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

1. 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."

1. 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 to repay the $10,000 owed and that he would repay the said money later that day thereby causing the said Kim Mary Ackerley to input data into a Totalisator Board of Tasmania computer terminal which resulted in the recording of the acceptance of the said wager without the tendering of payment of money equivalent to the value of that wager."

1. The test relevant to that submission is that stated by the Court of Criminal Appeal in Ling v R [1981] Tas R 250 and the circumstances of this case do not require detailed consideration of those principles.

1. The essence of the Crown case is that the accused knowingly and dishonestly represented to an agent of the Totalisator Agency Board of Tasmania ("the Board") that he would provide sufficient money to be loaned to him by a named person, to repay the sum of $10,000 wagered by him through the Board, and that the agent recorded the wager as a result of that false representation.  The wager, ordinarily contractual in nature, could be described as a "credit bet".  The agent retained possession of the instrument  that evidenced the wager.

1. The Code, s252A, relevantly provides:

   "252A — (1)    Any person who by any deception dishonestly acquires for himself or for any other person any financial advantage is guilty of a crime."

2. No definition is provided for the term "financial advantage" but its meaning has been considered by the Court of Criminal Appeal in Murphy v R [1987] Tas R 178:

"The word 'finance' may cover, depending on context, inter alia, payment of a debt, or of compensation; a ransom; stock of money; borrowing of money at interest; the pecuniary resources of a state and, hence, of a company or individual; to engage in financial operations; to provide oneself with capital. (SOED).  The word 'advantage', inter alia, has the meaning of having the better of another in any respect; the result of a superior position; to benefit or profit."  Nettlefold J at 183.

This definition accords with that given to an identical term contained in the Crimes Act 1900 (NSW), s178(c)(1), by Miles CJ in Fisher v Bennett (1987) 85 FLR 469, when he stated at 472:

"I do not think that it is necessary to resort to dictionary definitions of the word 'financial' or the word 'advantage'.  I think that it is inescapable that an advantage involves a particular situation which is more beneficial to the person concerned than another relevant situation with which it is compared.  A financial advantage involves a situation which from the financial aspect is more beneficial than another situation.  When one speaks of obtaining a financial advantage by deception, there is imported in my view the notion of improving a financial situation by means of that deception."

1. The conduct of the accused would ordinarily constitute the obtaining of a financial advantage in that, if he was successful in his wager, the Board would be required to honour its contract unless it was aware of the deception.  However, the operations of the Board and the terms of the wager are governed by statute, namely the Racing and Gaming Act 1952, s57K, which relevantly provides:

   "57K—(1)       A bet shall not be accepted by a prescribed employee of the Board unless the person making the bet —

   (a)       deposits the amount of the bet in cash at a totalizator branch; or

   (b)       makes the bet by letter sent through the post or by telegram or telephone message received at a totalizator branch and the conditions set out in subsection (2) have been complied with.

   …

   (3)       No dividend shall be payable, nor shall any action, claim, or demand be allowed for or in respect of any bet placed or purporting to have been placed in violation of this section."

Thus, by virtue of statute, the agent was not authorised to accept the wager, nor, significantly, was the Board required to make any payment in the event of success.  Given that the agent retained the computer generated ticket, there is no evidence that the accused attempted to acquire any benefits of the wager.

1. Counsel for the accused contends there was not, and on the evidence could never be, any acquisition of a financial advantage, since no benefit could, in law, pass to the person making the representation.  Counsel for the Crown contends that, at least, the benefit obtained was an opportunity for chance without the passing of money to the agent.  The argument is circular and the dishonest state of mind of the person making the representation does not resolve the question.  Two persons, with equally dishonest intent, could attempt a wager. The first by placing the bet without representation and only later disclosing absence of money, and the second by making the representation.  In law, neither could receive a benefit.  Similarly, a person honestly believing that another would subsequently advance the money would likewise be precluded.  The test is either the actual receipt of the financial advantage by the agent making payment on the wager, or a potential benefit by way of contract.  This area of the law has long been one of difficulty (it has been described as a judicial nightmare (R v Royle [1971] 3 All ER 1359, Edmund Davies LJ at 1363)) and similar problems have been experienced in other jurisdictions (eg Debtors Act 1869 (UK), s13; Theft Act 1968 (UK) s516 and Crimes Act (Vic), s187(2)). In part the complexity arises because in many cases the deception is designed to evade a past debt or bring into existence a future contract or form of credit (R v Turner [1973] 2 All ER 828, cf Matthews v Fountain [1982] VR 1045). Further complications arise in relation to the distinctions between voidable, void and illegal debts.

1. In R v Leon [1945] 1 KB 136, the Court of Appeal was concerned with the interrelationship between the Debtors Act 1869 and the Gaming Act 1845.  The latter Act had made gambling debts null and void.  The appellant was a client of a betting agent who permitted wagers to be made up to an agreed credit limit with settlement to be effected each week.  The appellant continued to make bets, knowing that he could not effect settlement, and the jury found his conduct to have been fraudulent.  Although the Debtors Act, s13, referred to the obtaining of credit, the circumstances of this case involve the same concept, namely, the obtaining of moneys or a future contractual entitlement, in the event of a successful wager.  The appellant was successful in part since the betting losses were not debts because they were not enforceable at law.  The ratio in Leon was approved by subsequent courts of appeal in R v Garlick (1958) 42 Cr App R 141, and R v Clucas [1959] 1 All ER 438.

1. In R v Aston and Hadley [1970] 3 All ER 1045 the appellants went to a betting shop and handed a betting slip to the counter clerk. The slip was made out for a win on a particular race. The slip was processed and the bet recorded "on the till". As this was being done, one of the appellants, "proceeded to count the notes with extreme slowness", so that although the wager had been processed, the money had not been furnished and the race had begun. Since the initial broadcast of the race, transmitted within the betting shop, indicated a slow start by the offending animal, the appellant picked up the money and left the premises. He was charged with deception contrary to the Theft Act 1968, s16, which provides:

"A person who by any deception dishonestly obtains for himself or another any pecuniary advantage shall on conviction on indictment be liable to imprisonment …"

The appellant succeeded on grounds which are not here relevant.  In relation to their primary contention that there was no advantage because there was no debt, the Court of Appeal stated at 1047:

"Once the appellants had offered to place the bet and that offer had been accepted and its acceptance notified to the appellants, the jury could properly find that there was a debt, consisting of their obligation, by virtue of the agreement or arrangement made at their request, to hand over the stated stake money forthwith.  If the jury were satisfied that Mr Hine was, to the knowledge of the appellants, ready and willing to perform his obligation, namely to hand over the receipt concurrently with the appellants handing over the stake money, the fact that he had not actually handed over the receipt because the appellants were not carrying out their part of the bargain by handing over the money is irrelevant.  It does not prevent the existence of a debt because, if the dog from trap 1 had won, the betting shop, if it had proved dishonesty on the part of the appellants, might have been entitled to treat the whole transaction as avoided."

1. There was no evidence in this case that the agent was prepared to make payment in the event that the accused's wager was successful, and for that reason the authority of Aston does not assist the prosecution.  But there is a more fundamental distinction.  The Theft Act, s16(2)(a), provided:

   "any debt or charge for which he makes himself liable or is or may become liable (including one not legally enforceable) is reduced or in whole or in part evaded or deferred."

   In relation to which Megaw LJ said at 1047:

   "It is to be observed that, by the words of s 16(2)(a), the debt is not necessarily legally enforceable.  It was, in the view of this court, clearly open to the jury to find, having been correctly directed in this respect, that there was a debt."

1. The Code, s252A, contains no equivalent provision. No enforceable future debt or contract was created by the conduct of the accused. The dishonest conduct of the accused did not create an existing or potential enforceable benefit. Absent evidence from Kim Ackerley that, notwithstanding the provisions of the Racing and Gaming Act 1952, s57K(3), she would have paid out moneys in the event of a successful wager, there is no basis upon which a jury, properly instructed, could conclude that the accused received an advantage, either immediate or potential.  An essential ingredient of the crime has not been made out.

1. The Court has considered whether the provisions of the Code, s342, permit the jury to consider an alternate verdict of attempt.  However, the evidence establishes that the "betting ticket" was retained by the agent of the Board, and there is no evidence that the accused attempted to obtain payment.  It is not necessary to consider the implication of the Code, s2(4), and if the conduct of the accused could not have resulted in the obtaining of a financial advantage by his proven dishonesty, then, absent further proven conduct, it is not appropriate to leave the question of attempt, as an alternate verdict to the jury.

1. The submission that there is no case to answer in relation to the indictment, count 37, is upheld.  The accused will be put to his election in relation to the remaining counts.