Simmonds v The Queen

[1993] HCATrans 155

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M69 of 1992

B e t w e e n -

RAYMOND WILLIAM SIMMONDS

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ
DEANE J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

Simmonds 1 17/6/93

AT MELBOURNE ON THURSDAY, 17 JUNE 1993, AT 10.52 AM

Copyright in the High Court of Australia

MR D.J. ROSS, QC:  May it please the Court, I appear with my

learned friend, MR P.G. PRIEST, for the applicant.

(instructed by Messrs Cahills)

MR B.D. BONGIORNO, QC: If the Court pleases, I appear with

my learned friend, MS K.E. JUDD, for the Crown.

(instructed by the Solicitor for the Director of

Public Prosecutions.

MR ROSS:  If the Court pleases, the papers show that the

applicant was convicted at the Melbourne

County Court and the charge was a charge of

obtaining property by deception. It might be

useful for Your Honours to have a copy of the

presentment. In the result, Your Honours, he
appealed to the Court of Criminal Appeal and the
appeal succeeded, but it succeeded on an

identification point and a new trial was ordered. But the Court of Criminal Appeal had rejected his

ground of appeal that was based on the following,

that the presentation of a withdrawal slip was

capable of representing that the account to which

it referred was in credit.

As Your Honours know, the Crown allegation was

that Mr Simmonds, by the use of wrong cheques,

placed an account in credit, on the first count, to

the extent of $12,000. As to that account that had

been wrongfully placed in that credit for $12,000,

he presented two withdrawal slips; I think one for

$5000 and one for $1000.

So, what happened in the Court of Criminal

Appeal was an examination of this issue: what, if

any, representation was made by the presentation of

a withdrawal slip at the bank because, you see, the

Crown confined itself to this question, or to this matter, that the presentation of the withdrawal slip was the false representation and that representation was that the amount was in credit,

not to the extent of the amount requested by the

withdrawal slip, but to the full extent of the

amount of the cheques that had been wrongfully paid

into the account.

DEANE J: Wa§-not the case put on the basis that the

presentation of a withdrawal slip was the final

step in the course of conduct, who~a whole purpose

was to deceive?

MR ROSS:  No, it was not put that way, Your Honour; it was

not put that way and it becomes - - -

DEANE J: Well then, what was all the evidence about then?

Simmonds 2 17/6/93

GAUDRON J:  Indeed, what about the charge at page 10 of the

book; the first whole paragraph. It is said:

It is alleged that by presenting the two

withdrawal forms ..... and arranging in some

undiscovered way for a worthless cheque to be

paid into the account, the accused was

representing -

et cetera?

MR ROSS:  Yes. No, we do not say that that was ever the

Crown case and that was how it was ever finally put

by His Honour the trial judge. Perhaps I can take

Your Honours to page 3 of the application book.

DEANE J: Well then, would not the best you could get on an

appeal be, since the conviction has been quashed, a

view from this Court that in the circumstances of

this case the matter should have been put on the
basis that the presentment of the withdrawal slip

was the culmination of a whole series of conduct

whose only purpose was to deceive the bank into

believing that there was money to be drawn against

in the account?

MR ROSS:  Yes. Well that is not how the case was put by the

Crown.

DEANE J: It is the effect of the evidence though, if one

accepts the Crown evidence.

MR ROSS:  Yes. Well, that is a cause of some perplexity to

me, Your Honour, and might I way this that I have

not checked with counsel who appeared on the trial,

but as far as I can tell, trying to reconstruct it,

what may well have happened was this: the Crown

may have said, there was a course of conduct which

culminated in the presentation of a withdrawal

slip, and the whole of it was a fraud, if you like,

or there could have been a variety of charges that

were laid; charges that related to the lodgment of

the false cheques and the presentation of the

withdrawal slip. They could have put it that way.
One can see that they could have.

I can only assume that counsel who appeared for-Mr Simmonds took this view, that seeing that

the Crown had decided to run its case on the basis

that the presentation of the withdrAwal slip alone

was the false representation that the account was

in valid credit, as they put it, to a certain sum,

that if he objected to the evidence to start off

with, if he objected to the evidence of the bank
folk and the people who had accepted the payments
of cheques and so on, is really inviting the Crown

to say, "Oh, we are going to charge another

Simmonds 17/6/93

charge", or "We are going to make application to extend the way in which we put the allegation in the presentment."

So, the only way open to him to deal with that

would have been to say nothing about it and at the

end of the Crown case just say, "Look the

representation that you say was made by the

presentation of a withdrawal slip was not really

open; that the presentation of a withdrawal slip is

not capable of that representation." And, if you

like, meeting the Crown on their own ground,

accepting the allegation that they put and saying,

in effect, that the earlier evidence was
irrelevant, but keeping his powder dry. With

respect, we have all had that experience in trials

of having to make those fine judgments, and if that

is the way the Crown put it and you think you are

going to get an advantage by not making any

application until the closure of the Crown

evidence, that is what you do.

But, as it turns out, Your Honours, there now

seems to be a very real issue as to what the proper law is on this subject in Australia because, as you

between an unreported decision of the

know from the decision of the Court of difference

Court of Criminal Appeal in New South Wales in a
case called Beattie and a decision of the

Court of Appeal in England in the case of Hamilton.

I am going to do it again, Your Honours, and

that is hand up some authorities, and the part

reason for that is - I think Beattie should have

been attached to Mr Lyall's affidavit and so it

should be in the application book. But long after

the decision was made in the Court of Criminal

Appeal in Victoria, adopting Hamilton and rejecting

Beattie, the Queensland Court of Criminal Appeal

came to a decision in a case called Majunen on

22 March, 1993.

Now, one of the troubles about relying on a

case that comes from Queensland is that the Code

provisions are different from the provisions in

Victoria, but it has this advantage for us and that

is this: in Majunen's case what happened was

Majunen put in some forged cheques into his own

account and one of the things that _he did that he

was convicted of was going and getting cash from

his account over the counter. One assumes that he

did it by the presentation of a withdrawal slip, as

was alleged against Mr Simmonds. Now, there are

other things that he was charged with and convicted of, but he finished up being charged with a form of theft under the Queensland Code, which included in

Simmonds 4 17/6/93

its definition, fraud; fraudulent conversion. Now,

one assumes again that the Queensland authorities, on the facts as were presented by Majunen, charged

him with the offence that they thought was the best
offence that they could get: seeing whether there

was any representation involved, seeing whether

there was any fraud involved.

In the Court of Criminal Appeal, Majunen

appealed - and this counter-cheque question was

count 2 - and the Crown conceded that he should not

have been convicted. But that did not stop the

court from dealing with it and they made an inquiry

for themselves as to whether the concession was

correctly made and did so. The President made his

own assessment of it at page 5 of his judgment - it

is Mr Justice Fitzgerald; Mr Justice McPherson

referred to it at pages 2 and 3 and 6 and 8, and

Mr Justice Davies referred to it at pages 1 and 2

and 3 and 5.

The curious part about these decisions is

this, that in Hamilton's case it seems that

Hamilton's case is totally opposed to the decision

in Beattie because, if I can take Your Honours to

what the Court of Appeal said in Hamilton, at

pages 58 to 59, right at the bottom of page 58:

So the appellant in the circumstances of

this case had no right to demand payment of
the sums which he sought to withdraw from his

accounts. The same conclusion might be

reached more shortly on the basis ex turpi

causa non oritur actio. He could not seek to

take advantage of his own previous criminal

offences. Did he then make any representation

to the effect that he was entitled to make

such demands? Can such a representation be

inferred from his conduct in making the

demands?	We agree with the learned assistant
recorder that it can.	By identifying the
account he represented that he was the person
to whom the bank was indebted in respect of
that account, and by demanding withdrawal of a
stated amount he necessarily represented in
our view that the bank was indebted in that
amount to him.

They go on to say this:

Our conclusion is that by presenting the

signed withdrawal slip the appellant made a

demand for cash payment of the stated amount

and he thereby represented that the bank was

indebted to him in that amount. This is, in

substance, the representation alleged in the particulars of offence. Its falsity and his

Simmonds 5 17/6/93

dishonesty in making it were found by the jury

to be proved. Although Mr Causer is correct
to distinguish the cheque cases to which we

have referred, we consider that the facts of

the present case are indistinguishable from

those which would exist if the account-holder

made his demand in the form of a cheque

payable to self or to cash without using a

withdrawal slip as the appellant did.

GAUDRON J: It is that part that you say - - -

MR ROSS:  Yes.

GAUDRON J: But that is not your case, is it?

MR ROSS:  No, it is not our case, but it seems pretty clear,

from what the Court of Criminal Appeal said in

New South Wales, that they would say the reverse,

that if there is a cheque paid to cash, it stands

in no different position from a withdrawal slip,

and that no representations are thereby made,

except, I would concede, a representation that the

person who presents the withdrawal slip, has the

authority to do so.

DEANE J:  But does it not always depend on the facts? I

mean, say, for example, you have banked with a
particular bank for 20 years and the bank knows

that you never go into overdraft and you say to X,

"I will go in. If I write out a cheque for $100,

they know I never go into overdraft, they know how

careful I am, they will assume that the $100 is

there, whereas it is not there." And in you go and

you present the cheque. Could it be arguable that

in those circumstances you have not deliberately

and knowingly misrepresented to the teller that you

have got $100 in the bank?	I mean, that was what
it was all about.

MR ROSS:  I think not, Your Honour, because in each of these

cases, in each of these three cases, it seems that

the bank did not rely on any representation that

was contained by anything, apart from the request

which activated it.

DEANE J:  No, well I was putting a case where it did.

-

MR ROSS:  Yes. Well there might be certain -

DEANE J: What if the teller said to you, "I° am supposed to

check your account, but I know that you always

check things before you write a cheque and

therefore I accept your representation that there

is $100 there."

Simmonds 6 17/6/93

MR ROSS:  Yes, or if they went further and said, "Terribly

sorry, the computer has closed down; have you got

this money in your account?". But that was not the

case in any of these cases, either the instant case

or Beattie or Hamilton or Majunen. You see, all

that was done was to do what perhaps we all do, and

you turn up to the teller and things are very

impersonal, unless you say something social and

irrelevant, you just hand over the document,

whether it is a cheque to cash or it is a
withdrawal slip or whatever it is. And, generally

speaking, they will say something like, "How would

you like your cash?" and that is all, because what

they do is that they check their own records. So

it was in the instant case; they did not regard any

representation. None of the tellers in this case,

in Mr Simmonds' case, regarded the representation

that he made, if it were validly made, as having

any effect on them at all.	They checked their own
records.

So, it is a short point, but we say,

Your Honours, an interesting one, because it not

only affects the fact that there appears to be now, a difference in view between Victoria and possibly

New South Wales and Queensland, but that Victoria follows England and - - -

GAUDRON J: But any discrepancy relates only to a cheque

account, does it not, or the presentation of a

cheque?

MR ROSS:  I think probably not, Your Honour; I think Majunen

was - even though the case does not say so, it was

said to be an over-the-counter transaction, and one

would assume that it involved the equivalent of a
withdrawal slip.

GAUDRON J: Well, there is no discrepancy between that,

assuming that to be the case, and your case.

MR ROSS:  Yes, because in Majunen they said that there was

no representation made at all or no fraud made at

all, and they accepted the learned Crown

prosecutor's concession that the conviction on the

over-the-counter transaction should not have been

made. Now, what we say the key to it is, is where

you_have got a cash cheque involved in Beattie's

case, which we say is not going to be much, if any,

different from the position in prinqiple that

obtains when a withdrawal slip is presented, and

Beattie is the opposite of Hamilton; they come to quite different conclusions.

What we say is the position that should obtain

is this: that when you walk into a bank and you

hand the teller a withdrawal slip, all you are

Simmonds 17/6/93

saying is, "I am entitled to hand you this

withdrawal slip and I ask you for payment of a

certain amount", nothing more. Now, if the Crown

wants to frame its case a different way, of course

it can; it can do all manner of things. But, we
say it is a matter of importance, Your Honours,
because of the discrepancy in the authorities,
because it is going to affect banking practice

throughout the country. If Your Honours please.

MASON CJ: Yes, thank you, Mr Ross. The Court will take a

short adjournment in order to consider the course it will take in this matter.

AT 11.16 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.24 AM:

MASON CJ:  The Court need not trouble you, Mr Bongiorno.

MR BONGIORNO: If the Court pleases.

MASON CJ:	The point which the applicant seeks to raise in the proposed appeal is that the presentation of a
withdrawal slip to a bank does not, of itself,
amount to a representation to the bank that there
are funds in the account to meet the withdrawal. presentation of the withdrawal slip was the
culmination of a series of acts intended to deceive
the bank into believing that there were such funds
in the account. It was therefore open to the jury
to conclude that, in the circumstances of the case,
the presentation of the withdrawal slip amounted to
a relevant representation. In that respect, we
should mention that the final instruction given by
was in these terms:  the learned trial judge to the jury on this point, "I think I should say that it is a matter for

you what he represents, if anything, when he

--presents a withdrawal form. The presentation

of a withdrawal form is capable of amounting

to that representation, but it· ·is entirely a

matter for you whether or not it does amount

to such a representation."

We therefore see no reason to disturb the order for

a new trial. The application is therefore refused.

AT 11.25 AM THE MATTER WAS ADJOURNED SINE DIE

Simmonds 17/6/93