WINDUS -v- McDONALD [2004] WASCA 172

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WASCA 172
Case No:	SJA:1033/2004	Heard:	23 JULY 2004
Coram:	BARKER J	Delivered:	12/08/04
No of pages:	15	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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Parties:	DARREN JOHN WINDUS DAVID NEIL McDONALD
Catchwords:	Appeal against conviction for attempted fraud Meaning of phrase "with intent to defraud" in s 409(1) Criminal Code (WA) Whether requisite intent existed Whether there was an "attempt" to defraud Turns on own facts
Legislation:	Criminal Code (WA), s 4, s 409(1)(c)
Case References:	Balcombe v De Simoni (1972) 126 CLR 576 Mathews v R (2001) 24 WAR 438 R v English (1993) 10 WAR 355 Re London & Globe Finance Corporation Ltd [1903] 1 Ch 728 Schokker v The Queen [2001] WASCA 84 Lowndes v R (1999) 195 CLR 665 Vrisakis v Australian Securities Commission (1993) 9 WAR 395

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : WINDUS -v- McDONALD [2004] WASCA 172 CORAM : BARKER J HEARD : 23 JULY 2004 DELIVERED : 12 AUGUST 2004 FILE NO/S : SJA 1033 of 2004 BETWEEN : DARREN JOHN WINDUS

Appellant

AND

DAVID NEIL McDONALD

Respondent

ON APPEAL FROM:

Jurisdiction : COURT OF PETTY SESSIONS

Coram : MR BLACK SM

File Number : JO 7633 of 2003

Catchwords:

Appeal against conviction for attempted fraud - Meaning of phrase "with intent to defraud" in s 409(1) Criminal Code (WA) - Whether requisite intent existed - Whether there was an "attempt" to defraud - Turns on own facts

(Page 2)

Legislation:

Criminal Code (WA), s 4, s 409(1)(c)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : Mr M D Cuerden

Respondent : Mr C Williams

Solicitors:

Appellant : Chris Baker & Associates

Respondent : State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Balcombe v De Simoni (1972) 126 CLR 576
Mathews v R (2001) 24 WAR 438
R v English (1993) 10 WAR 355
Re London & Globe Finance Corporation Ltd [1903] 1 Ch 728
Schokker v The Queen [2001] WASCA 84

Case(s) also cited:

Lowndes v R (1999) 195 CLR 665
Vrisakis v Australian Securities Commission (1993) 9 WAR 395

(Page 3)

BARKER J

Introduction

1 The appellant appeals against his conviction on 8 March 2004 in the Court of Petty Sessions at Joondalup of one count of attempted fraud, contrary to s 409(1)(c) of the Criminal Code (WA). For that offence, the appellant was fined $500.

2 The relevant findings of fact made by the court below, which are not contested on this appeal (indeed, the appellant elected not to give evidence in the court below) were as follows:

(1) the appellant had imported a Subaru vehicle into Australia from Japan;

(2) when imported, the vehicle bore a vehicle identification number (VIN);

(3) the appellant had purchased another, damaged Subaru vehicle in Victoria and caused it to be brought to Western Australia;

(4) the appellant replaced the VIN on the…

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.

Continue reading Windus v McDONALD

Details

AGLC: Windus v McDONALD [2004] WASCA 172
Case: [2004] WASCA 172
Decision Date: 12 AUGUST 2004

CaseChat Overview and Summary

The appellant, Windus, was convicted of attempted fraud by the Magistrates Court of Western Australia and appealed the conviction to the Supreme Court of Western Australia. The appeal centred on the interpretation of the phrase "with intent to defraud" in section 409(1) of the Criminal Code (WA) and whether the requisite intent existed to constitute an "attempt" to defraud. The conviction was based on Windus' actions, which involved attempting to use false identification to obtain goods from a business.

The central legal issue was whether Windus' actions constituted an "attempt" under the Criminal Code (WA). The court had to determine if there was sufficient evidence to show that Windus had the requisite intent to defraud and if his actions could be construed as an attempt. The court also needed to clarify the meaning of "with intent to defraud" and assess if the prosecution had proven the necessary elements of an attempted fraud beyond reasonable doubt.

The court found that the requisite intent existed, as Windus' actions were deliberate and aimed at gaining an unfair advantage. The court held that the phrase "with intent to defraud" should be interpreted broadly to include any action taken with the intent to deceive for personal gain. The court also confirmed that an attempt to commit fraud was complete when a person takes a substantial step towards committing the offence, even if the offence itself is not ultimately completed. As the evidence demonstrated that Windus had taken a substantial step towards committing fraud, the appeal was dismissed, and the conviction upheld.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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