R v Rosar, Gunter Eddie - [1999] TASSC 7

[1999] TASSC 7

PARTIES:  R
  v
  ROSAR, Gunter Eddie

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  289/1996
DELIVERED:  5 February 1999
HEARING DATE/S:  4 February 1999
RULING OF:  Slicer J

Edited edition of ruling delivered orally.

CATCHWORDS:

Criminal Law - Particular offences - Property offences - False pretences and other frauds and impositions - Obtaining by deception - Meaning of "financial advantage" - Criminal Code (Tas).

Criminal Code 1924 (Tas), s252A.
Racing and Gaming Act 1952, s57K.
Murphy v R [1987] Tas R 178; Fisher v Bennett (1987) 85 FLR 469; R v Aston and Hadley [1970] 3 All ER 1045; R v Leon [1945] 1 KB 136, followed.
Aust Dig Criminal Law [253]

REPRESENTATION:

Counsel:
             Accused:  T J Ellis
             Crown:  M P Shirley
Solicitors:
             Accused:  Ian Guest and Associates
             Crown:  Director of Public Prosecutions

Judgment category classification:
Judgment ID Number: [1999] TASSC 7
Number of pages: 4

Serial No 7/1999
File No 289/1996

THE QUEEN v GUNTER EDDIE ROSAR

REASONS FOR RULING DELIVERED ORALLY SLICER J

5 February 1999

The accused has been indicted with forty-three counts of dishonestly acquiring a financial advantage or attempting to do so contrary to the Criminal Code, s252A. The only evidence adduced on his trial has been by way of an assertion of facts made by Crown counsel to the jury which have been admitted by counsel for the accused pursuant to the Evidence Act 1910, s109. Those facts state:

"1 That on the 9^th day of April 1996 the accused at the Wynyard agency for the TAB falsely represented to Kim Mary Ackerley the agent for the TAB that Mr Royston Ringrose had agreed to loan him money and that he would that night pay such money to Kim Mary Ackerley.
2 That Mr Rosar knew that the representation was false and acted dishonestly in making it."

That as a result of that representation referred to in pars1 and 2:
"3 Kim Mary Ackerley then accepted a $10,000.00 bet without Mr Rosar depositing that amount in cash or otherwise and at the direction of Mr Rosar inputted the information relevant to that bet into the TAB computer system resulting in the recording by the system of that bet including the printing of a betting ticket.
4 That Kim Mary Ackerley retained the TAB computer generated ticket which was a record of the bet."

At the conclusion of the Crown case, the accused has submitted that there is no case to answer in relation to count 37 of the indictment which alleges:

"GUNTER EDDIE ROSAR at Wynyard in Tasmania on the 9^th day of April 1996, dishonestly acquired for himself a financial advantage, by evading his requirement to pay in cash the sum of $10,000 to the Totalisator Board of Tasmania by placing a wager with the Totalisator Agency Board of Tasmania through its agent Kim Mary Ackerley and by falsely representing to the said Kim Mary Ackerley that he had sufficient funds…

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.

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Details

Case: [1999] TASSC 7
Decision Date: 5 February 1999

CaseChat Overview and Summary

In the Supreme Court of Tasmania, the case of The Queen v Gunter Eddie Rosar involved the accused being indicted on forty-three counts of dishonestly acquiring a financial advantage, or attempting to do so, contrary to the Criminal Code, section 252A. The facts of the case, as admitted by the accused, involved the accused falsely representing to an agent of the Totalisator Agency Board of Tasmania that he had sufficient funds to repay a $10,000 wager. As a result, the agent accepted the wager without receiving the full amount in cash, and inputted the relevant information into the TAB computer system.

The legal issue before the court was whether the accused's conduct constituted obtaining a financial advantage by deception. The court considered the definition of "financial advantage" in the context of the statutory framework governing the operations of the Totalisator Agency Board of Tasmania. The court held that, under the Racing and Gaming Act 1952, section 57K, the agent was not authorised to accept the wager and, significantly, the Board was not required to make any payment in the event of success. The court found that, absent evidence that the agent would have paid out moneys in the event of a successful wager, there was no basis upon which a jury could conclude that the accused received an advantage, either immediate or potential.

The court further considered whether an alternate verdict of attempt could be considered, but found that the evidence established that the "betting ticket" was retained by the agent of the Board, and there was no evidence that the accused attempted to obtain payment. The court held that the submission that there was no case to answer in relation to count 37 of the indictment was upheld.

The court's reasoning and outcome in this case highlights the importance of understanding the statutory framework governing the operations of the Totalisator Agency Board of Tasmania, and the need for evidence of an enforceable future debt or contract in order to establish the obtaining of a financial advantage by deception. The accused will be put to his election in relation to the remaining counts.

Orders