R v Uebergang

[1998] QCA 19

IN THE COURT OF APPEAL	[1998] QCA 019
SUPREME COURT OF QUEENSLAND

C.A. No. 398 of 1997

Brisbane

[R. v. Uebergang]

THE QUEEN

v.

COLIN UEBERGANG

Appellant

Davies J.A.
McPherson J.A.

Moynihan J.

Judgment delivered 27 February 1998

Separate reasons for judgment by each member of the Court, each concurring as to the orders made.

APPEAL AGAINST CONVICTION ALLOWED. CONVICTION SET ASIDE AND

VERDICT OF ACQUITTAL ENTERED.

CATCHWORDS:	CRIMINAL LAW - false pretences - whether sufficient evidence of a pretence that wheat "complied with" a specified standard - whether jury properly directed as to the evidence upon which they could conclude that the pretence was made - whether false pretence alleged induced the payment of money.
Counsel:	Mr. T. D. Martin S.C. for the appellant Mr. D. L. Bullock for the respondent
Solicitors:	Terry Fisher & Co. for the appellant Director of Public Prosecutions (Queensland) for the respondent
Hearing Date:	12 February 1998
REASONS FOR JUDGMENT - DAVIES J.A.

Judgment delivered 27 February 1998

On 11 September 1997, after a trial lasting four days, the appellant was acquitted on two counts of false pretences and convicted on one count of false pretences. The count in which he was convicted was in the following terms:

"AND FURTHER that on or about the 26th day of November 1991 at Goondiwindi and elsewhere in the State of Queensland you by partly falsely pretending to one Matthew Bradshaw and others that farming practices at Mt Carmel prior to certification complied with the requirements for National Association for Sustainable Agriculture Australia Limited level A certification and to others that farming practices at Mt Carmel prior to certification complied with the requirements for National Association for Sustainable Agriculture Australia Limited level A certification and partly by falsely pretending to one Alfred Matthias Brunner that a crop of wheat grown at Mt Carmel complied with the National Association for Sustainable Agriculture Australia Limited level A certification standards induced the Uncle Toby's Company Pty Ltd to deliver to the Westpac Banking Corporation a sum of money namely $278,250 with intent thereby then to defraud".

It can be seen that the count alleged two false pretences. The jury were told by the learned trial Judge that they could convict on that count if they were satisfied to the required standard that either of the false pretences alleged induced the Uncle Tobys Company to deliver the money to Westpac. The jury, by its verdict, did not indicate whether it was so satisfied in respect of either or both false pretences. However it was common ground before this Court that, in view of acquittals on the two other counts of false pretences, in order to sustain a conviction on this count, the jury had to be satisfied with respect to the false pretence alleged to be made to Brunner. The pretence referred to in the count to Matthew Bradshaw was alleged to have been made to him, as an officer of NASAA, to induce the certification referred to. It was common to all three counts.

The appellant's notice of appeal against conviction contained 17 grounds. In the end only five of these were pursued. They were:

"4.	The Trial Judge erred by not allowing cross examination by Defence Counsel and ruling as remote and irrelevant matters relating to the purchase, transport, storage, grading, certification and production of a crop of wheat purchased from Mount Carmel, by the complainant company Uncle Tobys in 1992 and processed in 1993.
Such ruling preventing cross examination of issues relating to the element of inducement and relevant to the culpability.
5.	The learned Trial Judge failed to allow cross examination of Uncle Tobys organic product management in years subsequent to the offence, such matters being relevant to the culpability of the Appellant.
...
8.	The Trial Judge erred by misdirecting the jury and allowing Crown Counsel to misdirect the jury as to the evidence concerning:
• the existence of a prohibition upon the Appellant from purchasing or storing chemical on Mount Carmel; • the removal of a boom spray from Mount Carmel.
...
11.	The Trial Judge failed to provide any warning to the jury as reliance upon the evidence of indemnified witnesses, or witness receiving benefit by their providing statements against the interest of the Appellant.
...
17.	In all the circumstances the conviction is against the weight of evidence and is unsafe."

At the outset of oral argument the Court asked Mr. Bullock for the respondent to indicate the evidence relied on to prove the pretence to Brunner and the directions of the learned trial Judge with respect to proof of this pretence. This led to an application by the appellant's counsel to add two further grounds of appeal, which I will call grounds 18 and 19, in the following terms:

"18.	That there was no evidence or no sufficient evidence to prove the pretence alleged to be made to Brunner.
19.	That the learned trial Judge failed to properly direct the jury as to what was necessary to prove beyond reasonable doubt the pretence alleged to Brunner."

There being no objection, leave was granted to add those grounds.

At material times the appellant, through a family business, owned and operated a mainly wheat farm, of about 9,000 acres, known as Mt. Carmel near Goondiwindi. Brunner was the grain procurement manager for the Uncle Tobys Company. He had the authority of that company to enter into contracts for the purchase of grain by the company. The company manufactured a breakfast cereal biscuit called Vita-Brits and at the relevant time marketed Vita- Brits with a certification of the National Association for Sustainable Agriculture Australia Limited that the grain used for Vita-Brits biscuits met its specification for organically produced grain. The company paid a premium for organically produced grain which could be used in the manufacture of Vita-Brits biscuits carrying that certification. It was undisputed in this appeal that the sum of $278,250 referred to in the count on which the appellant was convicted contained such a premium and was paid on the date specified in the count on Mr. Brunner's authorization. Mr. Brunner said that if the wheat which the Uncle Tobys Company purchased in exchange for the sum of $278,250 had not complied with NASAA level A standards the company would not have entered into the contract to purchase it which it did.

It is convenient to consider first the grounds of appeal which were added by leave.
As already indicated, the pretence alleged to Brunner was that a crop of wheat grown at

Mt. Carmel complied with the National Association for Sustainable Agriculture Australia Limited level A certificate standards. When asked to identify the evidence of this pretence Mr. Bullock for the respondent relied primarily on a letter from the appellant to the Uncle Tobys Company of 5 November 1991. The letter was headed "ORGANIC WHEAT" and in its first paragraph stated:

"We are nearly finished harvesting and estimate 2,100 tonnes of Hartog and 500 tonnes of Sunco/Banks in equal proportions. Total estimated tonnage available is 2,600 tonnes. This wheat is certified by NASAA as level 'A' Organic."

The letter went on to describe other characteristics of the wheat, to state how it would be stored, graded and cleaned and to offer to sell it at a specified price.

As was pointed out during the course of argument, the letter did not, at least in terms, pretend that the wheat complied with the NASAA level "A" standard. It said no more than that it was certified by that body as having that standard. It was common ground that that was in fact correct.

It is not entirely clear what the requirements were for compliance with the NASAA level "A" standard but it seems that they included the land on which the relevant crops were grown being free of proscribed chemicals for at least two years. In the absence of greater specificity what had to be proved was not a pretence to Brunner that in each of specific requirements the wheat complied with the NASAA level A certification standards but a general pretence that it did.

Mr. Bullock for the respondent accepted that the letter of 5 November 1991 could not alone constitute that pretence for the reason already mentioned. However he submitted that in the light of some evidence of what occurred before that date, or together with that evidence, it constituted such a pretence.

There was evidence from which the jury could have inferred that the appellant claimed that this wheat was "organic wheat", whatever that term means. His conversations with Mr. Brunner, referred to below, together with the heading of the letter of 5 November, would permit that inference. But that is not what is alleged against him. In order to prove the pretence specified in the count, Mr. Bullock referred us to statements made by the appellant to Mr. Fudge, another officer of the Uncle Tobys Company, and to Mr. Brunner.

Approximately a year before the letter of 5 November 1991 the appellant told Mr. Fudge, an officer of the Uncle Tobys Company, that he had about 2,000 tonnes of organic wheat and asked if the company would be interested in purchasing it. Mr. Fudge told him that the company would be interested but that there were certain conditions that would have to be fulfilled, the major one being that the grain would have to be certified by NASAA before the company would even look at purchasing it.

There are several reasons why the appellant's statement to Mr. Fudge does not assist in proof of this pretence. The first I have already adverted to. At no stage did the appellant say what he meant by the term "organic" (he did not give evidence at the trial) and there was no evidence that the term had an accepted meaning in the trade; and there was no evidence as to what the requirements were for NASAA level A certification. Secondly it is not at all clear that this statement related to the crop the subject of count three. And thirdly there is no evidence that Mr. Brunner was aware of this statement.

Mr. Bullock then referred us to a conversation between the appellant and Brunner on a date which is unclear but appears to have been some time before 23 January 1991. In it the appellant told Brunner that he was in a position to sell to Uncle Tobys some wheat certified by NASAA as organic wheat. It appeared from that conversation that it had not yet been so certified. This was followed by a letter from the appellant to Brunner of 23 January 1991 forwarding a sample of that wheat, indicating that he would advise Brunner when he had received the notification of compliance from NASAA, advising some other matters about the handling and cleaning of the wheat and asking for advice as to Uncle Tobys' intention to purchase it.

There is nothing in either the telephone conversation or the letter of 23 January which followed it which expressly asserted compliance of the wheat with the NASAA level A certification standards. However, from his statement to Mr. Brunner and the statement in the letter of 23 January it could be inferred that the appellant was asserting that the wheat complied with those standards.

That was the sum total of the evidence relied upon by Mr. Bullock to found the pretence that the wheat sold by the appellant to the Uncle Tobys Company, the subject of count 3, complied with the NASAA level A certification standards. The need for the jury to be satisfied to the requisite standard of this element of the count, and consequently the need for them to be directed to this element and to the evidence which went to it does not seem to have been adverted to by counsel on either side at the trial or on appeal until the matter was raised by this Court. It is true that addresses below were not transcribed. However the learned trial Judge repeated what may be assumed to have been the principal submissions of counsel. He did not in the course of doing so say what the Crown said the evidence was upon which the jury should conclude that the pretence had been made.

For his own part, the learned trial Judge told the jury that:

"The false pretence is that the farming practices complied with the NASAA
requirements.

... Once again, it is very important for you to notice that a false pretence alleged

is not that the wheat was certified level A; the false pretence alleged was that the
crop of wheat complied with NASAA level A standards."
However the learned trial Judge did not tell the jury what the evidence was upon which

they could conclude that that pretence had been made. In particular he did not tell them that the letter of 5 November 1991 did not expressly say that. His Honour did direct the jury's attention to this letter which was exhibit 14. His Honour said:

"Perhaps if we look at Exhibit 14 at this stage. Members of the jury, what you might think about at this point of time is what I referred you to. You must be satisfied that there were continuing false pretences, that the false pretences which were made at an earlier date continued on. You might think this letter and the evidence of Mr. Brunner is significant on this point. Now, Exhibit 14, if you look at the first paragraph of that letter headed, 'Re organic wheat',".

His Honour then read the first paragraph of that letter and continued:

"and you will remember the evidence of Mr. Brunner was to the effect that the
Uncle Tobys Company took the 2,100 tonnes. There was interest in that and he
was not interested in the 500 tonnes."
His Honour then went on to discuss the question of inducement and the evidence with

respect to it. He did not point out to the jury that the letter of 5 November did not expressly assert that the wheat complied with the NASAA standard. A little later, in reminding the jury of the address of the Crown prosecutor, his Honour said:

"He reminded you of a further letter from the accused to the Uncle Tobys
Company dated 5 November 1991, Exhibit 14, and that the accused was again
saying that his wheat was grown to level A standards."

It is plain that the appellant was not saying that expressly in the letter and an inference

that he was saying that implicitly could only be drawn by taking into account the statements
referred to earlier in his earlier conversation with and letter to Brunner.

The learned trial Judge did remind the jury on more than one occasion that certification by NASAA was not a necessary element of the charge. But he did not point out to them, as I think he should have, that the statement made in the letter of 5 November 1992 that the wheat was certified by NASAA as level A organic did not prove the false pretence and that the false pretence was only proved if, implicit in that statement, in the light of earlier statements by the appellant, or in the earlier statements alone, was the representation by him that the wheat complied with that standard. Because his Honour failed to do this there is, in my view, a real danger that the jury concluded that the relevant pretence had been made to Brunner because, and only because, the appellant asserted in the letter of 5 November 1991 that the wheat was certified by NASAA as level A organic, a statement which was literally true.

Two further aspects of this case support the conclusion that, in consequence of the learned trial Judge's failure to direct on this question, the appellant lost a chance which was fairly open to him of being acquitted. The first is the concession, arising from the appellant's acquittal on counts 1 and 2 in the indictment, that, in effect, the jury must not have been satisfied that a false pretence to Bradshaw had induced delivery of the money. The false pretence to Bradshaw was that the farming practices at Mt. Carmel prior to certification complied with the requirements for the NASAA level A certificate. Bradshaw was an officer of NASAA and the allegation, in effect, was that, by that pretence, the appellant had induced NASAA to provide the certificate. If they were not satisfied about that, the possibility is, it seems to me, increased that they may not have been satisfied that the appellant made a similar though not identical representation to Brunner but may have concluded that it was sufficient to convict the appellant that the statement literally made in the letter of 5 November 1991 induced the payment.

The second is the evidence of Brunner to the effect that it was the certificate of NASAA, or at least an indication that the certificate was forthcoming, which was the "major condition" for purchase of the appellant's wheat. He was asked:

"How was it that your company came to decide to buy some wheat from Colin

Uebergang?"

To which he replied:

"Only after we got confirmation that it was classified NASAA "A". That was the

major condition."

A little later he was asked:

"Firstly, why was it that your company entered into the contract to purchase
wheat from the man Colin Uebergang?"

To which he replied:

"Because it was confirmed classified NASAA "A" and he had the tonnage

required by Uncle Tobys - parcel of wheat."

He did say in answer to another question:

"Why was it that you made the decision to purchase wheat from Colin Uebergang

from the farm at Mt. Carmel?"

"Because he had met the specification - our specification as well as the NASAA
specification."

The reference to "our specification" appears from other parts of his evidence to have been a reference to the quality of wheat in other respects. This evidence, which is relevant primarily to inducement, by its emphasis on the fact of certification by NASAA, increased the possibility that the jury thought that the fact that the statement contained in the letter of 5 November induced the payment was sufficient.

For the reasons which I have given, in my view, the appellant was deprived of a chance of acquittal which was fairly open to him and the conviction should be set aside. If it would have been open to the jury, properly instructed, to convict on the basis of the alleged false pretence to Brunner it would be necessary to order a new trial. For reasons which I have given, I think that a jury, properly instructed, could have been satisfied to the requisite standard that the appellant had, at least implicitly, represented to Brunner that the wheat which he was proposing to sell to the Uncle Tobys Company complied with the NASAA level A certification standard although the evidence on this is by no means strong. However the evidence that any such representation induced Brunner to make the payment is, if anything, even weaker. Indeed the evidence of inducement, of which the last quoted passage is an example, tends to show that it was the NASAA certification alone which relevantly induced the making of the payment. For that reason, in my view, there would be no point in granting a new trial and I would therefore direct that a verdict of acquittal be entered.

Because of the conclusion which I have reached I do not think it is necessary to reach any conclusion with respect to the other grounds of appeal to which I have already referred.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 398 of 1997

Brisbane

Before Davies J.A.
McPherson J.A.
Moynihan J.

[R. v. Uebergang]

T H E Q U E E N

v.

COLIN UEBERGANG Appellant

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered 27 February 1998

The appellant Colin Uebergang was tried in the District Court on an indictment charging three counts of false pretences under s.427 of the Criminal Code. He was found not guilty of counts 1 and 2 but guilty of count 3, and was sentenced to serve a term of imprisonment for two years. This is his appeal against that conviction and sentence.

Count 3 on which the appellant was convicted was in the following terms:

“And further that on or about the 26th day of November 1991 at Goondiwindi and elsewhere in the State of Queensland you by partly falsely pretending to one Matthew Bradshaw and others that farming practices at Mt Carmel prior to certification complied with the requirements for National Association for Sustainable Agriculture Australia Limited Level ‘A’ certification and to others that farming practices at Mt Carmel prior to certification complied with the requirements for National Association for Sustainable Agriculture Australia Limited Level ‘A’ certification and party by falsely pretending to one Alfred Matthias Brunner that a crop of wheat grown at Mt Carmel complied with the National Association for Sustainable Agriculture Australia Limited Level ‘A’ certification standards induced the Uncle Toby’s Company Pty Ltd to deliver to the Westpac Banking Corporation a sum of money namely $278,250 with intent thereby then to defraud.”

Count 3 on which the appellant was convicted was in the same terms as counts 1 and 2 on which the appellant was acquitted, with the exception only of the amounts of money alleged to have been obtained in each instance and the dates on which it was alleged to have been so obtained. Those dates were 21 March 1991 in the case of the first count and 28 June 1991 in the case of the second count, as compared to 26 November 1991 in count 3. Those dates corresponded to the dates on which the money was paid in each case. Although there were three separate counts and three payments, the first two related only to a single sale of wheat, and count 3 to another and later sale and crop of wheat of different quantity.

The notice of appeal contained in all some 17 grounds of appeal against conviction, but those numbered 1, 2, 3, 6, 7, 9, 10 and 12 to 16 were abandoned on appeal; and, in consequence of some observations from the Court at the hearing, Mr Martin S.C. for the appellant was given leave to add a further ground or grounds of appeal as follows:

“That there was no evidence or no sufficient evidence to prove the false pretence alleged; and that the learned trial judge failed to properly direct the jury as to what it was necessary to prove beyond reasonable doubt [to find] the pretence alleged.”

It is to this additional ground of appeal that these reasons are principally directed.

It will be seen that count 3, as well as each of the first two counts, relied on a combination of two representations one of which was alleged to have been made by the appellant to a Mr Bradshaw and the other to a Mr Brunner. The latter was an officer of Uncle Tobys Company Pty. Ltd., which was the purchaser of wheat. Because of the verdicts of acquittal on the first two counts, Mr Bullock on behalf of the Crown on appeal sought to sustain the conviction on count 3 relating to the second sale only on the representation alleged to have been made to Mr Brunner. In identifying it, Mr Bullock said that the “primary representation” was the pretence made in a letter ex. 14 sent by the appellant to Mr Brunner, taken in conjunction with certain oral testimony given at the trial by that witness.

In order to appreciate the difficulty, as I see it, in which the Crown now finds itself on appeal, it is necessary to refer first to ex. 14. It is a letter dated 5 November 1991 signed and sent by the appellant to Mr Brunner. After referring to the crop of wheat then being harvested, which was estimated at 2,600 tonnes, the letter states:

“This wheat is certified by NASAA as Level ‘A’ organic.”

NASAA is an abbreviation of or acronym for National Association for Sustainable Agriculture Australia, of which Mr Bradshaw was an officer. It is or in 1991 was a society or organisation to which the appellant and other wheat growers belonged, which is dedicated to ensuring that growers would not use on their crop-raising land any manufactured soluble fertilisers or pesticides not specified or allowed by the society. On 7 March 1991 the appellant became a member of the society under a contract (ex. 4) signed by him by which he agreed not to use any of these proscribed or “prohibited” substances. In return, the society, which also carried out inspections of the appellant’s land at Mt Carmel, undertook to issue a certificate that wheat grown on that land complied with the standards so specified.

Broadly stated, the prosecution case at trial on count 3 was that the appellant had in fact used proscribed substances on the land in the course of growing the second crop that was the subject of that count. There was evidence to that effect from former employees of the appellant. That evidence was the target of ground 11 of the notice of appeal, and also to some extent in ground 17, which complains of the verdict being unsafe; but I am satisfied that the jury were entitled to act upon the evidence in question, and that, so far as that branch of the case is concerned, the appeal fails.

The evidence of the employees was aimed at proving the element of falsity with respect to the allegations in all three counts. As regards count 3, it will be recalled that the representation or pretence alleged to have been made to Mr Brunner was that a crop (which was the second crop) grown at the appellant’s Mt Carmel property complied with the NASAA Level “A” certification standards. Accepting the evidence of the employees referred to, the prosecution was successful in establishing at the trial that those standards had not been complied with. The problem is, however, that that particular matter was not the representation or pretence contained in the letter ex. 14 to Mr Brunner. As appears from the extract quoted above (which on appeal is the only portion of that letter ex. 14 to Mr Brunner relied on by Mr Bullock as proving that the appellant made the representation or pretence alleged), it is that the wheat in question had been certified by NASAA as Level “A” organic. The problem with which the Crown is faced on appeal is that it was not established at the trial that the representation in ex. 14 was false. On the contrary, the uncontested evidence was that it was true. The relevant NASAA certificate is undated, but it is part of ex. 17, where it appears with other documents which are dated about 11 or 13 November 1991. It states that the certification “Level ‘A’ organic” has been granted by NASAA for certain specified crops. If, therefore, the representation or pretence relied on by the Crown is that contained in ex.14, its fatal defect is that it is not false. The wheat referred to in ex.14 was in fact certified by NASAA as Level “A” organic.

The representation or pretence averred in count 3 was that [the second] crop of wheat grown at Mt Carmel complied with the NASAA Level “A” certification standards. That, however, is not the representation or pretence that appears in ex. 14, which, on the contrary, is that the crop had been certified by NASAA as Level “A” organic; and, even if it had been so represented, far from being false, it was perfectly accurate in fact. To extricate the Crown from the dilemma, Mr Bullock sought to rely on the oral testimony given by Mr Brunner at the trial, and on what he described as the “background” evidence in the case. As regards the latter, we were referred to a conversation between the appellant and a Mr Fudge. In the latter part of 1990, the appellant visited Mr Fudge at the Uncle Tobys office in Brisbane. He told him that he had been producing organically grown wheat on his property for the last eight months, and asked whether Uncle Tobys would be interested in purchasing a parcel of about 2,000 tonnes of such wheat from him. The response of Mr Fudge was that the grain would have to be certified by NASAA before they would even look at purchasing it. Mr Fudge later visited the appellant’s Mt Carmel property, where he was shown the farming methods used and took swabs of various items with a view to having them laboratory tested.

It may well be a fair interpretation of the testimony of Mr Fudge that on this or a later visit to the property in early 1991, he was told by the appellant that only organic growing methods were or had been used on it, or that proscribed substances were not being used in the growing process. The difficulty, however, is that there is no evidence that any of these representations to Mr Fudge were communicated to Mr Brunner, to whom the pretence in count 3 is alleged to have been made. It follows, of course, that they could not have been the representations on which Mr Brunner acted, or by which the appellant can be said to have obtained payment of the sum of money referred to in count 3. The Crown cannot, by pointing to a representation made to Mr Fudge on one occasion, establish that a similar representation was made to Mr Brunner on another occasion, or that it was what caused him to pay the money alleged to have been obtained by the appellant. It amounts simply to a failure to prove an element of the offence alleged, which cannot be satisfied by resorting to “background”.

The remaining foundation of the Crown’s attempt to sustain the conviction is, however, the oral testimony of Mr Brunner at the trial. In the first portion of the transcript relied on by Mr Bullock, Mr Brunner is the witness who is giving the evidence:

“To that end, did you establish contact with a Colin Uebergang of Mt Carmel, near Goondiwindi, in Queensland ? --- I personally did not. Mr Uebergang did.

Right. Well, tell me what you mean by that. What contact did you receive from him ? --- Basically, first of all, it was a phone call stating that he, Mr Uebergang, was in a position to sell to Uncle Toby’s NASAA certified organic ---

Was this telephone call made to you ? Was the telephone call made to you ? --- Yes.

Thank you. Just tell me what you remember was said to you ? --- It was said to me that Mr Uebergang was in a position to - or shortly will be classified organic A and should be in a position to sell a considerable amount of grain to Uncle Toby’s.

Do you recall approximately when that telephone call was ? --- No, I can’t.

That was a telephone call. Mr Brunner, did you ever receive anything in writing from Colin Uebergang ? --- Yes, I did.

Do you recall approximately when you received any written communication from Colin Uebergang ? --- Yes., I did.

Do you recall approximately when you received any written communication from Colin Uebergang about this ? --- I think it was early ’91 - February.

Sorry ? --- Roughly February, I think.
If the witness could be shown this, please ? Mr Brunner, the document
you have just been handed, do you recognise it ? --- I do.
What is it ? --- It is the letter from Mr Uebergang, addressed to myself.
What date does it bear ? --- 23 January 1991.
All right. I will tender that letter, Your Honour.
HIS HONOUR: That will be Exhibit 13.”

Exhibit 13 having been admitted, the evidence from Mr Brunner proceeded, in the second portion relied upon, as follows:

“After receiving that letter, was a decision made by your company
regarding the buying of grain from Colin Uebergang ? --- No.

That is, at any time after you received this letter, did you make any decision regarding buying wheat from Colin Uebergang ? --- No.

Mr Brunner, did your company buy any wheat from Colin Uebergang ? ---
We did.
How was it that your company came to decide to buy some wheat from
Colin Uebergang ? --- Only after we got confirmation that it was classified
NASAA ‘A’. That was the major condition.

Your company entered into a contract, a decision was then made to buy some wheat from Colin Uebergang ? --- At that time, the classification NASAA ‘A’ was not confirmed.

Yes. But after you received some information from the NASAA organisation, you decided to purchase some wheat, didn’t you ? --- That’s correct.

Who made this decision ? --- I did.

And why was it that you made the decision to purchase wheat from Colin Uebergang from the farm at Mt Carmel ? --- Because he had met the specification - our specification as well as the NASAA specification.

The letter of 23 January 1991, how did that affect your decision to consider buying wheat from Colin Uebergang ? --- In the first instance, it was the type of wheat which Mr Uebergang offered us.

Can you direct us to what you mean by that ? --- In particular, there was a type called hard top, which we had previously trialed and successfully produced the product with.

You see that the letter, the first three paragraphs - sorry, the first four paragraphs contains references to NASAA certification for the wheat ? --- Yes.

You see that ? Upon reading that - upon seeing that - how did that affect your decision to consider buying wheat from Colin Uebergang ? --- At this stage, it was a - an indication that Mr Uebergang was in the process of receiving the all-clear on NASAA ‘A’ certification.

If that were not the case, would your company have considered perhaps buying - considered buying wheat from Colin Uebergang ? --- Not for the organic purpose, no.

With regard to that, was there any difference in price between what your company would pay for wheat which was certified Level ‘A’ organic, and wheat which was not so certified ? --- We paid a premium of up to $40 to $50 a ton above normal wheat prices.

For, what, the Level ‘A’ certification ? --- Level ‘A’ certification.

HIS HONOUR: When you say “a premium”, you mean a higher price ? ---
A higher price, yes.

MR WESTON: Thank you, Your Honour. And that was the prices you were paying as at January of 1991, was it ? --- That’s correct.

Why were you prepared to pay a higher price for the Level ‘A’ certified organic wheat ? --- It wasn’t altogether the company’s choice. The grower actually demanded a higher price for the wheat, because of its being organically grown.”

A little later in the course of evidence at the trial, Mr Brunner was asked:

“Firstly, why was it that your company entered into the contract to purchase wheat from the man Colin Uebergang ? --- Because it was confirmed classified NASAA ‘A’, and he had the tonnage required by Uncle Toby’s - parcel of wheat.”

After those events in early 1991, Mr Brunner said he received from the appellant another offer of a new parcel of organic Level “A” Hartog wheat (which was the second crop), which on behalf of Uncle Tobys’ he decided to buy. The offer on this occasion was contained in ex. 14, which is the letter dated 5 November 1991 on which Mr Bullock relies for the purpose of establishing the pretence put forward in count 3.

It incidentally emerged from this evidence of Mr Brunner that it was not in fact the certification from NASAA as such (ex. 17) that induced Mr Brunner on behalf of Uncle Tobys’ to purchase the second crop, but a slightly earlier communication from NASAA that the second crop complied with NASAA’s standard, and that the requisite Level “A” certification would be forthcoming. No doubt that is the explanation for the form in which this part of count 3 relating to the second crop is cast. It would, however, nevertheless enable the conviction on count 3 to be sustained if the representation concerning the compliance with those standards was in fact proved to have been made by the appellant.

The difficulty remains that the particular representation on which Mr Brunner acted was, according to his own evidence, made to him not by the appellant but by someone from NASAA. It therefore does not constitute proof of the pretence averred in count 3. All that survives of the prosecution case against the appellant therefore is the evidence contained in the telephone conversations between the appellant and Brunner. As appears from the first of the transcript extracts set out above, there were two such conversations. The first was evidently in early January 1991, or perhaps late 1990. It concerned the first crop, which was the subject of counts 1 and 2 on which the appellant was acquitted, and it was followed by the letter dated 23 January 1991, which was admitted as ex. 13. That letter is not the letter relied on by Mr Bullock in relation to count 3, which is the letter ex. 14 dated 5 November 1991. Furthermore, even if reliance could, for the purpose of count 3, be placed on ex. 13, the appellant said in the course of it is that “we are awaiting organic certification approval from NASAA” for wheat held in their own farm storage capacity. It is thus a representation relating at least in part to future action or conduct, which to that extent is not capable of being considered a false pretence of present fact necessary to sustain a conviction on a charge formulated in the form of count 3 under s.427 of the Code. It is true that, in some circumstances, it might be regarded as an implied assertion by the appellant that he held a present belief that the wheat would be so certified (cf. R. v. Free [1983] 2 Qd.R. 183); but the appellant was not charged with misrepresenting the state of his belief, and the jury were never directed in terms appropriate to such a charge. It was not the form of pretence that the prosecution set out to establish at the trial.

In any event as I have said, that portion of Mr Brunner’s evidence related to the first crop of wheat that was subject to counts 1 and 2 and has no reference to the representation relied on to establish count 3. As regards count 3, the only relevant portion (if any) of Mr Brunner’s evidence is that which is contained in the second of the two extracts set out above. Mr Brunner is recorded there as having said that he made the decision to purchase wheat from the appellant Colin Uebergang, and that the reason why he did so was “because he had met the specification - our specification as well as the NASAA specification”. It is perhaps possible to read “our specification” as a reference to a requirement by the purchaser Uncle Tobys’ that the wheat be organically grown. However, in the context of what follows, it seems more likely that in speaking of “our specification” Mr Brunner was speaking of the type and quality of the wheat required by the purchaser. His next two answers went on to explain that the letter of 23 January 1991 (ex. 13) affected his decision to buy because “in the first instance, it was the type of wheat” offered by the appellant. Asked to explain what he meant, he said “in particular, there was a type called hard top”, which they had previously tried and succeeded in producing their produce with. So far as the organic aspect of the wheat was concerned, it seems clear that Mr Brunner was relying simply on the Level “A” certification which he was expecting to receive, and did receive, from NASAA.

It is true that in the same passage of his evidence, Mr Brunner went on to say that “the grower actually demanded a higher price for the wheat because of its being organically grown”. It is, however, not entirely clear to me whether by “the grower” in this context the witness was referring to the appellant in particular, or growers in general; and, if it was the former, whether he was claiming to repeat a particular conversation in which the appellant had in fact expressly asserted that the wheat had in fact been organically grown. If there was such a particular conversation, Mr Brunner did not identify it and he gave no direct or explicit evidence that in the course of it the appellant had used words to that effect.

Moreover, in relation to this part of Mr Brunner’s evidence, there was, at the very least, an ambiguity to which the attention of the jury ought to have been, but was not, drawn in summing up. The learned judge was careful to stress what were the representations or false pretences alleged in counts 1, 2 and 3; and that, in the case of count 3, the false pretence averred that the crop of wheat complied with NASAA Level “A” standards. His Honour then read to them the passages from the transcript of Brunner’s evidence which have been set out earlier in these reasons. He did not, however, specifically direct the jury to notice the point in issue here, or to consider the ambiguity inherent in the evidence to which I have referred. That is not altogether surprising having regard to the way in which the case was conducted at trial. The principal context seems to have been whether, as alleged, the appellant had in fact used proscribed chemicals on the Mt Carmel property, and whether or not in January 1991 there had, as alleged, been representations by the appellant to Mr Bradshaw and Mr Brunner about the organic quality of the crops being grown there. Once the appellant was acquitted on the false pretence charges in counts 1 and 2 (the first crop), and then, but perhaps unexpectedly, convicted on count 3 (the second crop), the Crown on this appeal was compelled to abandon the evidence of Mr Bradshaw in relation to all three counts, leaving only the testimony of Mr Brunner to support count 3. As can be seen from the extracts set out in these reasons, Mr Brunner’s evidence was related almost entirely to the first two counts, and failed to descend to particularity about the representation or pretence alleged in relation to count 3. Once verdicts of acquittal were returned on count 1 and 2, it ceased to be possible to isolate and identify the evidence of Mr Brunner on which the verdict of guilty on count 3 could be sustained. It is not to be found in ex. 14, on which Mr Bullock relied; and in my opinion it is not to be found with sufficient clarity in the evidence of Mr Brunner about the count 3 transaction to enable this Court, with any degree of confidence, to say that the jury must have appreciated the need to find beyond reasonable doubt that the appellant directly, or even indirectly, represented that the second crop complied with NASAA standards, as distinct from representing that he expected that it would be so certified by NASAA, as indeed in due course it was.

In my opinion, it would in the circumstances be unsafe to allow the verdict on count 3 to stand. The case is not one where, having regard to the principles in Director of Public Prosecutions (Nauru) v. Fowler (1984) 154 C.L.R. 627, a new trial would be warranted. I would therefore allow the appeal, set aside the verdict and conviction, and enter a judgment of acquittal in relation to count 3.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	C.A. No. 398 of 1997
Brisbane
Before	Davies J.A. McPherson J.A. Moynihan J.

[R v. Uebergang]

THE QUEEN

v.

COLIN UEBERGANG Appellant

REASONS FOR JUDGMENT - MOYNIHAN J.

Judgment delivered 27 February 1998

The appellant appeals from his conviction on one count of false pretenses, after having been acquitted of two further counts.

Count 3 on which the appellant was convicted was in the following terms:-
“And further that on or about the 26th day of November 1991 at
Goondiwindi and elsewhere in the State of Queensland you by partly
falsely pretending to one Matthew Bradshaw and others that farming
practices at Mt Carmel prior to certification complied with the requirements
for National Association for Sustainable Agriculture Australia Limited Level
`A’ certification and to others that farming practices at Mt Carmel prior to
certification complied with the requirements for National Association for
Sustainable Agriculture Australia Limited Level ̀ A’ certification and partly
by falsely pretending to one Alfred Matthias Brunner that a crop of wheat
grown at Mt Carmel complied with the National Association for
Sustainable Agriculture Australia Limited Level ̀ A’ certification standards
induced the Uncle Toby’s Company Pty Ltd to deliver to the Westpac
Banking Corporation a sum of money namely $278,250 with intent thereby
then to defraud.”
As a consequence of the appellant’s acquittal on counts 1 and 2 of the

indictment, the sustainability of a conviction on count 3 turns on the jury being properly satisfied of the false pretense to Brunner that the relevant crop complied with the NASAA standard identified in the count. This was because the jury’s having relied on the pretense to Bradshaw and others, alleged in the earlier part of the count, was inconsistent with the acquittal verdicts on counts 1 and 2. Counsel for the respondent recognised this and sought to sustain the conviction on the basis of the separate pretense to Brunner.

It follows from this that the appeal turns on grounds raising whether there was no evidence, or no sufficient evidence to prove the pretense allegedly made to Brunner, and as to whether the jury was properly directed to the issues necessary to found a conviction. These grounds were added during the argument of the appeal.

That having been said the circumstances for consideration in this appeal and the issues to which it gives rise are adequately canvassed in the reasons of Davies and McPherson JJA’s which I have had the advantage of reading. It is pointless for me to repeat what is dealt with in those reasons.

As Davies and McPherson JJA’s reasons demonstrate, it would be unsafe to allow the verdict on count 3 to stand. Given the acquittals on counts 1 and 2, it is not possible to identify the evidence which could be safely relied on to sustain a conviction based on the alleged pretense to Brunner. In any event, as Davies J.A. demonstrates, the jury was not directed as to the considerations to be brought to bear with respect to the inferences to be drawn from the letter of 5 November 1991. This may be understandable having regard to the course of the trial, but it had the consequence of depriving the appellant of a chance of acquittal which was fairly open to him.

I agree therefore that the conviction should be set aside.

I agree that this is not a case in which it is appropriate to grant a new trial and

that there should be a judgment of acquittal in relation to count 3.

On the view I take of the matter, it is unnecessary to consider the other grounds of appeal which were argued.