R v Gauci

[1995] QCA 228

IN THE COURT OF APPEAL [1995] QCA 228

SUPREME COURT OF QUEENSLAND	C.A. No. 495 of 1994
Brisbane
Before	Fitzgerald P. Pincus J.A. McPherson J.A.

[R. v. Gauci]

T H E Q U E E N

v.

GEORGE GAUCI	(Appellant)
Fitzgerald P. McPherson J.A. Pincus J.A.

Judgment delivered 13/06/95

Joint reasons for judgment by McPherson & Pincus JJ.A. Separate concurring reasons by Fitzgerald P.

APPEAL AGAINST CONVICTION DISMISSED.

CATCHWORDS	CRIMINAL LAW - CONVICTION - CHEATING - Section 429 of the Criminal Code - Whether Crown required to prove that false invoices were the only cause of payment of greater sum than should have been paid - "but for" - Similarities to offence of obtaining by false pretences (Code s.427) - R. v. English (1872) 12 Cox C.C. 171; R. v. Lambassi [1927] V.L.R. 349; and R. v. Patmoy (1944) 45 S.R. (N.S.W.) 127.
Counsel:	G.J. Radcliff, with him M. Savic, for the appellant L. Clare for the respondent
Solicitors:	Robinson, Robinson & Downing for the appellant Director of Public Prosecutions for the respondent

Hearing Date:29 May 1995

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 13/06/1995

The circumstances giving rise to this appeal are generally set

out in the joint judgment of McPherson and Pincus JJ.A. It is necessary for my purposes only to add that Angsea's requests to Lensworth for payment included both claims in respect of the

fraudulent invoices for the supply of filling by Wade and other

legitimate claims in respect of other work and services.

The fraudulent invoices were the "means" by which Lensworth was

induced by the appellant to pay to Angsea a greater sum of money

than it would have paid "but for" the fraudulent invoices; the

fraudulent invoices operated directly on the mind of the

Lensworth employee who authorised the payments and also directly

induced the valuer's reports which were the only other factor

which influenced that Lensworth employee.

In my opinion, these circumstances are squarely within the

operation of s. 429 of the Code: cf. the authorities referred to by McPherson and Pincus JJ.A. concerning s. 427. The appeal

should be dismissed.

REASONS FOR JUDGMENT - McPHERSON & PINCUS JJ.A.

Judgment delivered the 13th day of June 1995

The appellant was convicted in the District Court at

Southport of four counts of cheating contrary to s.429 of the

Criminal Code. Each count charged that between specified dates

in 1989 he had by means of a fraudulent device induced Lensworth

Properties Pty. Ltd. to pay to Angsea Investments Pty. Ltd. a

specified sum of money, being a greater sum than Lensworth would

have paid to Angsea but for such fraudulent device.

The prosecution of the appellant under s.429 was a sequel

to his acquittal on appeal in R. v. Gauci [1995] 1 Qd.R. 296 of

charges laid under s.408C(1) and the present proceedings arise out of much the same or related circumstances. The evidence at the appellant's trial in this instance showed that he was

involved in a joint venture project with a Mr Kenny to develop land at Labrador using money borrowed by Angsea from Elders

Lensworth Finance Ltd. The land required filling and an

agreement (ex. 6) was entered into with a man named Wade for the supply of quarry material in order to fill the land. In respect of the material delivered to the site written invoices were periodically submitted to Angsea, which passed them on to

Lensworth for payment to be made to Angsea out of the money

agreed to be lent.

Each of the four counts in the indictment relied on a

particular payment made by Lensworth of the amount of an invoice

for filling material supposed to have been delivered. In fact,

as the prosecution evidence at the trial established, all four invoices were false in that the quantities of fill specified in

each instance were never delivered to the site. Wade was not paid for them, but Angsea received the money from Lensworth and

kept it. Of those four invoices, the first (ex. 12) was not

signed by Wade; the second (ex. 18) and the third (ex. 22) bore signatures that were forged; and the fourth (ex. 27) was signed by Wade on the appellant's representation that he required it

for some income tax purpose, but which the appellant later told

Wade he had in the end decided not to use it for.

At the trial the appellant gave evidence that he did not

know the invoices were false, implying that the responsibility

for their fabrication rested with Kenny or someone else. By

returning their verdicts of guilty, the jury must be taken to have rejected this suggestion. The appellant was given leave to amend his notice of appeal to argue that the prosecution had failed to prove that Lensworth had been induced by the false

invoices to make the payments in question to Angsea, and that

the trial judge ought therefore to have taken the case from the

jury.

In order to follow the point being made it is necessary to
set out the terms of s.429 of the Code:
"Cheating. Any person who by means of any fraudulent trick

or device obtains from any other person anything capable of being stolen, or induces any other person to deliver to any person anything capable of being stolen, or to pay or deliver to any person any money or goods, or any greater sum of money or greater quantity of goods than he would have paid or delivered but for such trick or device, is guilty of a misdemeanour ....".

The submission on appeal was that the expression "by means of"

required proof by the Crown that the false invoices were the only means or the sole inducement causing Lensworth to pay to Angsea a greater sum of money than it would otherwise have paid

"but for" the trick or device which those invoices represented. In our view there is nothing in s.429 to justify such an

interpretation of the section. In verbiage and effect, it bears

obvious similarities to the offence of obtaining by false pretences (Code, s.427), where the settled rule is that the

pretence need not have been the only influence operating on the

complainant's mind. See R. v. English (1872) 12 Cox C.C. 171, 172; R. v. Lambassi [1927] V.L.R. 349, 353-354; R. v. Patmoy

(1944) 45 S.R. (N.S.W.) 127, 131. There is no reason why s.429

should receive a different construction.

It is clear that in the present case it was in fact the

false invoices that induced Lensworth to make the payments in

question. Lensworth did, it is true, employ a firm of valuers

Herron Todd White to value the work at the site from time to

time as it progressed. So far as can be gathered from a letter

from Angsea forming part of ex. 53, this involved at least one

inspection of the site by a Mr Herbert of that firm in the

company of the appellant. However, both in the accompanying letter of valuation delivered by Herron Todd White on each

occasion, and in the evidence of Mr Herbert at the trial, the valuers were at pains to stress the limited extent of their involvement. They were not, Mr Herbert said, quantity surveyors

having no expertise in that field. His evidence was that Angsea

provided copies of the invoices and Herron Todd White

"basically" relied on those documents to be true and correct, although on two or three occasions he "randomly" telephoned the supplier to confirm the invoices. No measurement of the placed fill was carried out, and the jury would have been entitled to infer that the appellant knew how little checking there was of

the material on site.

For present purposes, however, the question is not what the valuers did, but what induced Lensworth to make payment to Angsea. At the trial a Mr Swan, formerly a senior manager with

Lensworth, gave evidence that it was his function to consider

the claims put in by Angsea and to authorise payment of them.

The appellant emphasised his evidence that the valuers were

employed to assess every claim "and by and large it was the valuer's report that was relied upon in making the payment". However, Mr Swan also said, not once but on three occasions in

his evidence, that he would not have approved payment of the

money involved in an invoice or claim by Angsea if he had known that the invoices, or the documentation based on them, were in

fact false.

It would have been astonishing if that were not so, and the

jury were plainly entitled to act on Mr Swan's evidence to that

effect. It went to prove that Lensworth paid Angsea a greater sum of money than it would have paid "but for" the fraudulent device of the fabricated invoices, which was the "means" by

which the payments were obtained.

The appellant was on the evidence at his trial rightly convicted of all four charges under s.429, and his appeal should be dismissed.