI 2) and 14 pages of further submissions provided on 19 October 2019 (MFI 4) and placed with the file. On 21 October 2019 the accused filed 7 pages of additional submissions in reply (MFI 5). Oral argument proceeded on 18 and 21 October 2019.

A summary of the Crown Case

3. The asserted deception relies upon the placement of bets in respect of horse and greyhound races between September 2012 and March 2013 by the accused via four online betting accounts held with two corporate bookmakers, ‘Sportingbet’ and ‘Bet365’. Both corporate bookmakers held their corporate bookmaker licences with the Northern Territory Racing Commission.

4. The Crown case is that all of the bets placed with the betting agencies were placed by the accused via betting accounts held in names other than his own, namely via accounts in the names of the persons referred to as Witness A, Matthew Seagg, and Edward Ridgway (‘the named account holders’).

5. It is the Crown case that at the relevant time, the accounts with the corporate bookmakers in the accused’s name had either been closed (in the case of Bet365) or had been subject to betting restrictions in respect of Sportingbet (Ex 1, p 173). It is in dispute whether there was any practical effect of the restrictions in respect of the traders accepting bets on the Sportingbet account (T 274), however the evidence indicated whatever the practice in respect of those restrictions, the accused chose not to use the Sportingbet account in his own name during the indictment period (Ex 2). The precise reasons for the limitation or closure of the accused’s betting accounts was not the subject of evidence, although the totality of evidence suggests that it may have been because the accused was considered ‘high risk’ by virtue of his professional punter status and number, or quantum, of his wins.

6. The Crown asserted that the accused used accounts referred to in the evidence as ‘bowler’ accounts to circumvent the limitations or restrictions placed on him by the bookmakers either because those restrictions were real, or because he perceived himself to be so restricted. The term bowler account was understood in the industry to relate to the practice of Person A using the account of Person B in order to avoid placing a bet in the name of Person A. The Crown alleges the accounts opened in the names of the Witness A, Matthew Seagg and Edward Ridgeway were such accounts, and were either opened on the request of the accused directly or indirectly through others, or were already opened and provided to the accused for his use. The accounts were registered in the respective names of the account holders, using their respective addresses and personal details, and thereafter verified by the provision of personal identifying documentation such as drivers licence and/or passport.

7. The Crown case is that the accused had sole use of the respective accounts, save for the exception of two bonus bets placed by Ridgway in late December 2012. The Crown asserts that the accounts were not being utilized by the accused in any agency relationship with the account holders, nor that he was acting as a commissioned agent whereby he collected and placed bets on behalf of others. Rather it is asserted the accounts were opened or provided to the accused for his sole use, operation and control and that he paid the money into the account to be used on wagers and he directed (or at least attempted to direct in the case of Seagg) the funds paid out of the accounts and where they were to be sent thereafter. The deception relied upon is the use of the accounts in such a way that he held himself out as the account holder and thereby deceived the corporate bookmakers to allow him to place bets via those accounts.

8. The Crown asserts that during the indictment period the accused used various accounts in the name of others (not just those of the identified account holders) as his own, for a relatively short time before moving to the next account. The Crown asserts the accused was strategic as to timing, type and placement of bets on the respective accounts in order to avoid bookmaker scrutiny and the potential of having limitations placed on returns or bet types. The Crown also asserts that the accused’s management of the accounts was mostly, except in the case of Ridgway, done at arms-length, via third or fourth parties who essentially arranged for the accounts and the provision of identification in return for a modest commission.

9. Five of the bets (counts 1 – 5) involved bets placed over the telephone by the accused using the name, or acknowledging the name, of Witness A, and by provision of an identifying PIN code. The remaining accounts involved internet bets where it is alleged the accused used a user identification and PIN number to access the account holder’s account and place bets.

10. The Crown asserts that as a result of the alleged deception the accused dishonestly obtained a financial advantage by virtue of the winning margin paid on the bets placed and won, or alternatively caused a financial disadvantage to the betting agency by virtue of the payment of the winning margin, or customer profit paid on the winning bet by the betting agency.

11. It is not in issue that it was the accused who used the accounts of the named account holders to place various, if not most, of the bets the subject of the charges. What is in issue is whether by doing so, the accused was acting deceptively and was being dishonest according to law and if he was deceptive and dishonest, whether it caused the financial advantage/disadvantage asserted.

The evidence concerning Sporting bet charges – Witness A: counts 1 -5

12. The circumstances relevant to proof of deception that the Crown rely upon in respect of the Sportingbet charges are that the accused was a professional gambler and whilst he had his own Sportingbet account from 21 June 2000 he had been subject to a ‘no racing – sport only ’ restriction from September 2005. As stated, during the period of the indictment the accused placed no bets on racing events using his own account (Ex 2).

13. During the relevant period the terms and conditions of the Sportingbet online betting accounts required persons wishing to place bets via telephone or the Sportingbet website, to have an open account with the betting agency.

Clause 1   A “Client” is a person who is 18 years or older who has either a Sportingbet Member account or a Sportingbet Betting account. Clients are responsible for ensuring that their records, in particular address, telephone number and payment/bank details, are kept up-to-date…

Clause 2    Sportingbet Member Account Holders who wish to place wagers with Sportingbet are required to open a Sportingbet Betting Account;

Clause 3   It is the Client’s responsibility to ensure that they keep their user name and security details confidential;

Clause 4   Clients will be responsible for all wagers in which their user name and security details are used for any activity on their Sportingbet Betting Account…;

Clause 5   …all Sportingbet Betting Account holders are required to provide Sportingbet with adequate identification…(including) a certified copy of a current driver’s licence…or…passport…”Identification details” means your name, address and date of birth…

Option 1: Online Verification for Australian citizens requiring two of the following: Taxfile no; medicare card or Australian passport; Verification using Australian Post of 100 points of verification….

Option 3: Verficication using certified documents….

Clause 6: If identification was not received within 90 days of activation the account would be suspended

Clause 17   Sportingbet reserves the right to void any or all wagers made by any individual or group of people acting together…in an attempt to defraud Sportingbet…

Clause 20   A Client may only have one Sportingbet Betting Account, unless otherwise agreed to by Sportingbet.

14. The practice of using bowler accounts at Sportingbet during the relevant period was acknowledged. Whilst the discovery of such an account was a basis for restricting or closing an account (TS 315) the use of such accounts was considered a ‘reality’ in the industry and the process of identifying such accounts was to be managed. For this reason, accounts were monitored and if necessary could be restricted or shut down if they were identified as operating as such. From the business perspective of the corporate bookmakers, bowler accounts posed the practical problem that they did not know from whom they were accepting a bet, which prevented them from adjusting their odds accordingly or limiting the amount bet. Further, such accounts put the corporate bookmakers in danger of non-compliance with anti-money laundering and counter-terrorism legislation that called for adequate identification and identity checks of account holders.

15. In 2012, Witness A was approached by an associate of the accused, Marc Smith who offered him $400 - $500 for him to open an online account in his own name for the use of another. Witness A agreed and provided his identification details including his bank details and driver licence to Mr Smith in order to open such an account. The account was opened on 20 July 2012 in Witness A’s name and address and a username and a personal Identification number (‘PIN’) allocated. Bets were subsequently laid through the account in Witness A’s name between 21 July 2012 and 13 January 2013.

16. Telephone intercepts at the relevant time indicate that the accused placed bets by telephone with a telephone operator during which the verification process was almost uniformly followed, requiring the citation of the PIN number and the first name of the account holder. On 20 occasions between 28 September and 13 October 2012, the accused was captured on intercept laying bets over the telephone with Sportbet during which he used (or responded to) Witness A’s first name and cited the PIN number (Ex 3 pp 1 – 34). On 5 of the 20 occasions the accused utilised the account in Witness A’s name there was a winning margin which were credited to Witness A’s account which he later accessed to place further bets.

17. Various SMS messages and contemporaneous bank and account records indicate that the accused ultimately received funds into his bank account on 5 January 2013 (in the sum of $27,046) following wins made from bets laid on Witness A’s Sportingbet account and paid into Witness A’s bank account via Mr Smith’s account. Various communications between Marc Smith, Anthony Williams and Timothy Ivaska indicate that Witness A was being directed to transfer the winnings from his own bank account to Smith in return for a small commission and that the accused was both the ultimate beneficiary of the winnings and the person who determined how much that commission would be.

18. The evidence of Witness A is that he never placed any bets on the Sportingbet account opened in his name (T 500.10).

19. In summary, the Crown allege that in respect of Counts 1 – 5 the Sportingbet account was effectively operated by the accused for the accused’s financial benefit. The account was opened by Witness A for the benefit of the accused via a third party (Marc Smith), with money placed into the account by the accused with wins and losses placed by the accused, on his own behalf, later transferred to him on his request (via third or fourth parties), through two different bank accounts before arriving in the accused’s account.

Ridgway Sporting bet charges – counts 63 - 78

20. Edward Ridgway opened a Sportingbet account after being approached by a mutual friend of the accused, Christopher Wyllie with whom the accused had a social relationship. An online Sportingbet account in Ridgway’s name was opened on 19 September 2012 for which Ridgway received a return of $500. The account was allocated a log in, PIN number and a username which Ridgway knowingly provided to the accused. The user name for the account was ‘dbooza’ being a nickname, or similar to one, used by Ridgway.

21. The accused used Ridgway’s Sportingbet account between 26 October 2012 and 15 March 2013 on over 80 occasions (Ex 8). Ridgway said that he only used the account in his name on two occasions in that period when his account was allocated a free bonus bet. Various telephone intercepts indicate that the accused was using this account including with the assistance of Ridgway on occasion (Ex 3, pp 2 – 4; 17 – 25; 35 – 38; 51 – 55; 56; 57 – 61; 66 – 67; 68 - 71). A telephone intercept on 14 December 2012 recorded the accused telling an associate that it would be the “last weekend for that account” and he was “gonna get to withdraw the money on Monday...so we’ll need a new account” (Ex 3, p 62 – 65). Later he warned his associate not to open another account on the same computer that Ridgway’s account was opened on “otherwise they’ll know its DBOO”. On 17 December 2012 the accused confirmed with Christopher Wyllie that it was “time for DBOO to withdraw” and two days later instructed Ridgway that he was going to get $21,000 from the Sportsbet account and put it into Ridgway’s bank account and asked for his bank details. Three days after the deposit of the funds into Ridgway’s account, Ridgway had a bank cheque made out to the accused and delivered it to him personally.

Ridgway Bet 365 charges – counts 24 - 62

22. The circumstances relevant to proof of deception that the Crown rely upon in respect of the Bet365 charges are that the accused had his own Bet365 account opened on 9 September 2012 (Ex 1, p 235).

23. The terms and conditions of bet365 online betting accounts at relevant times in 2012 and 2013 included various terms and conditions including the following (Ex 1, p 181);

1.2   Bet365 is required…to verify your identity when you open an account with us. If you are unable to verify your identity within 90 days of the date you open your account, Bet365 will suspend your account;

1.3   All information supplied when registering with the site MUST be accurate and complete in all respects. In particular, if using a credit or debit card, the cardholder’s name MUST be the same as the name used when registering with the Website.

1.4   Bet365 may confirm a customer’s address by posting an address verification letter to the customer.

1.7   Customers may open only one account.

2.1   Bet365 allows all its customers to choose their own username and password combination. Customers must keep this information secret and confidential as you are responsible for all bets/wagers place on your account and any other activities taking place on your account.

2.3   If, at any time, you feel a third party is aware of your user name and/or password you should change it immediately via the Website.

2.4   If you nominate another person as an authorised user of your account, you shall be responsible for all transactions such person makes using the relevant account details.

4.2   Bet365 reserves the right to close or suspend your account at any time …(and) … shall be entitled to close or suspend your account if: … (c) Bet365 considers that you have used the Website in a fraudulent manner … (d) Bet365 considers that you have used the Website in an unfair manner or have deliberately cheated or taken unfair advantage of bet365 or any of its customers.

24. Similarly to Sportingbet, Bet365 made reference to compliance with anti-money laundering and counter-terrorism legislation, as well as compliance with responsible gambling responsibilities in respect of their compliance with the 90 days for identification verification.

25. The CEO of Bet 365 gave evidence that when an account was opened Bet365 used software that linked an account opened over the internet with third party verifiers (named VIX and ID3) to conduct electronic verification of the name from Medicare numbers or other sources to verify the person was over 18 and that “it matched”. They could further verify the identity of the person by progressing to physically obtaining the identification. They sent the PIN through the post to the confirmed address. On occasion they made a request for confirmation of identification (like a passport) if something “triggered” their “financial due diligence to do more verification” (TT 249 – 250).

26. Telephone intercept recorded that the accused was advised via telephone recording on 29 December 2012 from Bet365 that his account was being closed and his funds withdrawn (Ex 3, p 111; Ex 1, p 235).

27. Three days before this, on 26 December 2013 (several months after a Sportingbet account was opened in his name) an account in the name of Edward Ridgway was opened with Bet365 using his own date of birth, address and contact details. A user ID and username was allocated consistent with his nickname “dbooza”. On that day Ridgway rang Bet365 and asked how to put money into his Bet365 account (Ex 3, pp 97 – 101). The next day a telephone intercept recorded the accused saying: “my new men are DBOO…they were just…opening accounts” (Ex 3 pp 109 – 110). In total, 155 bets were placed on the Ridgway Bet365 accounts between 2 January 2013 and 3 March 2013 (Ex 4 tab 4). The winning bets comprise counts 24 – 62.

24. On 2 January 2013, the accused was recorded on telephone intercept with Bet365 asking for his account number: “I haven’t got my account. I don’t know what my account number is” citing Ridgway’s name, address, date of birth and username. He thereafter placed a bet.

25. On 9 January 2013, the accused was recorded via telephone intercept discussing his own Bet365 account during which he was told that his account had been reviewed and it had been determined that it be closed. The accused replied: “Right so now I’ve just gotta get another bodgy and they won’t know who I am…I’ll just bet again..that’s how it works..I’ll get another one” (Ex 3 pp 115 – 119)

26. On 13 February 2013, a telephone intercept recorded the accused asking Ridgway for his bank details to transfer funds to his account saying: “let’s see if we can win up something off these idiots…at Bet365” (Ex 3 pp 124 – 128). Bank records indicate $3000 was credited to Ridgway’s account that day with noted description “From Stephen Fletcher Deboo” (Ex 4, Tab 7). Later that day a telephone intercept picked up a conversation between Ridgway and the accused where he asked the accused what he wanted done: “with that three grand in my account” and the accused responded: “if I just do a thousand a time looks like I’m more desperate” (Ex 3, p 130). Five days later, $2900 in total was transferred in various smaller amounts ($200, $700, $1000 and $1000) into Bet365’s account (Ex 4 tab 7).

27. On 25 February 2013, a telephone intercept recorded Ridgway telling the accused that he had tried to: “do fifty thousand but that wouldn’t work so..just did two lots of $25,000”. The two discussed the transfer for funds and the accused leaving Ridgway: “a little present” (Ex 3 pp 133 – 134).

28. On 3 March 2013, the accused sent an SMS to Ridgway asking about sending “365 those details” (Ex 3 p 137). A telephone intercept on the same day showed a call between the accused and a male Kim Hunter that infers from the content that Mr Hunter worked for Bet365 and had access to the “Dboo account”. The accused asked “what’s he won on turnover DBOO?” and Hunter told the accused “I dunno these payments in and out” and they discussed the fact DBOOZA’s “only winning a hundred and eight on turnover”. The accused said “I think DBOO’s had his last bet with bet365” and said: “…we’ve got Matty Seigs now reading the roll” (sic) (Ex 3, pp 138 – 140).

29. That same day, telephone intercepts recorded the accused ringing Ridgway attempting to have him divert his telephone to his phone “a blokes gonna..ring you...I need to talk to him...the bet365 guy,” and later: “cause Bet365 are about to call ... they’ve closed the account” (Ex 3, pp 141 – 143). Later the accused discussed with Christopher Whyllie his unsuccessful attempt to have Ridgway divert his phone which was “very concerning when Bet365 are calling him trying to verify that it was him they were talking to when I was talking to them” (Ex 3 pp 145 – 146.)

30. The next day, on 4 March 2013 the accused spoke to Ridgway and Ridgway confirmed he had spoken to the guy and “everything is cool the account’s not closed”. The accused asked Ridgway to call bet365 and ask if the “fifty thousand turned up”. Later they discussed that Ridgway was told that the account was in fact closed but he had not been told the reason. The accused responded “cause we’ve been winning, that’s why” (Ex 3 P 151).

31. That same day $50,000 was deposited into Ridgway’s bank account in two amounts of $25,000, and a further $13,885 the next day. On 4 March 2013 Ridgway reported to the accused that “that money came through” (Ex 3, p 153) and on 5 March 2013 they discussed how it would be transferred. On 5 March 2013 the accused sent Ridgway an SMS providing the bank details of Kim Hunter. On 6 March 2013 Ridgway withdrew $62,500 from his bank (Ex 4, Tab 4) and deposited it into Hunter’s account (Ex 4, Tab 11). Ridgway sent an SMS to the accused “all done” and the accused replied “legend thanks”.

Seagg Bet 365 charges – counts 6 - 23

36. The evidence concerning the Matthew Seagg accounts included that he was a former police officer and a work acquaintance of Anthony Williams, who was an acquaintance of the accused. In 2012, Seagg was out of work. He had a conversation over Facebook with Williams during which Williams asked him if he had any old sporting or betting accounts and, if not, whether he wanted to open one. Williams said:

“mate who is a professional punter, he is just that good he can’t put bets on through corporate bookmakers…he puts 10k into your account and bets on it, you get a whack of whatever he wins, zero risk to you. Only catch is, if he doesn’t win, you don’t get paid He has won every time. Last week he won 125K, gave my mate 10k. The other time he won 75k gave my mate 6. Simple as that … Nothing dodgy, just raping corporates ’coz they only want to take $100 bets from idiots like us who never win.” (Ex 1 pp 241 – 242).

37. In February 2013, Williams and Seagg had an SMS exchange that included Williams asking him: “what other accounts to you have??” with Seaggs responding: “None I could open one”. Williams said “they win 20K – they normally give you 1k...all legit mate..they just can’t get on because they are toooo good…they will use sportingbet/betezy/ias.centrebet...I need your email address”. Seagg responded: “whats my cut” (Ex B)

38. Matthew Seagg subsequently provided his identification and bank details and his Sportingbet account details to Williams. An account was opened in Seagg’s name with his details with Bet365 amongst others (accounts were also opened with other corporate bookmakers)(Ex 4, Tab 6). In total, 135 bets were placed on the Seagg Bet 365 accounts between 2 March 2013 (the day before the conversation with Kim Hunter referred above at [32] above, where the accused was recorded as saying: “…we’ve got Matty Seigs now reading the roll” (sic) (Ex 3, pp 138 – 140)) and 30 March 2013 (Ex 4, Tab 2). In total, 23 of the 135 bets were winning bets, 18 of them related to the charge counts 6 - 23.

39. A telephone intercept on 7 March 2013 with Luke McDonald (an apparent employee at bet365) recorded the accused saying: “Have a look at what it says on the, the account I’m using as a bodgy at the moment, Matty Seags. M A, double T, Y S, can you look at the account, see what it says about it” (Ex 3, p 163).

40. The next day, on 8 March 2013, a telephone call between Kim Hunter (from Bet365) and the accused included Hunter telling the accused: “Sean Meaggs is under review” to which the accused responded: “Matty Seaggs?” Hunter advised the accused that: “it’s OK ... all clients would go under that ..betting that big … they’ve checked for computer links and they can’t find any”. Hunter advised that the account was under review and that it would: “run for about a fortnight…they will check every cent that he has and they will note what priced you took”, to which the accused responded: “well it’s about time Matty Seaggs had some bad bets”. Hunter said: “it doesn’t mean he has to lose…they’ll just note the bet until, and eventually if they, if it’s okay they take off reviewed now he goes into the ruck”. The accused responded: “well I know how to fix Matty..just punt off the gronks sheet” (Tab 3 pp 164 – 165).

41. That same day the police officer Anthony Williams sent the accused Seagg’s user name and password to the Bet365 account via messenger (Ex 1 p 245).

42. On 13 March 2013, Seagg received $45,000 into his account (having received a deposit of $17,616 from a Sportingbet account bet on 9 March 2013). Various sums were thereafter debited from Seaggs accounts to various corporate bookmakers. On 21 March 2013, Seagg sent an email to his bank branch and cc’d “Tony Paul” directing that $25,500 be credited to Williams. A sum of $25,550 was subsequently withdrawn from Seaggs account and transferred to “Williams” (Ex 4 Tab 6).

43. In June through to August 2013, various SMS exchange between Seagg and Williams inferred that Seagg had not transferred funds that had been put into his account that Williams considered were owed to him. Williams sent messages during June 2013 as follows: “how is that transfer coming along?? You need to transfer it all asap” “I left my mortgage short to cover you and the boys want what owed”(sic); “the last 3 withdrawals should have hit your account by now 4+ from 365….”. During July 2013 the content of the SMS infers that the amounts had still not been paid and Williams provided Seagg with his bank details and $27000 was referred to, and a reference to “7k centre bet, 4k bet 365” amongst others (Ex D). On 30 July 2013, Williams complained about money still outstanding and that “the boys want the rest of the cash”.

The accused’s application for directed verdicts

44. The accused does not argue that a prima facie case cannot be made as to the role played by the accused in the placing of each of the bets relied upon in the 78 counts on the indictment. The accused further conceded that the element concerning dishonesty was a matter for the jury (AWS [148]).

45. The accused’s application is that the each of the counts on the indictment calls for directed verdicts for the following reasons:

1. The Crown case is defective because it cannot establish both kinds of deception contained within each count on the indictment, namely:

1. Identity deception: that Mr Fletcher pretended to be the named account holder; and

2. Authority deception: that Mr Fletcher was authorised to place the relevant bets.

2. The Crown case is defective because it cannot establish that both the identity and authority deception caused the financial advantage or disadvantage.

Argument as to the element of deception

46. The accused argues that the indictment specifies two kinds of deception in that the Crown alleges he both pretended as the named account holder and pretended that he had the account holder’s authority to place the relevant bets.

47. As to identity deception the accused argues that when taking bets the relevant corporate bookmakers did not require identification of the person in whose name the account was in, rather all they required was information that confirmed the bets were to be placed on a particular correct account. It is argued that the corporate bookmaker, neither in its contractual terms and conditions applicable at the time, nor in the practice of its traders who monitored or accepted the bets that came in via the internet, practiced a blanket ban on the use of bowler accounts.

48. As to authority deception the accused argues that the “authority” to be established is as concerns the named account holders themselves and that, as concerned Witness A and Ridgway, both had knowingly given authority to the accused, or at least another person, to open and operate accounts in their names. On this basis, it was argued, the accused had “authority” to operate those accounts as defined in the Macquarie Dictionary to include, inter alia, the giving of authority or legal power or to formally sanction an act or proceeding.

Argument concerning causation

49. The accused submits that the Crown is required to prove beyond a reasonable doubt that both the “identity” and the “authority” deception caused the financial advantage/disadvantage (AWS [116]).

50. The accused contends that the Crown cannot establish the causal link between the alleged identified deceptions and the funds paid on a win following wager. The accused says that there were multiple factors that caused the financial advantage/disadvantage asserted, namely that the horse/greyhound that was selected won the race, noting that the accused was only charged with the winning bets and not the losses.

51. Further, the accused asserts that any deception of the accused “played no role at all” in the corporate bookmakers decision to accept the bets and that the pleaded representation (as to identity) was “entirely irrelevant” to the bookmaker’s acceptance of the bet. It is asserted that the terms and conditions of the respective corporate bookmakers did not require disclosure of “identity” when placing bets and that the practices used by the corporate bookmakers impacted upon the acceptance of the bets regardless of whether an account was restricted or banned, such as by operation of the minimum bet rule. Alternatively, some bets were “factored down” to bring bets within acceptable limit which impacted the amount of the stake bet, others were subject to the Bet 365 “odds guarantee”. Further to the consequence of these various processes, it was argued, there was a practice on the trading floor, that corporate bookmakers accepted bets irrespective of who placed them, including when they knew or suspected the bet was being placed via a bowler account.

The Crown’s response

As to the application as it relates to deception: authority

52. The Crown argued that the accused’s interpretation of the deception pleaded in the indictment was misconceived as the requirement as to authorisation attaches to the corporate bookmaker and not to the named account holder. The Crown submitted that the Crown case is and always has been that the accused’s deception in respect of each charge was when he placed the relevant bet, representing that he was the named account holder (e.g. Witness A) and was thus authorised (i.e. by the relevant corporate bookmaker) to place the bet through the relevant account (e.g. the Sportingbet account in the name of Witness A). In other words, when placing the bets and purporting to be the account holder the accused thereby purported to be the person i.e. the named account holder (e.g. Witness A) who had been authorised by the bookmaker to place bets on that account when it was opened.

53. The Crown argued that the characterisation of the deception by the accused was illogical and concerned alternate and contradictory propositions in that, as asserted, the Crown would be seeking to prove that the accused simultaneously represented himself to be both the account holder and to have the authority of the account holder to place the bets. The Crown argue that if the Crown had wished to plead the count this way they would have used the word “or” between the name of the account holder and the words “was authorised”, rather than the word “and”.

Deception as to identity

54. The Crown asserted its case concerning deception relied was circumstantial arising from the circumstances in which the named account holders came to hand over the operation of the accounts to the use and control of the accused.

55. The Crown assert the deception arises from the totality of the evidence concerning the identification requirements imposed which included the terms and conditions, the requirement for identification on each account, and identification process adopted via the telephone operators evident on the 20 occasions the accused rang and placed bets on Witness A’ s account (in respect of Sportingbet) or via the internet. In oral submissions the Crown asserted that a proper analysis of the totality of the evidence indicated that what was happening in fact was a “cat and mouse” game between the accused and the corporate bookmakers as the accused juggled accounts for short periods before the bookmakers identified the account as a bowler and shut it down or restricted its conditions. In all the circumstances set out at paras. [12] – [43] above, the evidence, taken at its highest, is capable of proving the deception alleged in each count to the required standard.

Causation

56. The Crown asserted the accused argument concerning causation was misconceived because the clear inference arising from the evidence was that the accused’s deception allowed him to place the relevant bets that caused the payment of the winning margin which resulted in the financial advantage. The Crown argued that the case law relied upon by the accused (as set out at para. [80] below) was no longer good law and not binding in the NSW jurisdiction. Any evidence that concerned what the corporate bookmakers did or did not do was ‘conjecture’ and did not break the causal link.

57. The Crown asserted that identity information was clarified by those that took the bets, including via the website, to ensure that a person was using the right account, but was not limited to that purpose. The telephone intercepts concerning the Ridgway account indicated that the use of the account holder’s name and individual account number went beyond simply identifying the account name but extended to the individual and was a means by which it was determined that the person placing the bet or operating the account was in fact the named account holder. The PIN and user name were capable of being seen as uniquely identifying information to shortcut the process of eliciting more detailed identifying information.

58. The Crown argued that the terms and conditions ought not be read in isolation from the general practice of the operators captured on the telephone intercepts and that together, did not support the assertion that the corporate bookmakers not only failed to prohibit, but allowed other persons to operate accounts.

59. The Crown disputed that the other factors raised by the accused concerning the application of the minimum bet rule, factoring and the price guaranteed product, operated in the way claimed. Rather, the operation of the minimum bet rule did not mandate betting agencies to submit to fraud or the use of bowler accounts generally, but rather required minimum returns when bets were taken a fixed odds on bona fide accounts. Nor did conjecture as to whether the corporate bookmakers offset the risk of bets break the causal connection between the deception and the win obtained.

60. Taken at ‘its highest’ the evidence is argued to be capable of proving each element of each count.

The principles concerning directed verdicts

61. The approach to applications of this kind were conveniently summarised by Rothman J in R v Leung (No 3) [2009] NSWSC 450 and no issue was taken with, or criticism made of, that expression of the relevant principles on appeal to the CCA [R v PL [2009] NSWCCA 256]. In that case, his Honour said (at [3]-[6] inclusive) that:

..the principles upon which such a direction may be given are strict and confined, but the test, once satisfied, is not discretionary. It is a trial judge’s duty to direct a verdict of acquittal, if the evidence could not sustain a guilty verdict, or, as more commonly expressed, if there be no evidence upon which a jury, properly directed, could convict: Doney v R [1990] HCA 51; (1990) 171 CLR 207 at 212.6. In determining whether there is no evidence that can sustain a guilty verdict, the court is required to ignore contradictory evidence unfavourable to the Crown case and to take the Crown case at its highest, including any inferences that may arise from the evidence adduced. It is for the jury, not the judge, to resolve conflicting evidence: R v R (1989) 18 NSWLR 74 per Gleeson CJ at 81. While the test has been described as a question of law, it necessarily involves an assessment of the facts that are proved by the evidence adduced. Two issues are clear. First, it is not for the trial judge to determine the issue on the basis that a jury verdict would be unreasonable or, as it was once described, unsafe and unsound (Doney, supra). If there be evidence (even tenuous, inherently weak or vague evidence) which the jury is able to take into account and which, if accepted by the jury, would support a verdict of guilty, the matter must be left to the jury. It is not a matter for the trial judge to pre-empt a potentially unreasonable verdict by a jury, but a matter for the Court of Criminal Appeal, if the verdict ultimately reached be found to be unreasonable. Second, it is insufficient, in determining whether to direct a verdict, for a trial judge to come to the conclusion that a reasonable hypothesis consistent with innocence can be formulated: JMR (1991) 57 A Crim R 39. If an inference is available from the evidence adduced that is consistent with guilt, it is a matter for the jury, properly instructed, not for the trial judge.

62. To put it simply, the court must take the prosecution evidence at its highest, that is, in its most favourable light: Re Attorney-General’s Reference (No 1 of 1983) [1983] 2 VR 410; Case Stated by Director of Public Prosecutions (SA) (No 2 of 1993) (1993) 70 A Crim R 323 (SASCFC); R v Morris (1997) 98 A Crim R 408 (WACCA).

Consideration

63. Section 192E(1) of the Crimes Act 1900 (NSW) provides:

A person who, by any deception, dishonestly:

(a) obtains property belonging to another, or

(b) obtains any financial advantage or causes any financial disadvantage,

is guilty of the offence of fraud.

64. “Deception” is defined in s 192B of the Crimes Act 1900 (NSW) in the following way:

(1) In this Part, deception means any deception, by words or other conduct, as to fact or as to law, including:

(a) a deception as to the intentions of the person using the deception or any other person, or

(b) conduct by a person that causes a computer, a machine or any electronic device to make a response that the person is not authorised to cause it to make.

(2) A person does not commit an offence under this Part by a deception unless the deception was intentional or reckless.

65. “Dishonest” is defined in s 4B of the Crimes Act 1900 (NSW) as:

“dishonest” means dishonest according to the standards of ordinary people and known by the defendant to be dishonest according to the standards of ordinary people.

66. Section 192D defines obtaining a financial advantage or causing a financial disadvantage in Part 4AA, including s 192E, in the following terms:

“(1) In this Part, obtain a financial advantage includes:

(a)  obtain a financial advantage for oneself or for another person, and

(b)  induce a third person to do something that results in oneself or 
 another person obtaining a financial advantage, and

(c) keep a financial advantage that one has, whether the financial advantage is permanent or temporary.

(2) In this Part, cause a financial disadvantage means:

(a)  cause a financial disadvantage to another person, or

(b)  induce a third person to do something that results in another person suffering a financial disadvantage,

whether the financial disadvantage is permanent or temporary.

67. Unlike the offences under s 192F of dishonestly destroying or concealing an accounting record with the intention of obtaining a financial advantage or s 192G of making or publishing a false or misleading statement with the intention of obtaining a financial advantage the offence under s 192E requires that both that a financial advantage be obtained and that it be obtained by deception: Duncan & Ors v the Independent Commission Against Corruption [2016] NSWCA 143 (“Duncan”) [349] – [350] per Bathurst CJ.

68. It is submitted on behalf of the accused that the case presented by the Crown is incapable of sustaining a conviction based on the counts charging an offence contrary to s 192E. The accused arguments are addressed in order.

Deception: The reference to ‘authorised’ in the indictment

69. As stated, there are 78 counts on the indictment which concern bets put on races of thoroughbred or greyhounds. They are worded in one of the two of the following ways:

Counts 1 – 5 as follows:

On about [DATE] in Sydney, New South Wales and elsewhere did by a deception, namely that he was [NAME OF ACCOUNT HOLDER] and was authorised to place a bet of [AMOUNT BET] through the [CORPORATE BOOKMAKER] account in the name of [NAME OF ACCOUNT HOLDER] of [ADDRESS OF ACCOUNT HOLDER][ACCOUNT HOLDER ID] on the [NAME OF ANIMAL] in [NAME OF RACE], dishonestly obtained a financial advantage from corporate bookmaker, namely the winning margin on the bet of [AMOUNT WON].

Counts 6 – 78 as follows:

On about [DATE] in Sydney, New South Wales and elsewhere did by a deception, namely that he was [NAME OF ACCOUNT HOLDER] and was authorised to place a bet of [AMOUNT BET] through the [CORPORATE BOOKMAKER] account in the name of [NAME OF ACCOUNT HOLDER] of [ADDRESS OF ACCOUNT HOLDER][ACCOUNT HOLDER ID] on the [name of animal] in [NAME OF RACE], dishonestly caused a financial disadvantage to corporate bookmaker, namely the payment of the Customer Profit/winning margin on the bet of [AMOUNT WON].

70. The argument that the Crown is required to establish the element of deception to prove both that the accused held himself out to be the named holder of the account and that he had the authority of the account holders to make bets of the account is rejected. The natural and common sense reading of the indictment does not support such an approach and the Crown did not open on this interpretation. Most importantly the assertion that both deceptions must be established is, as the Crown contends, internally inconsistent. If a person is putting themselves forward as the named account holder then they would not also be simultaneously asserting that they had the consent of the named account holder to use the account. The Crown case always incorporated the evidence that one named account holder at least, Ridgway, granted authority to the accused to use his account and on this basis their case was not ever put otherwise.

71. The plain reading of the indictment is that the relevant authority is that granted by the corporate bookmaker to the named account holder to open and operate an account. The deception alleged is that the accused, using the identities of the account holder/s held himself out at the relevant times to be those named persons who had the corporate bookmaker’s authority to operate the accounts.

The elements

72. Accordingly, the Crown must prove beyond reasonable doubt, that:

1. Mr Fletcher placed each of the 78 bets the subject of the charges.

2. Mr Fletcher acted deceptively in that he pretended to be the person named as the account holder of the betting accounts, authorised to place bets.

3. The particularised deception caused the pleaded financial advantage or financial disadvantage.

4. The obtaining of the financial advantage, or the cause of financial disadvantage in each case was dishonest within the meaning of s 4B of the Crimes Act 1900 (NSW).

The identity /authority deception

73. The operation of the terms and conditions and the approach taken by some traders as to the acceptance of bets placed from bowler accounts must be seen in the context of the whole case.

74. As noted by Beazley P in Duncan it is necessary to look at the whole picture when identifying deceptive conduct (at [504] – [505]). As set out in (RAWS [5]) the telephone calls concerning the bets laid on the account of Witness A indicate that the use of the Christian name was used as part of the identification of the person placing the bet as the account holder. These calls are perhaps the most stark examples of the alleged deception in action. Other examples are evident through the phone calls placed by Ridgway with Sportingbet and Bet365 and the accused using those accounts (as set out in RAWS [7] – [9]). The very use of a Personal Identification Number and a username are other indicators that despite exceptions, the user of the account was prima facie, meant and accepted to be the named account holder. Those calls provide powerful evidence to establish the process by which identity of account holder was ascertained. Whilst there was some evidence to contradict this, for the purpose of this application, the evidence must be considered at its highest.

75. As is set out at [14] above, consistent with a process to identify account users, the corporate bookmakers had a number of legitimate reasons why they required identification of the actual user of the account rather than just identification of the account. Other than a desire to retain profit by refusing or restricting the use of bowler accounts, there were the separate requirements including compliance with anti-money laundering and counter terrorism legislation, ensuring persons under the age of 18 and problem gamblers were identified, that required identification of user. The inference arising from the telephone intercept evidence is that the accused believed the identification process utilised by the corporate bookmakers restricted his ability to obtain wins on bets placed through other accounts. It was for that reason that he took trouble to hide his own operation of the subject accounts.

76. Taken at its highest, the entirety of the evidence paints a picture of the accused as the centre of an organised process developed specifically for the purpose of having corporate bookmakers allow him to place bets on races he would ultimately be to his financial advantage. To suggest otherwise, that he was simply using the accounts as an agent for others, or was legitimately only identifying himself as the account user not owner (as is argued to be allowed by the terms and conditions) is contradicted by the totality of the telephone intercept material and the overall circumstantial case. In the game of “cat and mouse” between the accused and the corporate bookmaker the accused stayed one step ahead, moving to the next “bodgy” once the bookmaker became suspicious that the user of the account was not the named account holder. The evidence, at its highest, suggests his planning was strategic and informed, and certainly capable of being found by the jury, as aimed to deceive.

77. Taken at its highest, it is open to the jury to convict on the satisfaction of the element concerning deception.

Causation

78. The third identified element of the offence charged requires that there be a causal connection between the deception underlying the fraud and the prohibited result (being the obtaining of a financial advantage or causing a financial disadvantage). The accused emphasises in argument the word “by” in s 192E(1). The representation that constitutes the deception must have the effect of deceiving the victim into willingly acting in a way that causes that result, being the financial advantage or the cause of a financial disadvantage.

79. Different descriptors have been given to the test as to the relationship between the deceit and the advantage. It has been said that it is necessary that the deception be the “material”, “substantial” or “effective” cause for the decision by the owner of a valued item to part with it. It does not matter if the accused may have got the benefit in another way. What is for consideration is whether the deception was causally linked to the actual financial benefit derived. If such a causal connection cannot be established then the accused is not guilty of the offence charged.

The issue of causation in gambling matters

80. The case law in respect of causation in betting and racing scenarios falls into what the text books refer to as “borderline causation cases” an acknowledged area of complexity. This is such a case.

81. The accused relies on the UK case of R v Clucas [1949] 2 KM 226 at 229 – 230 which appears to have specific relevance to this application. Clucas also involved the placing of a bet by a punter with a bookmaker with the appellants representing that they were commission agents and were putting bets on horse races on behalf of others when in fact they were making bets for themselves alone. The Court held that the effective cause of the financial benefit derived was not in fact the deception, but the fact the horse won the race. It was held (at 229 – 230) that it is:

…impossible to say that there was an obtaining of the money by the false pretences which were alleged, because the money was obtained not by reason of the fact that the people falsely pretended that they were somebody else or acting in some capacity which they were not; it was obtained because they backed a winning horse and the bookmaker paid because the horse had won. No doubt the bookmaker might never have opened an account with these men if he had known the true facts, but we must distinguish in this case between one contributing cause and the effective cause which led the bookmaker to pay the money. The effective cause which led the bookmaker to pay the money was the fact that these men had backed a winning horse…

82. A more subtle application of the notion of causal nexus is evidence in the case of Rex v Lewis (unreported), Somerset Assizes January 1922 where a woman obtained a post as a school mistress through a forged teacher’s certificate. It was ruled that she had not obtained her salary by false pretences as the salary was paid in return for her services.

83. On the other hand, cases on false statements made to secure entry into a sporting race have been decided against the accused where the person who entered the race had entered on false pretences as to their handicap and after having been granted entry into the competition, won the race and received the prize money: Button [1900] 2 QB 597; Lambassi [1927] VLR 349. In Lamrassi, McArthur J said (at 300):

Once it is admitted that there is evidence upon which the jury might find that the prisoner made the false representations with the fraudulent intention of thereby obtaining the prize, the only remaining question is whether there is evidence that the prize was in fact “thereby” obtained—that is to say, whether it was obtained as a direct result of the fraud. The prisoner may have intended and expected that the fraud would lead in a particular way to his obtaining the money—viz., that it would lead to his getting a favourable handicap which would enable him to win the race and thus obtain the money. But it is not necessary that the fraud should operate in precisely the way intended or expected by the prisoner. If in fact the fraud operated as a direct cause of the payment of the money, it is immaterial that the chain of causation was different from that which the prisoner intended or expected.

The prisoner’s nomination, as set out in the false entry form, was accepted by the officials of the club, and the prisoner thereupon became entitled (prima facie, at all events) to run. The representations contained in the entry form were, in our opinion (by necessary implication), continuing representations —Archbold (26th ed.), p. 714, and cases there cited.

And they were expressly reiterated in the declaration made and signed by the prisoner before running in the final heat. It was therefore clearly open to the jury, in our opinion, to find that it was on the faith of these representations that the prisoner’s nomination was accepted, and that he was allowed to run, and that the prize money was ultimately paid to him. Indeed, we think that on the declaration alone— coupled with Gilmour’s evidence, that but for the declaration he would not have paid the prize money to the prisoner—the jury would have been at liberty to have convicted the prisoner.

The fact that the money would not have been paid to the prisoner if be had not, by his own exertions, won the race is immaterial. It merely shows that it was not solely in consequence of the prisoner’s fraud that the money was paid to him, but partly in consequence of the fraud and partly in consequence of his having won the race. The fraud was a direct cause—though not the sole cause—of the money being paid to the prisoner. This point was raised on behalf of the prisoner in Reg. v. Button, (1900). 2 Q.B. 597, and decided against him. Mathew, J. (at p. 600), concludes his judgment on this particular point by saying—“The pretences which the prisoner made were “ not too remote.” (emphasis added).

84. The reconciliation of the different outcomes between these cases and Clucas and Lewis is not immediately apparent. One possible way of understanding the difference is that in both Button and Lambassi the offenders were personally able to play a role in effecting the outcome and achieving the win. Lambassi knew that he was likely to perform better than the other competitors, whereas in Clucas there was no established influence over the outcome as to which horse won the race. As stated in R v Harris; R v Turner [1963] 2 WLR 851, at 446 by Ashurst J (emphasis added):

“it is the fact of the horse winning that induces the bookmaker to pay the money; the false pretence may operate in the mind of the bookmaker but he would never pay unless the horse had won. It is the winning that is the effective cause of the obtaining and not the false representations.”

85. Whilst Clucas has been the subject of some academic criticism (C.R. Williams, Property Offences, Law Book Co., 3rd Ed, 1999, 159; G. Williams, Textbook of Criminal Law, Stevens, 1978, 751) it has been cited in a number of Australian contexts. In Gibbs v The Queen (1992) 58 SASR 347, Cox J with whom White ACJ and Mohr J agreed, cited Clucas in consideration of the principle as to whether the false pretence had to have a “substantial cause” or be the “effective cause” and not merely a “contributing cause” on the paying over of money. The point however was not ultimately decided in that case.

86. The Crown argues that Clucas is not good law in Australia and that a broader approach ought be followed. In R v King; R v Stockwell (1987) 1 QB 547, the Court of Appeal, upheld convictions entered in respect of a deception pertaining to a false reason put forward to a property owner as to why some trees required removal. The appellant argued that the causal link would have been the work done under the false pretence and not the gaining of the position (or opportunity) to do the job. In deciding to the contrary, the court took a different approach to Lewis and held that the question was whether the deception was the operative cause of obtaining the property and that this was to be answered as a question of fact by the jury applying their common sense.

87. Similarly, the Crown rely on Royall v The Queen (1990) 172 CLR 378 to allow for the jury to decide the question as to causation (Mason CJ at 387) by applying their common sense to the facts as they find them, and that the purpose of the inquiry is to attribute legal responsibility in a criminal matter (Deane and Dawson JJ at 411; Toohey and Gaudron JJ at 423).

88. More recently the reference to Clucas arose in Duncan (at [352]) within Chief Justice Bathurst’s judgment concerning causation. The context of the causation issue concerned the steps by the appellants towards a proposed sale of their shares in the company Cascade Coal to a public company, White Energy. The purpose of the conduct was said to be an attempt to remove the Obeid family involvement from a joint venture which potentially posed a risk to the value of the property and the likelihood of securing a potential mining lease. The appellants argued, inter alia, that the conduct was not corrupt within the meaning of s 8 (2)(e) of the ICAC Act because the conduct did not support the offence of dishonestly obtaining a financial advantage by deception pursuant to s 192E(1). The Chief Justice cited Clucas, amongst others, in support of the authority that the deception must be the means by which the money was obtained, as follows (at [352]):

It is well-established that the financial advantage must be obtained by the deception. In Ho and Szeto v R (1989) 39 A Crim R 145, the Court stated that what must be established is a causal connection between deception and the obtaining of the money, the deception must be the means by which the money was obtained or the effective cause of it being obtained: at 147; see also Clarkson v R [1987] VR 962 at 980; Flack v R [2011] NSWCCA 167 at [37]-[38]; R v Clucas [1949] 2 KB 226 at 229-230.

89. To complicate matters, there is a lack of clarity as to whether the other members of the court agreed with his Honour’s reasoning, or citation of the law, on this point. Beazley P (at [502]) whilst adopting the relevant paragraphs where his Honour made these observations, specified that her agreement with his reasons related to his findings on the issue of deception and did not address at that point, the issue of causation.

90. Bathurst CJ, who was in dissent on the issue of causation as it applied to the facts of the case, found that no financial advantage had resulted from the conduct said to be deceptive because the benefit to be derived from concealing the Obeid involvement in the tenement from either the government or the IBC had not crystallised: [364] – [366]. He found that the deception was too removed from the asserted benefit, and was not the “effective cause” of the money being obtained.

89. The judgment of Bathurst CJ in Duncan is instructive for the analysis of the case at hand as to what is to be considered as a “benefit” as opposed to a “financial advantage”. His Honour compared those cases where a dishonest act resulted in a benefit in the nature of an opportunity to apply for a position from which a financial advantage might be obtained in circumstances where the legislation referred to benefit rather than financial advantage: Moylan v Western Australia [2007] WASCA 52; 169 A Crim R 302. This approach was compared to R v Saba [2013] QCA where the Queensland legislation provided for an offence arising from a dishonest act that caused a benefit or advantage. In that case the deception led to a person being appointed a sole director of two corporations. The Court of Appeal of Queensland, in comparison to Moylan, found that whilst there may have been deceptive conduct it did not result in an advantage of itself, it was only a “step along the way towards gaining some unidentified advantage” (at [50 – [51]).

90. As stated, Beazley P found differently on the issue of causation. Her Honour found on the facts it was “open to the ICAC to be satisfied of such a connection”. Basten JA did not consider these issues in the same detail but ruled that the finding as to corruption stood in agreement with Beazley P on the basis of a finding pursuant to s 192E and s 192 D of the Crimes Act.

Causation: Did the corporate bookmaker rely on the identification of the account holder in allowing the bets: operative or contributing cause?

93. The accused argues that the deception played “no role” in either the telephone or internet bets because the provision of account information in placing telephone and bets via the website was not designed to identify the actual account holder but rather to ensure the correct account was being used to place the bet.

94. For the reasons set out above, the evidence at its highest is capable of supporting a finding that the deception in the identification of the account holder via both telephone and internet bets was the operating cause in obtaining the opportunity to bet (the obtaining of a financial advantage is dealt with below).

95. Even if there were exceptions to the rule about allowing account holders to place bets for others (in terms of some claimed “looseness” in the terms and conditions, or inconsistency in the operations of various traders) the circumstantial picture allows for an inference that the identity deception led to the benefit of placing a bet which led to the win.

96. In oral argument the accused encouraged the strict separation of deception from the causation issue. However, the circumstantial context establishing the lengths the accused went to, to utilise another’s identity in the operation of the accounts, and the checks and balances the bookmaker used to ensure the account was being used by the actual account holder (including telephone calls, closing accounts on suspicion) support the inference that it was the very deception as to identity that created the ability for the accused to place his bets on the races he wished to, and with no restrictions. The fact he kept doing it was a circumstantial indicator that his modus operandi was successful, and causative of the opportunity to bet.

97. The determination of the issue as to identity representations and the link to the asserted advantage, would be a matter for the jury, subject to what is found below.

Other possible causes to the advantage not arising from deception

98. Ho and Szeto v R (1989) 39 A Crim R 145 relied upon by the accused is noted. In that case the effective cause for both appellants was not the asserted deception, but rather a private arrangement that they had with their respective trading clients.

99. The accused submits that similarly, there were a number of impediments to the deception being the operative cause of the deception, namely the application of the minimum bet rule, factoring and price guaranteed product, as well as the indifference of some of the traders (at least at Sportingbet) as to whether an account was operating as a bowler account or not. All of these factors are relied upon by the accused to argue that there were a multitude of other reasons why the corporate book makers took the bet rather than any deception on behalf of the accused.

100. Consistent with Doney v R, Royall and R v King; R v Stockwell these could not result in a directed verdict. It is for the jury to determine whether any of these factors were the operating cause of the financial advantage, rather than any deception of the accused. Taken at its highest, this evidence is capable of establishing that the elements are made out to the requisite degree.

The operating cause: did the deception result in a financial advantage or simply a chance to win?

101. The issue concerning the role of the win resulting from a winning race however falls into a different category. What is a certainty, is that the financial advantage or disadvantage relied upon by the Crown and specified in each count in the indictment is the actual winning margin or customer profit resulting from the win on the race following the acceptance of the corporate bookmaker of a wager. The advantage relied upon is not the opportunity to bet.

Determination on causation as to opportunity or financial advantage

102. Section 192E of the Crimes Act 1900 does not talk in terms of “benefit”. As noted by Bathurst CJ (at [357]) the term “benefit” incorporates a wider concept than “financial advantage”. The operative cause of the accused’s deception was the provision of the benefit in terms of an opportunity to lay a bet. As a result of that opportunity the accused obtained a chance to win. Sometimes he won and sometimes he lost. The deception only allowed the accused to take a “step along the way” to the gaining of the financial advantage, even if that step may have been measured in hours, minutes or less.

103. This case gives rise to the argument as to whether this is a jury question and the application of common sense (as per King & Stockwell, and Royall). This distinction is more obvious when one considers the allowance made for the obtaining of a “benefit” in addition to, or in place of “financial advantage” by legislation in other states as considered in the cases of Moylan and Saba where the courts considered whether the opportunity to later obtain a financial advantage amounted to a “benefit” pursuant to the Western Australian legislation and the Criminal Code Qld respectively.

104. It is noted that Mr Clucas came before the court again for similar conduct: see R v Clucas & O’Rourke [1959] 1 WLR 244 in which Mr Clucas and Mr O’Rourke were charged with obtaining money by fraud in wagering under the Gaming Act 1845. In that case s 17 of the Gaming Act provided as follows:

Every person who shall, by any fraud or unlawful device or ill practice…in bearing a part in the stakes, wagers or adventures, or in betting on the sides or hands of them that do play, or in wagering on the event of any game, sport, pastime or exercise, win from any other person to himself, or any other or others, any sum of money…shall be deemed guilty of obtaining such money…from such other person by a false pretence.

105. At law, what the accused obtained by virtue of his deception was the benefit of an opportunity to potentially obtain a financial advantage. The financial advantage did not arise until the horse or dog he placed a bet on, won. Unlike Button or Lambassi there is no evidence the accused had any influence over that result. Causation as to financial advantage cannot be established on the evidence on any count.

106. Accordingly, I find that there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty on the offences as charged: Doney v R at 214 – 215; LK v The Queen at [29].

107. I will direct verdicts of acquittal in respect of the 78 counts on the indictment.

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Amendments

24 October 2019 - Cover sheet amended for case name to read "R v Fletcher"

Decision last updated: 24 October 2019