R v Galletta

[1989] TASSC 136

Serial No B58/1989
List “B”

COURT:  SUPREME COURT OF TASMANIA

CITATION:              R v Galletta [1989] TASSC 136; B58/1989

PARTIES:  R
  v
  GALLETTA

FILE NO:  C 254/1989
DELIVERED ON:  14 December 1989

JUDGMENT OF:  Crawford J

Judgment Number:  B58/1989
Number of paragraphs:  17

Serial No B58/1989
File No C 254/1989

THE QUEEN v GALLETTA

RULING GIVEN IN COURSE OF TRIAL  CRAWFORD J

14 December 1989

REASONS PUBLISHED  15 December 1989

1. The accused is charged in the indictment with obtaining goods by a false pretence, the particulars being that he "with intent to defraud obtained from the Tasmania Bank a cheque for the sum of $2100 by falsely pretending that he was entitled to the said money". The Crown case has closed and it has been submitted for the accused that he has no case to answer on the ground that there is insufficient evidence upon which a jury, properly directed, could be satisfied that the accused made the false pretence alleged. It was further submitted that there was insufficient evidence upon which the jury could be satisfied that the person who drew the cheque did so because of the false pretence.

1. The evidence from witnesses was very brief and it was supplemented by facts admitted under s109 of the Evidence Act 1910 and by a Statutory Declaration received by consent under s113A.

1. A summary of the evidence is as follows. The accused had a savings account with the Tasmania Bank at its Charles Street branch. At the commencement of business on 21 April 1989, the account had a credit balance of 43 cents and his passbook recorded that fact. Later that day a deposit was made to the account at the 79 St. John Street branch with a cheque of the Department of Social Security in the sum of $210.60. As a result the accused had a credit of $211.03. However a bank employee made a mistake when recording the amount of the deposit, as a result of which it was recorded in the passbook as $2310.60 and the recorded credit balance as being $2311.03. Later again on that day the accused withdrew from the account $210 as a result of which his passbook had recorded in it a credit balance of $2101.03, whereas if the original mistake had not been made it should only have had recorded that there was a credit of $1.03.

1. On the following day, a Saturday, the accused looked at the passbook and became aware of the error which had been made. He discussed the position with two acquaintances and decided that he would endeavour to take advantage of the mistake before the bank realised what had occurred.

1. On the next day, the Sunday, he went with the same two acquaintances to the business premises of Mr and Mrs Foggo at Ravenswood. They were agents for the Tasmania Bank. The evidence showed that if a customer of the bank presented to the Foggos a passbook and a withdrawal form, with a desire to withdraw money from his account, the Foggos had to trust the credit balance recorded in the passbook. They were not connected by computer to the bank and could not check whether in fact the passbook's record was correct.

1. The accused first spoke to Mr Foggo and requested a cash withdrawal. Mr Foggo told him that he could not have cash but he could have a cheque. Shortly afterwards Mrs Foggo took over the handling of the matter.

1. The evidence of Mrs Foggo was that the accused presented the passbook to her with a withdrawal form made out for the sum of $2100 which appeared to be signed by the accused. She looked at the passbook and saw that it recorded a credit of $2101 and a few cents. She drew a cheque for cash in the sum of $2100 and gave it to the accused. The following is a passage from the evidence of Mrs Foggo concerning what induced her to do so:—

"Now, can you tell us what induced you to make out that – or draw that cheque in the sum of $2100, what information did you rely on in deciding that it was alright to make out a cheque? ... Well the amount in his cheque (sic) book seemed to be ok.

Yes, and was there anything else that you?....... And the amount on his withdrawal was – matched in there ... the amount on his withdrawal form matched what was in the book .... there was enough in his book to cover the withdrawal.

Now I just want to take that a little bit further. This is a hypothetical question but had the bank passbook showed a credit of say $200 and he handed you a withdrawal form seeking to withdraw $2100 would you have drawn a  cheque for $2100?

........ No, I wouldn't".

1. Subsequently the accused made unsuccessful efforts to cash the cheque, but eventually it was paid into the Westpac Bank account of one of his acquaintances and the cash was withdrawn from that account.

1. In so far as the charge of obtaining goods by a false pretence is concerned, I am satisfied that the accused has no case to answer for a reason other than those advanced by counsel. The indictment alleges that the accused "obtained from the Tasmania Bank a cheque for the sum of $2100". For the purposes of this crime, s249 of the Criminal Code provides that the word "'Obtain' means an obtaining by the offender from the owner, with an intent on the part of the offender to deprive the owner permanently and entirely of the thing obtained ....." The evidence is clearly insufficient to establish that the accused intended to deprive the bank "permanently and entirely" of the cheque. What he wanted was $2100. He was forced to take a cheque for that sum and he therefore had to exchange that cheque for $2100 in cash wherever he could achieve such a purpose. There was evidence that he intended to deprive the bank of the sum of $2100, but what is charged against him is that he obtained the cheque and the jury could not be satisfied that he intended to permanently and entirely deprive the bank of it. If he obtained the cash the cheque would have had to be returned to the bank eventually.

1. Section 250 states that one of the elements of the crime is the obtaining of "anything capable of being stolen" and s227 provides that every moveable thing which is the property of any person is capable of being stolen. A cheque is a moveable thing but the chose in action it represents is not moveable property and is not capable of being stolen. This is clearly the position under the Code. It is[i] also the position at common law.

1. I am therefore of opinion that the accused has no case to answer to the charge of obtaining goods by a false pretence because there is insufficient evidence upon which the jury could find that he obtained the cheque with an intent to permanently and entirely deprive the owner of it. In so far as this particular crime is concerned, it is therefore unnecessary for me to rule on the grounds for the submission of no case advanced by counsel for the accused.

1. Section 338 of the Code provides that upon an indictment for obtaining property by a false pretence the accused person may be convicted of that crime or of stealing, cheating, dishonestly obtaining a financial advantage and receiving stolen property. Counsel for the Crown and the accused agreed that the crimes of cheating and receiving stolen property were not open, but it is necessary for me to consider the alternative crimes of stealing and dishonestly obtaining a financial advantage.

1. Counsel for the accused submitted that in so far as the crime of stealing is concerned, I should not allow the jury to consider it because of the authority of Marshall v Szommer, Serial No 57/1989. In that case I held that there was no case 'for a defendant to answer on a charge of stealing because there was insufficient evidence upon which it could be found that money had been obtained "without the consent of the owner thereof". Care should be taken when comparing the circumstances of that case with the circumstances of this case. In Marshall v Szommer there was almost no evidence explaining how the defendant had managed to obtain money from the bank. The evidence indicated that he used a withdrawal form, but that document was not tendered and there was no other evidence of what occurred when he attended at the bank to make the withdrawal. In any event I do not have to consider the authority of that case, because I hold that there is insufficient evidence upon which the jury could find the accused guilty of stealing the cheque for the same reason I have held that there is insufficient evidence on the charge of obtaining goods by a false pretence. The evidence is insufficient to satisfy the jury that the accused intended to permanently deprive the bank of the cheque itself, and that is an ingredient of the crime of stealing. (See s226(1) of the Criminal Code).

1. Finally I turn to the alternative crime of obtaining a financial advantage. Section 252A of the Code provided at the relevant time that any "person who by any deception dishonestly obtains for himself or for any other person any financial advantage is guilty of a crime". Subsection (2) provided that "'deception' means any deception (whether deliberate or reckless) by words or conduct as to fact or as to law .... " Counsel for the accused conceded that the obtaining of a bank cheque made out to cash would be the obtaining of a financial advantage and in my view that is correct.

1. The question which arises for my determination is whether the jury could be satisfied on the evidence that the accused obtained the financial advantage by a "deception". It seems to me that the argument for the accused is put at its strongest by saying that the accused did not deceive Mrs Foggo at all. He gave her his passbook which had recorded in it that there was a credit balance in the sum of $2101.03. That is what it stated and there is no evidence that he told Mrs Foggo that it was correct. It was submitted that the jury could only be satisfied that Mrs Foggo acted on the faith of the bank's own record, that is to say the record of the credit balance as contained in the passbook, and was not deceived by anything the accused said or did.

1. I do not accept the submission. It is clear that the accused knew that the credit balance recorded in his passbook was wrong and had come about because of an error made by the bank. He made a decision to try and take advantage of that error. The jury is entitled to conclude that the accused knew full well that if his passbook had correctly recorded that his credit balance was $1.03, Mrs Foggo would not have given him a cheque for $2100. They can also be satisfied that the accused knew that unless he gave Mrs Foggo the passbook, which incorrectly indicated the amount to which he was entitled, he would be unsuccessful in obtaining such a cheque. On the evidence the jury may well conclude that the accused acted dishonestly, and deliberately passed over the passbook containing the false record with a view to causing Mrs Foggo to believe that he was in fact entitled to $2100. In my view the jury could conclude that this was a deception on the part of the accused. That the accused did so deceive Mrs Foggo by words or conduct is a question of fact. The jury will need to infer that such a deception occurred. In my opinion it is reasonably open for the jury to draw such an inference.

1. I therefore overrule the submission of no case to answer because the jury could convict the accused of one of the crimes which are alternative to the crime charged in the indictment.

tasInLaw edit: the Judgment has "is is".

Press ESC to exit Popup