R v Nicholas Oettinger - [2014] ACTSC 47

ACT SUPREME COURT

Case Title:	R v Nicholas Oettinger
Medium Neutral Citation:	[2014] ACTSC 47
Hearing Date(s):	5, 6 and 7 March 2014
DecisionDate:	7 March 2014
Before:	Murrell CJ
Decision:	Accused found: (1) Use false document – Not guilty (2) Attempt to obtain financial advantage by deception – Guilty
Catchwords:	CRIMINAL LAW – Using false document – accused provides quotation to insurance company in name of third-party for work done by himself CRIMINAL LAW – Attempting to obtain financial advantage by deception – accused provides invoice to insurance company in name of third-party for work done by himself
Legislation Cited:	Crimes Act 1900 (NSW) s 178C Criminal Code 2002 (ACT) ss 35, 38, 44, 300, 302, 325, 332, 344, 347 Evidence Act 2011 (ACT) s 184
Cases Cited:	Bradley v Lamborn [2013] WASC 30 Elias v The Director of Public Prosecutions [2012] NSWCA 302 Garry Ronald Fisher v Peter James Bennett [1987] ACTSC 27 Matthews v Fountain [1982] VR 1045 Peters v The Queen [1998] HCA 7 Re London and Globe Finance Corporation Ltd (1903) 1 Ch 728 SAJ v The Queen [2012] VSCA 243 Sayed v The Queen [2012] WASCA 17 Walsh v The Queen (1990) 52 A Crim R 80
Category:	PRINCIPAL JUDGMENT
Parties:	The Queen
Nicholas Oettinger
Representation:	Counsel Mr Jon White (Crown) Mr S Gill (Defendant)
Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi Lawyers (Defendant)
File Number(s):	SCC 54/2013

JUDGMENT

Introduction

On 29 July 2013 the accused elected to be tried by a judge alone. He filed a certificate from his legal practitioner stating that the practitioner had advised him in relation to the election and that he had made the election freely.

The accused pleaded not guilty to the following offences:

1.Between 8 and 17 October 2007 he used a false document, knowing that it was false, with the intention of (a) dishonestly inducing someone else to accept it as genuine; and (b), because that person accepts it as genuine, dishonestly obtaining a gain. This offence is contrary to s 347 of the Criminal Code 2002 (ACT) (Criminal Code).
2.Between 1 September 2007 and 1 September 2008 he attempted to commit the offence of dishonestly obtaining a financial advantage from someone else by deception, namely the Hollard General Insurance Company Pty Ltd (Hollard) trading as Real Insurance. By virtue of s 44 of the Criminal Code, this offence is contrary to s 332 of the Criminal Code.

I set out the principles of law that I apply and the findings of fact that I make for the purpose of arriving at a verdict.

The charges are being heard together as a matter of convenience. Each charge is to be considered separately and a separate verdict is to be returned on each of charge.

Onus and Standard of Proof

The prosecution has the task of proving the guilt of the accused beyond reasonable doubt. The accused is presumed to be not guilty of each charge unless and until…

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 R v Nicholas Oettinger

Details

AGLC: R v Nicholas Oettinger [2014] ACTSC 47
Case: [2014] ACTSC 47
Decision Date: 7 March 2014

CaseChat Overview and Summary

In the matter of the Commonwealth of Australia versus Nicholas Oettinger, the accused was charged with two criminal offences. The dispute centred on the accused's provision of an invoice to an insurance company in the name of a third party for work that he himself had performed. This act was alleged to constitute using a false document and an attempt to obtain a financial advantage by deception.

The legal issues before the court were whether the accused's actions amounted to using a false document and whether they constituted an attempt to obtain a financial advantage by deception. The central question was whether the act of billing an insurance company under the name of another individual for work performed by the accused constituted a false document. Additionally, the court had to determine whether this act demonstrated an attempt to obtain a financial advantage through deception.

The court concluded that the act of invoicing an insurance company in the name of another person for work performed by the accused did not constitute a false document under the relevant statute. However, the court found that the accused's actions did amount to an attempt to obtain a financial advantage by deception. The court reasoned that the accused's intention to deceive the insurance company by billing for work performed under someone else's name clearly demonstrated an attempt to gain a financial benefit through deception.

The accused was found not guilty of using a false document but was found guilty of attempting to obtain a financial advantage by deception. The court ordered the recording of the accused's conviction for the latter charge.

Orders

Orders of the court

Accused found:

(1) Use false document – Not guilty

(2) Attempt to obtain financial advantage by deception – Guilty

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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