Tasmania v Clark - [2018] TASSC 64

[2018] TASSC 64

COURT: SUPREME COURT OF TASMANIA

CITATION: Tasmania v Clark [2018] TASSC 64

PARTIES:  STATE OF TASMANIA
  v
  CLARK, Jamie Michael

FILE NO:  335/2017
DELIVERED ON:  29 November 2018
DELIVERED AT:  Hobart
HEARING DATES:  28, 29 November 2018
JUDGMENT OF:  Brett J

CATCHWORDS:

Criminal Law – Property offences – Other frauds and impositions – Fraudulently or deceptively obtaining money, valuable, financial benefit or advantage – Generally – Charge of attempting to dishonestly acquire a financial advantage – Nature of a financial advantage.

Duncan v Independent Commission Against Corruption [2016] NSWCA 143; R v Ho (1989) 39 A Crim R 145, referred to.
Aust Dig Criminal Law [2384]

REPRESENTATION:

Counsel:
             Crown:  M Figg
             Accused:  F Brimfield
Solicitors:
             Crown:  Director of Public Prosecutions

Judgment Number: [2018] TASSC 64
Number of paragraphs: 13

Serial No 64/2018
File No 335/2017

STATE OF TASMANIA v JAMIE MICHAEL CLARK

REASONS FOR JUDGMENT BRETT J

(RULING DURING THE COURSE OF THE TRIAL) 29 November 2018

The charges against the accused include one count of attempting to dishonestly acquire a financial advantage. After the evidence was concluded, I heard argument and ruled on the appropriate directions to the jury in relation to what it needed to find to return a verdict of guilty in respect of that crime. I indicated that I would provide written reasons at a later time. I now provide those reasons.
The gravamen of the allegation is that the accused falsely represented to an insurance company that his motor vehicle had been stolen. His purpose was to obtain a payout under a comprehensive policy of insurance. The prosecution case is that in fact, the vehicle had not been stolen, but had been damaged by the accused, as the result of an accident.
These allegations have been admitted by the accused in his testimony. He claims to have left his vehicle on the road outside the house on the previous evening while he travelled into Hobart with a friend for dinner. They travelled in his friend's car. They returned in the early hours of the following morning. He admitted that he had consumed some alcohol, but said that when he returned, he slept in his vehicle for some time before driving the vehicle back to his house. When he reached the gate, he got out to unlock it, but forgot to engage the handbrake. The vehicle rolled back, over the embankment, and ended on its side. He contacted and lied to police and the insurance company as a result of panic, because he believed that the claim would not be accepted if he told the truth about his own negligence. The prosecution does not completely accept this version. The accused was cross-examined on the basis that he had in fact driven into Hobart in the vehicle, and that the accident happened immediately upon his return. It is suggested that he simply misjudged the side of the embankment and that is why the vehicle rolled onto its side. The misjudgement was attributable to the fact that he was affected by the alcohol he had consumed while in Hobart. The prosecution position is that the accused's motive to lie to the insurance company was to cover up that he was driving after consuming alcohol, because he believed that that would breach the conditions of the insurance policy.
The defence argues that the jury should be instructed that it is a necessary element of the crime to which the attempt relates, that there must be a causal link between the deception and the acquisition of the financial advantage. The defence puts its submission on the basis that this means that it must be proved that "the deception practiced leaves the accused better off financially than before the deception". Accordingly, if the jury think that it is reasonably possible that the accused may have obtained the insurance payout in any event, even if he had told the truth, then he cannot be convicted of this crime. The evidential basis of this submission rests on evidence given by the representative of the insurance company, which is said to support the submission that had the accused told the truth, there would have been no basis for the insurer to refuse to pay the claim, and it would therefore have been obliged to do so under Commonwealth legislation. I am not sure that this is in fact the effect of the insurance evidence, particularly when the terms of the policy are considered, but will consider the submission on the basis that such a finding is open to the jury.
The defence submission relies heavily on the reasoning of the New South Wales Court of Criminal Appeal in R v Ho (1989) 39 A Crim R 145. The passage in question is as follows:
"What there must be established, however, is a causal connection between the deception used and the obtaining of the money: Kovacs at 416; Charles [1977] AC 177 at 192; Clarkson [1987] VR 962 at 980; 25 A Crim R 277 at 296-297. The deception must have been the means whereby the money was obtained, or the effective cause of the money having been obtained: Royle (1971) 56 Cr App R 131 at 141-142. In Stanhope (unreported, Court of Criminal Appeal, NSW, 10 September 1987), this Court said in relation to s 178BA that it is an essential ingredient of the offence created by that section that the cause of the payment of the money (or the handing over of the valuable thing or the giving of the financial advantage) was the deception used by the accused."
It is clear that in order to establish the primary crime, the prosecution must prove that the deception was the effective cause of the acquisition of the financial advantage. This is clear from a plain reading of the text of the section, and in particular the formulation of the phrase "by any deception". It is consistent with the comments in Ho and a number of other cases. However, this uncontroversial concept does not necessarily lead to the outcome contended for by the defence. What must be established is that the deception has led to the acquisition of a financial advantage. I think that what is really being put by the defence is that, although it is not in dispute that the accused intended that the insurance company would rely on the false information given to it by the accused, and on that basis make a payment to him of the insurance proceeds, he has not actually gained any advantage, because even if he had told the truth, he would have obtained such a payment. Therefore, he has not improved his financial position.
However, this submission misunderstands the nature of a financial advantage. In Duncan v Independent Commission Against Corruption [2016] NSWCA 143, the New South Wales Court of Criminal Appeal said at [351]:
"In Coelho v Durbin (Supreme Court (NSW), Badgery-Parker J, 29 March 1993, unrep) Badgery-Parker J described as the essence of the concept of financial advantage that the person alleged to have obtained such an advantage has obtained a benefit which can be valued in terms of money."
The court went on to say at [354]:
"It is also necessary that the financial advantage in fact be obtained or at least retained by the deception. That requirement has been interpreted relatively liberally. Thus, in R v Vasic [2005] VSCA 38; 11 VR 380, an appeal from a conviction under s 82 of the Crimes Act 1958 (Vic), which was in relevantly similar terms to s 192E, it was held that it was an offence under that section to defer the payment of a debt by giving a creditor a cheque which the debtor knew to be worthless in pretended payment of the debt, even in circumstances where the debtor may not have the capacity to pay the debt in any event: at [8]-[17]. In Milne v The Queen [2014] HCA 4; 252 CLR 149, it was held that a deliberate failure to declare a capital gain as part of a taxpayer's assessable income would result in the gaining of a financial advantage from the Commonwealth: at [15]. It is important that in each of those cases the financial advantage was only temporary."
These comments were in respect of an almost identical formulation of the offence under Commonwealth legislation.
In this case, the payment of the proceeds is itself a financial advantage. The prosecution must prove that the accused intended that, by the deception, the false information, he would obtain the insurance payment. The causal link is established if the jury is satisfied that the false information would have been the effective cause of the decision of the insurance company to make the payment. This is the case even if it is shown that the insurance company would have made the payment if it had been given the truth. The prosecution case is, notwithstanding that possibility, the accused chose to use deception to obtain the payment. If satisfied of this, the jury must then consider whether this was dishonest according to the standards of ordinary decent people.
In considering the question of dishonesty, even if the evidence permitted a conclusion that the accused would have been paid anyway, the jury could conclude that the advantage he was seeking was the certainty of payment. The undisputed evidence is that although the accused may well have received a payout if he had told the truth, there was nothing certain about this and it was necessary for the insurance company to conduct investigations before making that decision. There are various exclusions under the insurance policy, including in the case of somebody who is driving under the influence of alcohol. Subsequent investigations found a number of empty cans of alcohol in the vehicle, and in an interview with an insurance investigator, the accused conceded that he had been drinking during the afternoon before his vehicle was located. The consumption of alcohol was, as noted above, confirmed by the accused in his evidence, although he claimed to have slept before driving the vehicle. In any event, the jury would be entitled to conclude that the accused, for whatever reason, wanted certainty in relation to the payment of the proceeds under the insurance policy, and accordingly decided to invent a story about his vehicle being stolen so as to ensure that certainty and avoid any questions being asked about how the damage was actually caused.
This situation is vastly different to the dishonoured cheque cases relied upon by counsel for the accused. Cases such as Fisher v Bennett [1987] ACTSC 27, turn on their own facts. In that case, it was clear that the passing of a dishonoured cheque secured no benefit whatsoever for the accused. However, in R v Vasic [2005] VSCA 38, 11 VR 380, the passing of a worthless cheque secured the temporary benefit of providing the accused with more time to seek other sources of finance. It was held that this was a financial advantage, notwithstanding that at the end of the enjoyment of that temporary benefit, the accused may have been left in the same financial position as before ie, penniless.
Accordingly, I intend to instruct the jury as follows that the accused is guilty of the crime of attempting to dishonestly acquire a financial advantage if it is satisfied beyond reasonable doubt that:
a    The accused engaged in a deception, in particular:
iby making a claim on the insurance company, RACT Insurance, seeking a payment under a policy of insurance;
iiin the course of that claim, the accused represented to the insurance company that the vehicle had been stolen by a person or persons unknown;
iiiwhen that representation was false; and
ivhe knew that it was false.
b    That by that deception, the accused attempted to acquire for himself a payment under the insurance policy. He will have attempted to do so:
iif he intended that his deception would cause the insurance company to accept and pay the claim;
iithat if the insurance company had believed that the accused's claim that the vehicle had been stolen was true, it would have accepted the claim and made the payment to the accused.
c    That the payment under the insurance policy, if made, amounted to a financial advantage. A financial advantage is a benefit which can be valued in terms of money. It would include the certainty of receiving a payout under the insurance policy.
d    That in making this attempt, the accused was acting dishonestly. The accused will have been acting dishonestly if:
ihe knew that the claim that the vehicle had been stolen by a person or persons unknown was false;
iihe believed that the insurance company might not make a payment to him under the policy if it knew the truth, but that it would if it believed that the vehicle had been stolen (it is irrelevant whether or not he was correct in that belief);
iiithe jury considers that, with that knowledge and belief, his conduct was dishonest having regard to the standards of ordinary, decent people.