Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Appeal - Criminal law and procedure - Appeal against conviction - Fraud - Inducing person to do an act she was lawfully entitled to abstain from doing - Deceiving complainant into subjecting herself to injections by accused falsely pretending to be a surgeon - Section 409(1)(e) and (g) Criminal Code (WA) - Meaning of "intent to defraud" - Whether s 409 applies only in relation to prejudice to economic or property rights or interests or deceit of persons responsible for a public duty

1 ROBERTS-SMITH JA: The appellant appeals against her conviction on two counts of fraud contrary to s 409(1)(e) and s 409(1)(g) of the Criminal Code (WA) ("the Code").

2 On 20 February 2006 she pleaded not guilty before O'Sullivan DCJ and a jury in the District Court at Perth, to five counts of fraud. Each count was in similar terms. Count 1 charged that she:

"(1) On a date unknown between 15 May 2004 and 10 August 2004 at Midvale CLARE LOUISE BOLITHO, with intent to defraud, by deceit or fraudulent means induced VALDA EMILY JEFFERS to do an act that she was lawfully entitled to abstain from doing, namely submitting to medical treatment by injection.

AND THAT VALDA EMILY JEFFERS was of or over the age of 60 years."

3 On 24 February 2006 the jury returned unanimous verdicts of not guilty on counts 1 to 3 inclusive, and guilty on counts 4 and 5. She was sentenced to 2 years' imprisonment, suspended for 2 years and also made subject to a 2 year Intensive Supervision Order.

4 The appeal directly raises the meaning of the element "intent to defraud" in s 409(1)(e) of the Code.

5 Prior to the arraignment of the appellant and in the absence of the jury panel, the trial Judge observed that the circumstances were unusual and he was not quite sure how the State's case was going to be put.

6 The State prosecutor informed his Honour that the State's case was that the appellant, with intent to defraud, by deceit or fraudulent means, induced the elderly complainant to do an act that she was lawfully entitled to abstain from doing, namely submitting to medical treatment by injection. He said it was their case that the appellant held herself out to be an orthopaedic surgeon and induced the complainant to fly from Melbourne to Perth for surgery on her shoulder. That had been preceded by numerous representations by the appellant to the complainant and her daughter, that the appellant was a senior surgeon. She said the counts related solely to the five occasions whereon the appellant administered an injection to the complainant, either by injecting an unknown substance into her or withdrawing fluid from her right shoulder. Had the complainant been aware that the appellant was not a surgeon, she would not have submitted herself to the medical treatment that was administered to her by the appellant.

7 His Honour queried where the intent to defraud was in those circumstances. His Honour noted there was no demand made for payment. That was conceded by the State prosecutor. He said the appellant's intent to defraud related to her façade as acting as a doctor with the intention of inducing the complainant to submit to medical treatment which she would not otherwise have done if she knew the appellant was not a doctor. There was then a lengthy exchange between the trial Judge and the State prosecutor, with his Honour querying how the case was to be put in terms of intent to defraud and deceit. At the end of that exchange, counsel for the appellant at trial informed his Honour that the appellant had actually been committed on five charges of unlawful wounding, however it had been pointed out to the State that there was no medical evidence to establish there was a wound nor, it was submitted, in fact an injection at any time. The State (on the prosecution brief) then presented the indictment containing the five fraud counts which counsel said "does present some problems which have not been fully nutted out" (AB 1/8).

8 His Honour said he thought it did cause problems, not just for the charge to the jury, but in the running of the case itself. He adjourned the case until later in the day to give counsel an opportunity to research the matter.

9 On resumption, the State prosecutor referred to Windus v McDonald [2004] WASCA 172 insofar as Barker J in that case discussed the phrase "with intent to defraud". His Honour referred to the judgment of Gibbs J in Balcombe v De Simoni [1972] HCA 9; (1972) 126 CLR 576 and in particular his Honour's adoption (at 593) of what Buckley J had said about that in In re London and Globe Finance Corporation Ltd [1903] 1 Ch 728 at 732 - 733:

"To deceive is, I apprehend, to induce a man to believe that a thing is true which is false, and which the person practising the deceit knows or believes to be false. To defraud is to deprive by deceit: it is by deceit to induce a man to act to his injury. More tersely it may be put, that to deceive is by falsehood to induce a state of mind; to defraud is by deceit to induce a course of action."

10 On the basis of that, the State prosecutor submitted the jury would need to find whether by deceit the complainant was induced by the appellant to submit herself to medical treatment and if so, subjectively, the appellant intended to deceive the complainant in that manner, to submit to medical treatment.

11 Counsel for the appellant submitted that offences under s 409(1) of the Code must relate to property, and as submitting oneself to medical treatment is not an offence against property, the offence would not lie in the circumstances relied upon by the State. She submitted there was no economic detriment and there was no scope for any part of s 409 covering a detriment to the physical wellbeing of a person.

12 There were further exchanges, but the State position remained that what had to be proved was that deceitful means were utilised to induce the complainant to do something that she was lawfully entitled to abstain from doing, namely submitting to medical treatment, and the appellant did that with the intent to defraud. That is to say, that she knowingly and intentionally deceived the complainant into submitting to the medical treatment as she did. His Honour eventually said that he was satisfied the matter should simply proceed at that stage. He said it did not seem to him to be necessary to prove the causing of economic harm to a complainant in order to establish an intent to defraud; it would be enough to prove an intent to produce a consequence which is in some way detrimental to a lawful right or interest, or opportunity or advantage of a person to be defrauded. That was a reference to the judgment of King CJ in R v Kastratovic (1985) 42 SASR 59.

13 The jury was accordingly empanelled, the appellant was arraigned and the case proceeded.

"Ladies and gentlemen of the jury, the story that you're about to hear is bizarre but true. This is a case about somebody who pretended to be something that she's not. This is a case about somebody who held herself out to be a member of one of the most trusted professions in our community, so convincingly that she conned an elderly lady into flying from Melbourne over to Perth for surgery."

15 The prosecution case, as opened, was in substance as follows.

16 Ms Karen Leiro is the daughter of the complainant, Ms Valda Jeffers. Ms Leiro came to Perth about 2001 and set up a dog washing business. It was through that she met the appellant. The appellant became one of her customers. They would discuss things when the appellant brought her dog to be washed. During these discussions, the appellant made it very clear to Ms Leiro she was an orthopaedic surgeon and indeed one of the best surgeons around. This continued for some years. In fact the appellant had no medical qualifications whatsoever.

17 On a couple of occasions when the appellant was at Ms Leiro's place, she handwrote what purported to be medical certificates, for Marcos Leiro. One was dated 31 May 2004 and "certified" him "totally unfit for work duties" for that day. She described herself in the document as "Surgeon C. Bolitho, C/- Mount Hospital, Orthopic [sic] Ward" and after her signature what apparent qualifications as "MBBS, MPH, Harvard". In a second "certificate" covering the period 11 to 13 August 2004, she described herself as "Head of Orthopedics [sic] The Mount Hospital" with the qualifications "MBBS, CBU, B Hon, Havard [sic]".

18 Ms Jeffers lived in Melbourne. At one stage she had an unfortunate accident in a shopping centre, as a result of which she hurt her shoulder. She went to a number of doctors in Melbourne and was eventually referred to a surgeon for surgery, but was placed on the public waiting list.

19 It so happened that the appellant was with Ms Leiro at the dog washing business while the latter was on the telephone to her mother, talking about the injury and the prospect of surgery, about the middle of 2004.

20 The appellant told Ms Leiro that "those people" in Melbourne did not know what they were doing and that she was a better surgeon than they were and she told Ms Leiro to bring her mother over to Perth and the appellant would perform the surgery on her. The appellant told Ms Leiro that the flight from Melbourne to Perth would be paid for by the Medical Board who paid for a number of patients every year to fly from Melbourne to Perth so that the appellant could perform surgery on them.

21 As a result of what Ms Jeffers was told about this, she cancelled the surgery that had been scheduled in Melbourne and various arrangements were made between Ms Leiro, Ms Jeffers and the appellant to bring her to Perth. Ms Jeffers was then 66 years of age.

22 On the day that Ms Jeffers was supposed to fly to Perth, Ms Leiro received a call from the appellant saying that she did not have the money for the air fare and asking Ms Leiro to pay for it. She only had $200. The appellant said that would do and she would get the money "off [her] tomorrow". Ms Leiro did in fact give the appellant the $200 the following day. (It was ultimately not entirely clear, but it seems that $200 was eventually reimbursed to Ms Leiro. In any event, the State never put its case on the basis of that. Nor did the appellant ever demand payment for her "services"). Ms Jeffers flew from Melbourne to Perth and when she arrived, she initially stayed at her daughter's house in Midvale.

23 The appellant then started visiting the house quite frequently and when she did so she brought all sorts of medical equipment with her. She gave Ms Jeffers some medication, and it was alleged that on five separate occasions she gave her an injection, either by injecting something into her or by withdrawing fluid from her shoulder.

24 A little later the appellant told them that she lived closer to the hospital and in the lead-up to the operation it would be most convenient if Ms Jeffers stayed with her. So Ms Jeffers went and stayed at the appellant's house.

25 There, the appellant made her fast, telling her that she could not eat because she could go into surgery at any time. Through the week that she stayed with the appellant, Ms Jeffers lost seven kilograms. While Ms Jeffers was staying with the appellant, Ms Jeffers also gave her small amounts of money for supposed medical procedures, x-rays and the like. Again, none of these were relied upon by the State as detriment or economic loss occasioned by the alleged frauds.

26 As the date for surgery approached, the appellant gave different reasons why the surgery could not go ahead. For example she said her mother had been shot in Canada and she had to return; and on another occasion, that there had been a mine disaster in Kalgoorlie and she had to go there to perform urgent surgery.

27 In fact, the day of surgery never came. But that is not what Ms Leiro and her husband Marcos thought. The appellant had told them during this week that Ms Jeffers was staying with her, that the surgery had been performed and everything had gone well. She told them that Ms Jeffers was at the Mount Hospital recovering.

28 They went to visit their mother in the Mount Hospital, only to find she was not there. They became very concerned. In the meantime, Ms Jeffers was annoyed and frustrated and told the appellant to either perform the surgery or she would be leaving her house. She did leave, but the appellant brought her back and called Ms Leiro. She and her husband subsequently reported the matter to the police.

29 Police officers later searched the appellant's house and found a range of medical equipment, including a stethoscope, boxes full of needles and a medical kit containing various medications and butterfly needles. The appellant said the equipment was hers, but she had not used any of it on Ms Jeffers, it was for her own personal use and for treating her dog.

30 At the trial, a Chemist, Ms Stevens, testified that she analysed a blood sample taken from Ms Jeffers and on analysis found Tramal in it. That was medication which had previously been prescribed for the appellant, but which Ms Jeffers had never taken.

31 The evidence was that there were five occasions on which the appellant injected Ms Jeffers or withdrew fluid using a syringe. Ms Jeffers said the first three occasions occurred on separate days and on those occasions, normal syringes were used. She said on the fourth and fifth occasions, two injections were given - the first when fluid was withdrawn from her shoulder into a phial using a butterfly needle and the second was an injection to the hip area, supposedly with antibiotics. Ms Leiro was present when the last two procedures were undertaken.

32 At the conclusion of the State case, counsel for the appellant at trial made a submission there was no case to answer. The submission in substance was that s 409 of the Code must be construed as relating only to interests in property and thus could not cover an act which would otherwise constitute an offence of assault or wounding.

33 The trial Judge did not accept that submission. In rejecting it, his Honour said (AB 2/272 - 273):

"I am satisfied that there is a case to answer. In my view it's not the law that there must be some interference with a proprietary right or some economic harm caused to or intended to be caused to a complainant before an offence of fraud under one of the subsections of section 409(1) of the code is committed.

This is a charge brought under section 409(1)(e) and (1)(g). It is clear, I think, that the state [sic] must prove the consequence alleged in subsection 1(e) of section 409 and must further prove an intent to defraud and a deceit. In the context of the intent to defraud it is enough for the state [sic] to prove an intention on the part of the accused to cause a detriment to a lawful right, interest, opportunity or advantage of the complainant, to use the words of King CJ in Kastratovic."

34 The only aspect of the trial Judge's summing up to the jury which bears on this appeal, is that dealing with the offence of fraud. Dealing with the elements of that offence, his Honour said that the prosecution had to prove that the appellant did something by deceit or fraudulent means, namely induced Ms Jeffers to do an act that she was lawfully entitled to abstain from doing, here said to be to submit to a medical injection, and the appellant did so with intent to defraud.

35 His Honour turned first to the expression "with intent to defraud", explaining that to defraud someone is to dishonestly deprive him or her of something which they lawfully have. He observed that often that something would be property or money. He then continued (AB 2/417):

"So classically what victims of fraud are defrauded of is money or some economic benefit or some proprietary benefit but doesn't have to be money, it doesn't have to be property before it amounts to a defrauding. You can be in law defrauded of something much less tangible than money or property. For example, it's possible to defraud someone by dishonestly depriving simply of an opportunity or an advantage which they have.

For example, to dishonestly say to someone at work who is your competitor, if you like, in the workplace that a job opportunity, a promotion opportunity is not open, it's closed so that that person doesn't apply for the job in competition with you is to defraud that person of an opportunity to do something. So as you can appreciate then to defraud someone in that expression embraces not just property or money but also less tangible things such as an advantage or an opportunity.

Now, before something can be said to be a defrauding there must be not just a deprivation of some advantage or opportunity, there must be dishonesty in the actions which bring about that deprivation and, of course, it's dishonest, in simple terms, to deceive someone, to lie to someone, to deliberately mislead someone. To deceive someone is to induce someone to believe that something is true when it's false. I'm sure I don't have to explain that in any detail.

To lie, to deliberately lie to someone so as to deprive that person of some right or interest or advantage or opportunity is to defraud that person. Here, the expression used in the charge is, 'with intent' to defraud, so we're not talking here about actual defrauding at this stage we're talking about a state of mind alleged against the accused here, namely an intention on her part to defraud."

36 A little later his Honour turned to the words "by deceit or fraudulent means". He said (AB 2/419):

"To deceive someone, as I have said, is to induce someone to believe something is true when it is in fact false. Here the state [sic] says Clare Louise Bolitho, the accused, did act not only with intent to defraud but she did so by deceit or fraudulent means; she told a lie in effect or she acted out a lie or deceitfully conducted herself so as to give the impression that something was true when it was in fact false. In short, I don't have to tell you it's the state's [sic] case that the accused effectively said indeed she did say she was a doctor, she was an orthopaedic surgeon.

She set out to give the impression and did give the impression that she was a qualified medical practitioner; qualified to inject Mrs Jeffers. She acted then, on the state's [sic] case, by deceit or fraudulent means, and that's a matter for you. Finally, turning to the third and last element which is in issue, really an issue in this case, that element is reflected in the balance of the words of the charge in the first paragraph. It's said that Clare Louise Bolitho, with intent to defraud by deceit, induced Valda Emily Jeffers to do an act that [she] was lawfully entitled to abstain from doing, namely submitting to medical treatment by injection.

I hardly need I think, members of the jury, to explain those words to you. To induce someone to do something is of course to persuade them to bring about actions on the part of that person, and it's said here that 'with intent to defraud and by deceit' the accused persuaded effectively Valda Jeffers to subject herself to an injection, and of course she was lawfully entitled to abstain from doing that. You will know, I'm sure, without me needing to tell you, members of the jury, that no-one has to submit to an injection.

Mrs Jeffers certainly didn't have to, but she did, on the state's case, and she did and only did because she was deceived, on the state's [sic] case, into believing that the accused was an orthopaedic surgeon who was qualified to treat her, and the state's [sic] case is that the accused acted with intent to defraud Mrs Jeffers in that regard; she had an intention of depriving Mrs Jeffers of an opportunity, a right which she had not to be injected, and she had a right then not to subject herself to the risk of being treated by someone, being injected by someone who was not qualified so to do. Members of the jury, they are the matters that the state [sic] must satisfy you of beyond reasonable doubt before you can convict the accused."

37 No redirection was sought by counsel in respect of any of these matters.

38 The jury retired at 2.51 pm on 24 February 2006. About 3.30 pm they sent the Judge a note. They asked his Honour (AB 2/438):

"The jury would like to request Karen's testimony regarding witnessing the act of injection."

39 As a result, agreed portions of Ms Leiro's evidence were read to the jury. They related to the injections she said the appellant gave her, as well as two injections she witnessed the appellant give her mother. The jury retired again at 3.55 pm. About 5 pm his Honour received another note from the jury. That read (AB 2/442):

"Your Honour, we have reached a verdict on all five counts but they differ and we need to know which charge relates to which events. Could you please let us know what two events Karen witnessed, ie, do we need to differentiate between the charges?"

40 Following discussions with counsel, his Honour directed the jury that (AB 2/444):

"[W]hat we can say is that the first three alleged injections, the single injections delivered on the first three occasions were on the evidence delivered on separate days at Karen Leiro's house upon Valda Emily Jeffers. It is unnecessary for you to be satisfied of any particular date as to those three. It's a question of whether you are satisfied whether one or two or three injections were delivered on separate days as alleged by the state [sic].

What we can also say, having regard to the evidence, is that on the state's [sic] case two further injections were administered to Mrs Jeffers by the accused on the same day and those two injections are counts 4 and 5 on the indictment. Count 4 is the alleged butterfly injection, if I can call it that, and count 5 is the alleged injection of antibiotic. Counts 1, 2 and 3 allege an injection using a simple syringe to withdraw fluid. Count 4 alleges the butterfly injection. Count 5 alleges the use of a simple syringe to inject antibiotics. Against that background, members of the jury, I think that perhaps answers your dilemma."

41 The jury retired again at 5.16 pm and at 5.21 pm returned with their verdicts.

42 There are two grounds of appeal as set out in the appellant's case. They are:

"1. The learned trial Judge erred in law in directing the jury that the relevant act which a person is lawfully entitled to abstain from doing for the purposes of the [sic] s409(1)(e) of the Criminal Code is a right to abstain from undergoing medical treatment by injection by an unqualified person.

1. Further, the Learned Trial Judge erred in law in failing to direct the jury that the fraudulent conduct for the purposes of s409(1)(e) of the Criminal Code must prejudicially affect the complainant in relation to some lawful right, interest, opportunity or advantage which she possessed in the sense of proprietary interests or the carrying out of a public or private duty."

43 Counsel for the appellant proposes that the question raised on this appeal is whether on a proper construction of s 409(1)(e) the relevant act which a person is lawfully entitled to abstain from doing for the purposes of that section includes a right to abstain from undergoing medical treatment by injection by an unqualified medical practitioner - that is, a right (if it can properly be so categorised) in relation to the person and not a right to abstain from doing an act which relates to proprietary interests in its broadest sense or the carrying out of a public or private duty.

44 As I apprehend it, there are two aspects to the appellant's argument. The first is that fraud (and the expression "intent to defraud") has invariably been taken in the authorities to relate to interests in property or some right or advantage with respect to property or to the exercise of a public or private duty. The second is that on its proper construction, s 409 of the Code expresses that same notion, and hence does not cover interference with the person.

Section 409(1)(e) and 409(1)(g) of the Criminal Code: Intent to defraud

45 Part V of the Criminal Code is headed "Offences against the person and relating to marriage and parental rights and duties and against the reputation of individuals". It is in that part that offences ranging from homicide to unlawful wounding and assaults of various kinds are to be found. Part VI of the Code is headed "Offences relating to property and contracts". Division 1 is headed "Stealing and like offences". Section 409 is in ch XL of Div 1 of Pt VI of the Code. Chapter XL is headed "Fraud" and s 409 is now the only section in that chapter.

46 Prior to 1990, ch XL of the Criminal Code was headed "Obtaining property by false pretences: cheating". It contained s 408 to s 413.

47 Section 408 defined false pretence and wilfully false promise.

48 Section 409 created the offence of obtaining by false pretences. It was limited to the obtaining of "anything capable of being stolen", or the obtaining of credit by any person incurring any debt or liability. The obtaining had to be a false pretence or wilfully false promise and done with intent to defraud.

49 Section 410 made it an offence for any person by any false pretence and with intent to defraud, to induce any person to execute or otherwise deal with a valuable security.

50 The marginal note to s 411 was simply "cheating". That section made it an offence for a person, by means of any fraudulent trick or device, to obtain from a person anything capable of being stolen or to induce a person to deliver to any person money or goods. The section did not contain the words "with intent to defraud"; the reference to "fraudulent trick or device" was obviously thought sufficient to import the requisite element of fraud.

51 The marginal note to s 412 was "conspiracy to defraud". The section itself made it an offence for any person to conspire with another "by deceit or any fraudulent means" to affect the market price of anything publicly sold, or to defraud the public or any person or to extort any property from any person. The phrase "deceit or any fraudulent means" was disjunctive; either one or the other would suffice. The section allowed an interesting juxtaposition of the use of fraudulent means as part of a conspiracy to defraud, so as to require proof of two different elements of fraud in the one offence.

52 The last section in ch XL was s 413, which covered frauds on the sale or mortgage of property. The elements of the offence included proof of an intent to induce a purchaser or mortgagee to accept the title offered or produced to them, and (separately) proof of an intent to defraud.

53 By the Criminal Law Amendment Act 1990 (WA) (No 101 of 1990), s 408 to s 413 were repealed and a new s 409 was inserted. The heading of ch XL was changed to "Fraud". These amendments were made in the course of implementing the recommendations made in the Murray Report (M Murray, QC: The Criminal Code: A General Review (Perth, 1983)).

"(1) Any person who, with intent to defraud, by deceit or any fraudulent means -

(a) obtains property from any person;

(b) induces any person to deliver property to another person;

(c) gains a benefit, pecuniary or otherwise for any person;

(d) causes a detriment, pecuniary or otherwise, to any person';

(e) induces any person to do any act that the person is lawfully entitled to abstain from doing; or

(f) induces any person to abstain from doing any act that the person is lawfully entitled to do,

(g) if the person deceived is of or over the age of 60 years, to imprisonment for 10 years; or

(h) in any other case, to imprisonment for 7 years.

Alternative offence: s. 378, 414 or 428.

...

(2) If the value of -

(a) property obtained or delivered; or

(b) a benefit gained or a detriment caused;

is more than $10,000 the charge is not to be dealt with summarily.

(3) It is immaterial that the accused person intended to give value for the property obtained or delivered, or the benefit gained, or the detriment caused."

55 The construction of s 409(1) suggests that the words "with intent to defraud" condition or confine the ambit of par (a) to par (f).

56 The Murray Report recommended a form of words for a definition of "intent to defraud" to be included in s 1 of the Code, and that indeed was originally contained in the amendment Bill. However, it was deleted in Committee. The Hon Peter Foss explained it thus ("Hansard", Legislative Council (Committee), 22 August 1990, 3941 - 3942):

"The definition of the intention to defraud was drawn up on the recommendation of Parliamentary Counsel. It was an attempt to define an intent to defraud, but during the course of reviewing this clause it appeared that Parliamentary Counsel was not happy with the definition and it was decided to remove it to allow the common law definition to apply. The position is not that there is no definition of attempt to defraud, but it will be left to the common law definition as it was prior to this."

57 Unfortunately the meaning of the word "defraud" and the phrase "intent to defraud" at common law has always been vexed. Accordingly, Parliament's intention in respect of s 409 is problematic, because the common law meaning of those words remains unsettled. The courts have had difficulty in attempting an exhaustive statement of what the notion of defrauding entails (Peters v The Queen [1998] HCA 7; [1998] HCA 7; (1998) 192 CLR 493 per Toohey and Gaudron JJ at [30]; Kirby J at [112]; R v Scott [1974] UKHL 4; [1975] AC 819 per Viscount Dilhorne at 838 - 839). The meaning of "intent to defraud" depends upon both the statutory context and previous judicial authority (Welham v Director of Public Prosecutions [1961] AC 103 per Lord Radcliffe at 122).

58 In Welham, the House of Lords had to determine the meaning of the phrase in s 4 of the Forgery Act 1913 (UK), which made forgery with intent to defraud an offence. Section 6 of that Act then made it an offence for any person to utter a forged document. The latter section did not require proof of an intent to defraud. The issue in that case was whether the notion of intent to defraud involved causing some economic loss to the person deceived. In the opinion of the House of Lords, it did not.

59 In construing the phrase in the particular statutory context of s 4 of the Forgery Act, Lord Radcliffe thought there were two preliminary considerations which were material. The first was that because of the use of the conjunctive form, the Act itself recognised there may be at least a significant difference between an intent to defraud and an intent to deceive (Welham, 122). The second preliminary consideration was that by 1913 the word "defraud", when used in connection with forgery, had been a frequent subject of judicial decision and institutional comment. His Lordship had no doubt the words "intent to defraud" as used in s 4 of the Forgery Act had to be understood in light of any established legal interpretation that prevailed at the date of passing of that Act. He then said at 123:

"Now, I think that there are one or two things that can be said with confidence about the meaning of this word 'defraud'. It requires a person as its object: that is, defrauding involves doing something to someone. Although in the nature of things it is almost invariably associated with the obtaining of an advantage for the person who commits the fraud, it is the effect upon the person who is the object of the fraud that ultimately determines its meaning."

"Secondly, popular speech does not give, and I do not think ever has given, any sure guide as to the limits of what is meant by 'to defraud'. It may mean to cheat someone. It may mean to practise a fraud upon someone. It may mean to deprive someone by deceit of something which is regarded as belonging to him or, though not belonging to him, as due to him or his right. It passes easily into metaphor, as does so much of the English natural speech. Murray's New English Dictionary instances such usages as defrauding a man of his due praise or his hopes. Rudyard Kipling in the First World War wrote of our 'angry and defrauded young'. There is nothing in any of this that suggests that to defraud is in ordinary speech confined to the idea of depriving a man by deceit of some economic advantage or inflicting upon him some economic loss.

Has the law ever so confined it? In my opinion there is no warrant for saying that it has ..."

60 His Lordship added that what had to be looked for in considering the effect of cheating upon a person "and so in defining the criminal intent" is the prejudice of that person. Lord Radcliffe went on to acknowledge (at 124) that in 99 cases out of 100:

"[T]he intent to deceive one person to his prejudice merely connotes the deceiver's intention of obtaining an advantage for himself by inflicting a corresponding loss upon the person deceived. In all such cases the economic explanation is sufficient. But in that special line of cases where the person deceived is a public authority or a person holding a public office, deceit may secure an advantage for the deceiver without causing anything that can fairly be called either a pecuniary or an economic injury to the person deceived. If there could be no intent to defraud in the eyes of the law without an intent to inflict a pecuniary or economic injury, such cases as these could not have been punished as forgeries at common law, in which an intent to defraud is an essential element of the offence, yet I am satisfied that they were regularly so treated."

61 Each of the cases which Lord Radcliffe then discussed, involved the forging of documents by which the accused obtained a benefit without occasioning economic or property loss to the person deceived. Those examples were a forged order from a Magistrate directing the release of a prisoner (R v Harris (1834) 168 ER 1316; (1833) 1 Mood CC 393); a forged certificate of false references about employment, used to obtain appointment as a schoolmaster (R v Sharman [1854] EngR 42; (1854) 169 ER 729; (1854) 1 Dears CC 285); a forged letter of recommendation given to a chief constable so as to obtain appointment as a police constable (R v Moah [1858] EngR 120; (1858) 169 ER 1116; (1858) 7 Cox CC 503); and a forged testimonial from a master of a ship used to deceive Trinity House examiners and so obtain a master's certificate (R v Toshack (1849) 169 ER 341; (1849) 4 Cox CC 38). As to these cases, his Lordship said at 125:

"In my opinion it is clear that in connection with this offence the intent to defraud existed when the false document was brought into existence for no other purpose than that of deceiving a person responsible for a public duty into doing something that he would not have done but for the deceit, or not doing something that but for it he would have done. Correspondingly, to put such a document forward with knowledge of its falsity and with a similar intent was to commit the crime of uttering it. That seems to me to be the essential point of the present appeal."

62 Lord Radcliffe then referred (at 125 - 126) to the following passage from the judgement of Buckley J in In re London and Globe Finance Corporation Ltd (supra) at 732:

"To deceive is, I apprehend, to induce a man to believe that a thing is true which is false, and which the person practising the deceit knows or believes to be false. To defraud is to deprive by deceit: it is by deceit to induce a man to act to his injury. More tersely it may be put, that to deceive is by falsehood to induce a state of mind; to defraud is by deceit to induce a course of action."

63 Noting that passage was obiter, Lord Radcliffe observed (at 126) it was no less valuable because it did not contain an exhaustive account of the legal significance of deceit and fraud. Importantly, (at 127), he added that:

"Again, it is said and, I think, justly, that to defraud must involve something more than the mere inducing of a course of action by deceit. But these words, which are found in the last sentence of the whole passage, must be understood in the light of what had gone before. They do not qualify the description of 'defraud' as 'by deceit to induce a man to act to his injury'; what they do is to point the contrast between deceiving, the essence of which is to bring about a state of mind, and defrauding, the essence of which is to bring about a course of action, whether doing something or refraining from something.

It is this last point which constitutes the most important element in the whole passage. It is obvious that it was at once appreciated that it expressed briefly and with felicity the significant distinction between the two kinds of intent when they were referred to together or apart in statutes dealing with criminal offences." (My emphasis).

64 Again, importantly for present purposes, Lord Radcliffe went on to say at 128:

"It was objected that, if defrauding was treated as meaning something so wide as any deceiving of another to his injury, his detriment or his prejudice, it provided a dangerously wide definition of a crime. It was said, for example, that by such a definition the writing of a faked letter to another giving him a fictitious appointment would constitute the crime of forgery. I do not know that I should regard this as so startling a result as to lead me to reconsider what seems to be the long-accepted definition of defrauding: after all, the crime in question only exists if there is the making of a false document in order that it may be used as genuine, which is itself dishonest and a cheat. Words, not being capable of infinite division for purposes of precise measurement, can only convey ideas that are to some extent general, and I think it may be that the imposition suggested does technically constitute the crime of forgery, unless the rule that lex non curat de minimis puts it out of court, or a jury concludes that there was no real intent to prejudice or injure. I suppose that, in any event, these theoretical arguments have to be tried by a certain standard of common sense, and I cannot say that in practice I should expect to see a crop of criminal prosecutions based on tricks or deceptions of this kind.

There is, I think, more weight in the criticism that if, in interpreting the Act of 1913, 'intent to defraud' is given as wide an ambit as to include all deceptions to another's prejudice, there is virtually no ambit left to be covered by the other statutory intent, 'intent to deceive,' since it is difficult to imagine an instance of a man forging a document in order that it should be used as genuine without having at the same time an intention of affecting another's conduct to his prejudice. It is difficult, but it is not impossible. There can be cases, I think, in which there is an intent to deceive and no more."

65 Nor did Lord Denning agree with the suggestion that "to defraud" involved the idea of economic loss (131). At 132 he referred to the definition of "forgery" given by East in his Pleas of the Crown, vol 2, page 852, and observed at 133:

"The important thing about this definition is that it is not limited to the idea of economic loss, nor to the idea of depriving someone of something of value. It extends generally to the purpose of fraud and deceit. Put shortly, 'with intent to defraud' means 'with intent to practise a fraud' on someone or other. It need not be anyone in particular. Someone in general will suffice. If anyone may be prejudiced in any way by the fraud, that is enough."

66 The point at issue in Scott v Metropolitan Police Commissioner [1974] UKHL 4; [1975] AC 819 was whether the offence of conspiracy to defraud necessarily involved deceit by the accused of the person intended to be defrauded. The House of Lords concluded it did not. What was said about whether fraud related only to economical proprietary rights was therefore obiter, but Viscount Dilhorne did discuss it. On the meaning of "defraud" he said at 839:

"I have not the temerity to attempt an exhaustive definition of the meaning of 'defraud'. As I have said, words take colour from the context in which they are used, but the words 'fraudulently' and 'defraud' must ordinarily have a very similar meaning. If, as I think, and as the Criminal Law Revision Committee appears to have thought, 'fraudulently' means 'dishonestly', then 'to defraud' ordinarily means, in my opinion, to deprive a person dishonestly of something which is his or of something to which he is or would or might but for the perpetration of the fraud be entitled.

In Welham v Director of Public Prosecutions [1961] AC 103, 124 Lord Radcliffe referred to a special line of cases where the person deceived is a person holding public office or a public authority and where the person deceived was not caused any pecuniary or economic loss. Forgery whereby the deceit has been accomplished, had, he pointed out, been in a number of cases treated as having been done with intent to defraud despite the absence of pecuniary or economic loss. In this case it is not necessary to decide that a conspiracy to defraud may exist even though its object was not to secure a financial advantage by inflicting an economic loss on the person at whom the conspiracy was directed. But for myself I see no reason why what was said by Lord Radcliffe in relation to forgery should not equally apply in relation to conspiracy to defraud."

67 In Balcombe v De Simoni (supra) the High Court was dealing with s 409 of the Code in its pre-1990 form. The question was whether an intent to obtain property by deceit could constitute the necessary element of intent to defraud required by the section. The Court held it could. Barwick CJ dissented, but noted that the expression "with intent to defraud" did not seem to have any universal connotation applicable in all statutory contexts. Referring to Welham he observed at 583 that the House of Lords gave that expression as contained in s 4 of the Forgery Act 1913 (UK) a meaning which did not require an intention to inflict economic loss on another person. The Chief Justice opined that no universally valid conclusion about the meaning of that expression could be drawn from their Lordships' speeches in that case; but he noticed in passing that Lord Radcliffe agreed that "to defraud must involve something more than the mere inducing of a course of action by deceit".

68 In that case, that which was obtained by the deceit was money, so the question whether the offence might apply to loss or prejudice to rights or interest other than economic or property rights did not arise.

69 In Tan v The Queen [1979] WAR 149, Burt CJ at 153 described the expressions "with intent to defraud" and "with intent to deceive" as "an area of long standing controversy and of real difficulty". With one important qualification, he did not think that a detailed examination of the cases bearing upon forgery at common law or under the English statute was likely to throw much light upon the meaning of the expression as it appeared in s 424 of the Code. The one important qualification to which he referred was that all the cases recognised the distinction between an intent to defraud and an intent to deceive. The essence of the distinction seemed to him to be that to defraud one must cause some prejudice to another, whereas to deceive, as Buckley J expressed it in In re London and Globe Finance Corporation Ltd, is to induce a man to believe that the thing is true which is false, and which the person practising the deceit knows or believes to be false. He agreed that to defraud must involve something more than merely inducing a course of conduct by deceit. His Honour concluded that in the context of s 424 of the Code the expression "with intent to defraud" required an intention to inflict economic loss on another person. The expression could not be understood as being synonymous with intent to deceive. Again, what was in issue in that case was not the question whether to defraud necessarily involved economic loss, but rather whether there had to be an intent to do more than merely to induce a course of action by deceit.

70 Wallace J, concurring with the Chief Justice, referred to Welham, Balcombe v De Simoni and the opinion of Buckley J in In re London and Globe Finance Corporation Ltd, as leading him to the conclusion that the expression "intent to defraud" appearing in s 424 of the Code did require proof of the accused's intention to deprive his employer of property or to act to his injury or detriment.

71 Another case in which the factual circumstances involved economic or financial interests was R v Kastratovic (supra). The charge was demanding money to the amount of $500,000 by virtue of a forged guarantee, knowing it was forged, and with intent to defraud, contrary to s 234 of the Criminal Law Consolidation Act 1935 (SA). The appeal was grounded on a proposition that if (as he claimed) the appellant had an honest belief that the victim owed him the $500,000, that would negative any intent to defraud.

72 The following passage from the judgment of King CJ (at 62 - 63) is a useful summary:

"Although the signification of the expression 'to defraud' or 'with intent to defraud' in its bearing upon the issues in a particular case is to be determined by reference to the law, the courts have never attempted an exhaustive legal definition of these expressions, nor of the cognate expressions 'fraud' and 'fraudulent'. There is some variance in the meaning of the expressions in different contexts. Even in given contexts in which the courts have laid down certain states of mind which constitute intent to defraud, and some which do not, there has been an unwillingness to attempt an exhaustive definition. Human ingenuity in devising dishonest schemes designed to produce an advantage to one person at the expense of another or of the community at large is notoriously fecund. The courts have been understandably reluctant to place themselves in the position of being unable to punish conduct which should by commonly accepted standards be stigmatized at [sic: as] fraudulent by reason of the constraints of an a priori definition framed without thought of conduct of that particular kind.

The essential notion of defrauding is dishonestly depriving some person of money or property, or depriving him of, or prejudicially affecting him in relation to, some lawful right, interest, opportunity or advantage which he possesses. As Lord Radcliffe pointed out in Welham v Director of Public Prosecutions [1961] AC 103, at p 123, 'although in the nature of things it is almost invariably associated with the obtaining of an advantage for the person who commits the fraud, it is the effect upon the person who is the object of the fraud that ultimately determines its meaning'. The detriment suffered by the person defrauded is usually economic but is not necessarily so. To defraud must involve something more than the mere inducing of a course of action by dishonest means: Welham v Director of Public Prosecutions [1961] AC 103, per Lord Radcliffe at p 127. In offences constituted by obtaining money or property with intent to defraud, that something more may be found in the mere parting by the victim of the fraud with money or property which he is entitled to retain and which he would not have parted with but for the use of the dishonest means: Balcombe v De Simoni [1972] HCA 9; (1972) 126 CLR 576. In other cases, the defrauding may consist of deceiving a person responsible for a public duty into doing something that he would not have done but for the deceit, or not doing something that but for it he would have done. In all cases, the element of intent to defraud connotes the intention to produce a consequence which is in some sense detrimental to a lawful right, interest, opportunity or advantage of the person to be defrauded, and is an intention distinct from and additional to the intention to use the forbidden means ... " (My emphasis).

73 After canvassing the authorities, the Chief Justice concluded (at 64):

"The application of the principles which I have derived from the authorities appears to lead to the conclusion that a person is not defrauded if he is caused to do no more than pay his just debt. If no more occurs than that, he cannot be said in any true sense to have acted to his detriment or to have been prejudiced in any lawful right, interest, opportunity or advantage. He has been caused to do no more than perform his lawful obligation ... "

and, (at 65) added that an intent to do no more than procure the payment of a debt presently due and payable to the accused, or which the accused believed to be presently due and payable, by the alleged victim, was not an intent to defraud and was not converted into such an intent by the employment of dishonest means or means which are forbidden by the statute.

74 What King CJ had said in Kastratovic was picked up by McHugh J in Peters v The Queen (supra) at [73] - [74]. That was in the course of consideration of the question whether dishonesty is a separate element of the offence of conspiracy to defraud. That point does not concern us here, but whilst discussing it, McHugh J (with whom Gummow J agreed) referred first to the passage set out above from the opinion of Lord Radcliffe at 123 of Welham v The Director of Public Prosecutions, and then continued ([73] - [74]):

"73 Although most cases of conspiracy to defraud involve an agreement to use dishonest means which has the effect of inflicting economic loss on a third party, the infliction of such loss is not an essential element of the offence. It is sufficient that the conspirators intended to obtain some advantage for themselves by putting another person's property at risk (R v Sinclair [1968] 1 WLR 1246; [1968] 3 All ER 241; (1968) 52 Cr App R 618; R v Allsop (1976) 64 Cr App R 29; Wai Yu-Tsang v The Queen [1992] 1 AC 269) or depriving another person of a lawful opportunity to obtain or protect property (R v Kastratovic (1985) 42 SASR 59 at 65). It is also well established that a conspiracy to defraud may be established if the defendants agree to deceive a person into acting or refraining from acting contrary to his or her public duty (Board of Trade v Owen [1957] AC 602; R v Terry [1984] AC 374; Withers [1975] AC 842 and cf R v Bassey (1931) 22 Cr App R 160).

1. Thus, in most cases, a conspiracy to defraud arises when two or more persons agree to use dishonest means with the intention of obtaining, making use of or prejudicing another person's economic right or interest or inducing another person to act or refrain from acting to his or her economic detriment. Exceptionally, a conspiracy to defraud will also arise when two or more persons agree to use dishonest means to induce a third person to act or refrain from acting in contravention of the third person's public duty. In some cases, it may be sufficient that the object of the agreement to use dishonest means concerns a non-economic right or interest of a person such as private reputation or personal status. But in the vast majority of cases, conspiracies to defraud concern rights or interests having an economic value." (My emphasis).

75 It seems therefore that at the core of the concept of fraud (and hence of the phrase "with intent to defraud") at common law, lies the notion of deceiving someone into acting in some way to their prejudice. That prejudice will ordinarily, but not necessarily, be economic or property loss (or the putting of such interests at risk), and may extend to situations in which the person upon whom the fraud is perpetrated suffers no personal loss, risk or prejudice at all, but is thereby induced to perform a public duty in a way they would not otherwise have done.

76 The ambit of the word "fraud" or the phrase "with intent to defraud" in a particular statutory offence will necessarily then turn on the specific statutory context. In a statutory provision which expressly deals only with money or physical property clearly the defrauding would have to be intended to occasion loss or prejudice to financial or property interests. Other statutory provisions may evince no such limitation. It is therefore necessary to examine the particular provisions.

77 As the meaning of the phrase in s 409(1) is ambiguous or obscure, in determining its proper construction, consideration may be given to extrinsic material capable of assisting in that task, including the Murray Report and the Second Reading Speech of the Minister, or proceedings in Parliament (Interpretation Act 1984 (WA), s 19(1)(b)(i) and (2)(b), (f) and (h)).

78 The author of the Murray Report certainly intended that s 409 would have the widest possible ambit. He intended that what he described (report, page 266) as the "... series of rather fragmentary provisions" in Ch XL of the Code be replaced "with a single provision of a general nature having a wider coverage", with the hope that the new provision would not require interpretation "in a technical or legalistic way", and would be capable of encompassing a wide variety of factual circumstances.

79 The first recommendation made by Murray QC (as he then was) in this area was that all of s 408 - s 413 should be repealed and re-enacted as s 409 "as a general fraud offence based on the UK Theft Act [1968], but wider". He explained that the offence proposed was defined in terms of actions done or results produced by the offender, which were to be rendered criminal particularly because of the intent with, or means by, which they are done. He argued for the use of the words "by deceit or any fraudulent means" as being a wider concept than the word "deception". He gave this example (page 267):

"[I]f the offender merely sneaks into a cinema, he does not obtain that financial advantage by deception. He does however, fall within that description, if instead of sneaking into the theatre he tells a lie to the staff to the effect that he has lost his ticket. I see no reason in principle why the one case should be punishable and the other case not. Certainly the proposed formulation incorporating 'fraudulent means' would be wide enough to cover the situation where the individual 'steals' services rather than tells a lie to obtain them."

80 Murray QC said it was intended to adhere to the mental element described by the phrase "intent to defraud", rather than import the United Kingdom concept of dishonesty. He then referred to some of the authorities already discussed above. He noted (268) that in Welham, it had been held not necessary that the right prejudiced should be a proprietary right; and that in Balcombe v De Simoni the High Court had held that the intent to defraud in s 409 of the Code, essentially involved dishonesty rather than the causation of economic loss - it involved an intent to induce the victim to do what he would otherwise not have done. He referred to Tan, commenting that Wallace J, after reviewing relevant authorities, had concluded that an intent to defraud within the meaning of s 424 of the Code was established by proof that the accused intended to deprive his victim of property or to cause him to act to his injury or detriment, not necessarily of a pecuniary or economic nature. (I note in passing that those last words are not in fact to be found in the judgment of Wallace J). Murray QC said that conclusion crystallised the essential features of the intent upon which he had based the proposed definition of "intent to defraud" to be inserted in the Code. He considered the need for that definition was reinforced by Re Attorney-General's Reference No 1 of 1981 [1982] WAR 96, in which the court expressed the view that in relation to s 419 of the Code, an intent to cause economic loss was necessary.

81 It is more than plainly apparent from the discussion by Murray QC in his report, that the concept he intended to be embodied in s 409 of the Code was that of by fraudulent means inducing a person to act to their injury or detriment, not necessarily of a pecuniary or economic nature, but also by inducing the victim to do what they otherwise would not have done, to their prejudice.

82 Thus, Murray QC described the effect of some of the paragraphs of s 409(1) as follows:

"5. The recommended paras (c) and (d) are substantially based upon the UK and Vic provisions mentioned above, and a similar offence which has been recommended to be introduced in NSW. Those offences of course, talk of the obtaining of a financial advantage, and I have converted that to gaining a benefit, pecuniary or otherwise. Paragraph (d) has been introduced for completeness and to cover those odd cases which do occur where it might be argued whether or not a benefit has been gained by any person, but it is clear that a detriment has been caused to the victim or another, by means of the fraud perpetrated. The wording I have chosen is consistent with that employed earlier in the Code, such as Section 84 dealing with official corruption. I have thought it as well not to limit the application of this Section to benefit or detriment of a pecuniary or financial nature. Generally of course, it will be possible to place a financial value upon the gain made or the harm done, but it is not necessarily so in our experience and I see no reason why it should not be punishable under this offence to gain a benefit or cause harm to another upon which it is difficult to place a monetary value. However, the provisions in paras (c) and (d) are particularly designed to cover the obtaining of services by fraud (eg the use of hire cars, hotel rooms, repairs to property, etc). The provisions are also suitable to cover the passing of 'dud' cheques, and activities such as the simple theft of services and energy. The advantages of incorporating all the provisions (a) to (d) in the one section over having them in two sections as in the UK and Vic is that one very often finds that a scheme of fraud involves the obtaining of goods and services (eg food and accommodation or motor vehicle parts and repairs). Having all the provisions in the one section means that as the section has been framed the different paragraphs simply represent different methods by which the one offence may be committed. Therefore, it would be possible to frame an indictment covering in the one count both aspects of such a fraudulent scheme rather than having two counts in an indictment, as would otherwise be the case if the two different aspects were split into two different offence creating sections.

1. The recommend [sic] para (e) is a wider provision than is elsewhere to be found in this area of the criminal law in comparable jurisdictions. In terms of the practical operation of the section in a particular factual situation, it may indeed not be necessary at all, but it would be apt to cover fact situations which particularly would not fall under either paragraph (c) or (d). Let us take for example, an individual who obtains a ride in a private motor vehicle by a false statement that he needs to get quickly to a particular destination to visit a particularly sick relative. If there was any argument as to whether or not that represented the obtaining of a benefit, then it is clear that there could be no argument that the deceit of the accused induced the driver of the private motor vehicle to do an act which he was lawfully entitled to abstain from doing. That is, to take the accused as a passenger from point A to point B." (My emphasis).

83 In Re Attorney-General's Reference No 1 of 1981 (supra), the question was whether an intent to cause a person "to act in any way to his prejudice or contrary to what would otherwise be his duty" was an intention to defraud within the meaning of s 419 of the Code. That section dealt with directors and officers of corporations or companies fraudulently appropriating property, keeping fraudulent accounts or falsifying books of accounts. Burt CJ (Wallace and Smith JJ concurring) held the section was concerned with the doing of an act in the context of a particular relationship which can be said to be fiduciary in character and for the purposes of that section it was necessary to prove an intention to cause (or the causing of) economic loss or detriment, to establish the "intent to defraud" of which it spoke.

84 The Chief Justice observed that the speeches in Welham recognised the meaning of the expression is very much controlled by its context, and that it was also made clear in that case that it was concerned only with the meaning of the phrase as it applied in s 4(1) of the Forgery Act 1913. His Honour pointed out the expression in the case before him was not being considered as an element of the crime called forgery. The description of the necessary mental element for the offence of forgery under s 471 of the Code spelled out that element, without using the phrase "intent to defraud", in terms consistent with the common law of forgery and as articulated in Welham. By contrast, s 419 of the Code did use the expression "with intent to defraud", and it also provided for a more severe penalty than forgery. His Honour considered (97 - 98) that if it had been Parliament's intention that an "intent to defraud", as used in s 419 and s 424 of the Code, was that intent which was the element in forgery, he could see no reason why the same words were not used, unless the phrase in s 419 and s 424 was intended to have the more restricted meaning.

85 The 1990 amendment to the Code which replaced the five previous offences with the single offence in s 409 was the subject of strong criticism by George Syrota in an article "Criminal Fraud in Western Australia: A vague, sweeping and arbitrary offence", Western Australian Law Review, Vol 24, December 1994, page 261.

86 Syrota considers the first aspect of potential confusion is the decision by Parliament to rely on the common law for the meaning of "intent to defraud", since at common law that phrase had been given a multiplicity of different meanings in different contexts. He expresses the view that a further dimension of uncertainty is added by the use of the words "fraudulent means", which are nowhere defined in the Code, the meaning of which has never been authoritatively settled by case law and which gives s 409 "a most uncertain ambit" (263). Syrota observes that the Murray Report claimed the new s 409 was substantially based on cl 15(3) of the Theft Bill 1968 (UK), but was wider in scope and had "jettisoned" some of the most important limitations applicable to cl 15(3). One of those was the requirement that the accused must act with a view to financial gain; that limitation was not incorporated into s 409, with the result that (263):

"the new Western Australian offence is even broader than clause 15(3), which was rejected by the British Parliament on the grounds of its vagueness and all-encompassing nature."

87 Although critical of the decision by Parliament to retain the common law meaning of "intent to defraud", Syrota was clearly opposed to the definition proposed by the Murray Report. That would have defined intent to defraud as (272):

"An intent to act or induce another to act in a way which would be to the detriment or prejudice, pecuniary or otherwise, of another person."

88 Syrota regards that as "unremarkable" insofar as it covered pecuniary (ie economic) detriment, but as very problematical in its extension to non-pecuniary harm. That extension, he says, would have opened up a broad field of criminal liability, which he instances as potentially including practical jokes, sexual intercourse induced by false representations of celebrity status or "queue-jumping" for hospital services by means of falsely representing the gravity of one's illness.

89 On the point whether s 409 encompasses non-economic harm, Syrota prefers the analysis of Burt CJ in Re Attorney-General's Reference No 1 of 1981, that where Parliament intends an offence to penalise both economic and non-economic prejudice, it does not use the phrase "with intent to defraud" but chooses different phraseology instead, as in the form of s 471. On the other hand, where it intends an offence to penalise economic detriment only, it uses "intent to defraud". Syrota concludes that by rejecting the Murray definition and opting instead for the unvarnished "with intent to defraud", Parliament chose to limit the new offence to economic harm alone. However, he notes that this interpretation is belied by s 409(1)(c) and (d) which expressly state that the consequent benefit or detriment may be "pecuniary or otherwise", and he does not advert to s 409(1)(e) or (f), which are in terms the widest of all the paragraphs in subs (1). Furthermore, it must be noted that the former s 471 (which created the offence of forgery and was part of the reasoning of Burt CJ in Re Attorney-General's Reference No 1 of 1981 to support his conclusion), has since been repealed and replaced by a new and simpler provision, s 473, which does include the expression "with intent to defraud".

90 Syrota also identifies other difficulties in subs (1)(a) - (f), with the words "benefit" and "detriment". He observes that the Murray Report stated these terms should be interpreted to include benefits and detriments on which it is not possible to place a monetary value, yet s 409(2) requires that, "in every case" the benefit or detriment "must" (original emphasis) be given a dollar value for the purposes of determining the mode of trial. This argument, based on the purported effect of s 409(2) was also relied upon by counsel for the appellant in support of her submission that s 409 is confined to economic or proprietary loss or prejudice, or to inducing a person to act in breach of a public duty.

91 In my opinion s 409(2) does not require that the benefit or detriment must be given a dollar value in every case. It may quite sensibly be read to mean no more than where the benefit or detriment is in fact able to be quantified in dollar terms, then the charge is not to be dealt with summarily where that value exceeds $10,000.

92 In his Second Reading Speech on the Criminal Law Amendment Bill 1990, the Hon G Edwards, Minister representing the Hon Attorney General, said, ("Hansard", Parliamentary Debates, Legislative Council, 17 May 1990, page 1075), the purpose of the proposed new general fraud offence was to modernise and broaden the coverage of existing offences in this area. That was certainly the avowed intent of the Murray Report. The construction of the phrase "intent to defraud" favoured by Burt CJ in Tan and Re Attorney-General's Reference No 1 of 1981 in s 424 and s 419 of the Code respectively, cannot be apt under s 409(1)(c), which refers to the gaining of a benefit "pecuniary or otherwise". The expression must have the same meaning throughout the section, however widely or narrowly it is to be construed. It cannot have been Parliament's intention that a phrase used in the introductory part of subs (1) would have a different meaning depending upon which of the paragraphs of that subsection was being relied upon in a particular case. Furthermore, a proper construction must leave work for pars (e) and (f) to do which is not covered by the other paragraphs of the subsection, particularly the wide pars (c) and (d).

93 In Lewis v The Queen (1998) 20 WAR 1 the appellant was the senior property finance officer at a finance company. He was convicted of a number of offences, including stealing as a servant, conspiracy to defraud; conspiracy to give a secret commission, and two counts of false accounting with intent to defraud, contrary to s 424(c) of the Code. That was the same section which had been the subject of the holding by the Court of Criminal Appeal in Tan. Malcolm CJ (with whom Kennedy and Ipp JJ agreed), having discussed Tan and Re Attorney-General's Reference No 1 in light of the subsequent decisions of the South Australian Court of Criminal Appeal in Kastratovic and of the High Court in Peters, concluded (at 37 - 38):

"Although all of these statements were made in the context of the offence of conspiracy to defraud, the existence of an intention to defraud is an element of that offence as much as it is an element of the offences under ss 419 and 424 of the Criminal Code. In my opinion the definition of 'intent to defraud' must now be taken to be wider than that stated in Tan and Re Attorney-General's Reference. It must be taken to extend to the case where, even though there is not an intention to cause economic loss, there is an intention to deprive another of his or her property or of the opportunity to protect his or her interests. The offence under s 424(c) may be made out even where the offender genuinely believes that there will be no loss because the transaction in question will ultimately be to the advantage of all concerned, even those whose interests have been put at risk: see Archbold Criminal Pleading, Evidence and Practice (at pp 17-89; 17-94). See also Clark & Bodlovich (at 190), per Kennedy J; Adams v The Queen [1995] 1 WLR 52 at 65E, 67B."

94 As to the proper construction of s 409 of the Code the appellant relies upon the following passage from the judgment of Malcolm CJ in Graham-Helwig v Western Australia [2005] WASCA 127; [2005] WASCA 127; (2005) 30 WAR 221 [2], in which the then Chief Justice said that the section:

"which creates the offence of fraud has been said to bring together some of the forms of dishonest conduct in relation to property which fall outside the scope of the offence of stealing. Section 409(1)(e) - (f) extends to inducing acts or omissions." (My emphasis)

95 The appellant emphasised the words "dishonest conduct in relation to property". I do not read that obiter remark as intended to be in any way definitive of the scope of s 409. It was clearly no more than a passing reference to one way in which the scope of dishonest conduct covered by the section had been widened. It does not in my opinion assist the resolution of the present question.

96 I accept, as I think does counsel for the respondent, that no case has been found in which the infringed lawful right, detriment or disadvantage on a charge of fraud or conspiracy to defraud has been constituted by a physical infringement of or interference with the complainant person. That, of course, does not mean conduct of that kind could not be within the scope of a deliberately broadened statutory provision such as s 409. What can be drawn from it I think, is that the legislature should not too readily be thought to have intended a consequence so significantly widening the ambit of the criminal law unless such intent is clearly expressed or necessarily conveyed in the relevant provision.

97 Ms Prince also submits that, albeit made in the context of the Bankruptcy Act 1966 (Cth), a passage from the judgment of Brennan CJ and McHugh J in DM Cannane v J Cannane Pty Ltd (in liq) [1998] HCA 26; (1998) 192 CLR 557 is relevant to the proper construction of s 409(1)(e) of the Code. The passage upon which she relies is at [30]. That is in fact a passage from the judgment of Gaudron J. Her Honour there said:

"'Fraud' involves the notion of detrimentally affecting or risking the property of others, their rights or interests in property, or an opportunity or advantage which the law accords them with respect to property. Conversely, it is not fraud to detrimentally affect or risk something in or in relation to which others have no right or interest or in respect of which the law accords them no opportunity or advantage. And there is no intent to defraud if the person in question believes that others have no right or interest in or in relation to the property concerned and that the law accords them no opportunity or advantage with respect to that property."

98 Once again, statutory context is critical. The High Court in that case was dealing with s 121(1) of the Bankruptcy Act which relevantly read that:

"a disposition of property ... with intent to defraud creditors, not being a disposition for valuable consideration in favour of a person who acted in good faith, is, if the person making the disposition subsequently becomes a bankrupt, void as against the trustee in the bankruptcy."

99 The facts concerned the transfer of shares prior to the appellant's bankruptcy and the winding up of his family company. The case was about an alleged fraud in relation to property assets. There was no occasion for the Court to be concerned with any notion that s 121(1) (or the concept of fraud generally) might encompass interests other than financial or property interests. Even so, it may be noted that Gaudron J prefaced the foregoing passage with the comment that it is notoriously difficult to provide an exhaustive statement as to what is involved in the concepts of "fraud" and "intent to defraud". Again, in the context of that case I would read that passage as generally descriptive rather than definitive, and not necessarily affording any guidance on the proper construction of a quite deliberately different statutory provision in a different Act.

100 The next submission advanced by the appellant is that there must be a legal relationship between the parties or a public or private duty to found the basis for a charge of fraud under s 409(1)(e), and there was no such relationship here. In support of this she cites Spies v The Queen [2000] HCA 43; (2000) 201 CLR 603.

101 In Spies v The Queen (supra) the appellant was a director of a corporation. He was charged under s 176A of the Crimes Act 1900 (NSW) with defrauding the corporation's creditors by having caused the corporation to buy shares in another company. The prosecution case was that as a result of that transaction the corporation's creditors were less likely to recover their debts. The High Court held that case was misconceived.

102 Here too of course, the case did concern interests in property, so the Court's discussion of fraud and intent to defraud was conducted against that background. The point on which it is relied by the appellant has to do with the need for a legal relationship between the parties. As to that, the majority (Gaudron, McHugh, Gummow and Hayne JJ) said at [92]:

"No doubt, as s 176A recognises, a person may be able to defraud the creditors of a corporation in their dealings with the corporation. But that will be because in some way or other that person has dealt with the creditor or creditors or, if he or she has not had any dealing with them, has obtained or used or prejudiced what belongs to the creditors by dishonest means. The appellant had no relevant dealings with the creditors and obtained no property of any creditor. Nor did he alter their legal rights. It is not enough to constitute 'defrauding' that an accused has acted dishonestly or that his or her dishonest conduct has had an effect on creditors. As Lee J pointed out in Re Hymans & Public Accountants Registration Act (119), a 'vast number of offences involve dishonesty, but are not offences involving fraud'."

103 Their Honours had earlier observed (at [90]) that while on the evidence there was a case that the appellant intended to prevent the corporation and any liquidator of it recovering from him a debt he owed before the transaction, and to hinder or delay his own creditors, it was absurd to suggest he was intending to hinder or delay the creditors of the corporation, even if the effect of his actions may have made it less likely that they would recover the full amount of the debts owing to them.

104 I do not see what was said in Spies v The Queen (supra) as constituting an obstacle to the respondent's case here. There was a direct relationship between the appellant and Ms Jeffers. The appellant made representations to Ms Jeffers both indirectly through Ms Leiro and directly. She induced Ms Jeffers to rely upon her and to act in a particular way, including allowing the appellant to give her injections. There could be no doubt the appellant's intent was to cause Ms Jeffers to do that. The real question is, whether the right to submit herself to medical treatment by injection or not to do so, was a lawful right to do or abstain from doing something within the meaning of s 409(1)(e) of the Code - and more specifically, whether an intent to cause her to do that could constitute an intent to defraud within the meaning of that section.

105 The next submission made by the appellant is that there is a number of Western Australian authorities dealing with s 409(1)(e) which are illustrative of the interpretation for which the appellant contends. They include: Markarian v The Queen [2001] WASCA 393; McPharlin v The Queen, unreported; CCA SCt of WA; Library No 970665; 10 October 1997; Johnston v The Queen, unreported; CCA SCt of WA; Library No 960714; 13 December 1996; and Windus v McDonald (supra).

106 The appellant relies upon those authorities because they are all cases of fraud which factually involved other property interests or the performance of a public duty. There is no question such circumstances fall within s 409(1). It does not follow that they are the only factual circumstances which can.

107 Following the hearing of the present appeal, this Court, differently constituted (Steytler P, Pullin JA and Miller AJA), delivered judgment on 8 March 2007 in Moylan v The State of Western Australia [2007] WASCA 52. As one of the grounds of appeal there raised the meaning of "gains a benefit, pecuniary or otherwise" in s 409(1)(c) of the Code, we drew it to the attention of the parties and invited them to make further written submissions if they wished to do so. In the event, both parties did. I have considered them carefully.

108 In Moylan the appellant was convicted of an offence that he, with intent to defraud, by deceit or fraudulent means gained a benefit, namely the opportunity to apply for the position of Chief Executive Officer of the City of South Perth ("the City"). There were three grounds of appeal. That relating to the element of "gaining a benefit" asserted that the element could not be made out at law and the jury should have been so directed.

109 The facts, briefly, were as follows. The appellant was General Manager of the City. The Chief Executive Officer was a Mr Metcalfe. The latter took sick leave to have a back operation. He was recuperating at home when he was visited by the appellant. There was more than one visit. The appellant conveyed to Metcalfe that the council were unhappy with his management and wanted to make changes. They had arrived at two options for him. The first was that he could remain an employee but with a substantial reduction in salary; the second was a negotiated immediate separation with a generous payout. To that point, Metcalfe had no thought of retiring. His intention was to continue as Chief Executive Officer when he returned from sick leave. But the appellant subsequently persuaded him that the Council had decided to terminate his services and contest any unlawful dismissal claim, if he did not resign forthwith. So Metcalfe did. The appellant was then able to arrange the termination payment. The position of Chief Executive Officer was subsequently advertised. The appellant applied for it. There was a selection process, and he was appointed. As Miller AJA explained it ([61]):

"The benefit which the appellant was alleged to have gained was 'an opportunity to apply for the position of CEO of the City of South Perth'. The prosecution case was that, prior to the appellant's visit to Mr Metcalfe, he (Mr Metcalfe) had never contemplated resignation from his position as Chief Executive Officer. It was the alleged fraudulent and dishonest conduct in representing to Mr Metcalfe that the council had authorised certain options and the ultimatum that it would fight a wrongful dismissal suit that constituted the fraudulent and dishonest conduct. The prosecution alleged that, by reason of the communication of these wrongful assertions to Mr Metcalfe, the appellant was afforded the opportunity to apply for the position of Chief Executive Officer once Mr Metcalfe decided that he would accept the options fraudulently put before him by the appellant."

110 The point in issue was whether an opportunity to apply for a position, there being no certainty of getting it, could constitute a benefit within the meaning of s 409(1)(c) of the Code. Miller AJA (Steytler P and Pullin JA agreeing) held (at [64]) that the opportunity given to the appellant to apply for the position, which had become vacant by reason of what was arguably a deceitful process on his part, was quite capable of constituting the gaining of a benefit. He was thereby placed in a "superior position" (Director of Public Prosecutions v Raines (1995) 79 A Crim R 448). The word "benefit" in ordinary usage has a wide meaning (R v Pedersen [1995] 2 NZLR 386; Mansfield v Director of Public Prosecutions [2007] WASCA 39, [41]). Miller AJA held it did not matter that the opportunity was qualified, because others might also apply for the position, nor that applications for the position involved consideration of the merits of the applicant. He said it was the opportunity which the appellant had by reason of his alleged deceitful conduct in bringing about Metcalfe's resignation that constituted the gaining of a benefit.

111 The appellant submits Moylan is yet another example of the commercial flavour of the s 409 provisions. The case is characterised as one in which the appellant intended to take advantage of the opportunity to increase his salary and earning capacity by applying for the position.

112 I would not characterise Moylan in the way counsel for the appellant does. The "opportunity" which the appellant there obtained, was the opportunity to apply for a position. No doubt, his successful appointment would have meant an increase in salary and other financial benefits. There would have been no loss suffered by the city in paying him (the Chief Executive Officer, whoever it was, had to be paid) and it was not a matter of inducing a public officer to do (or refrain from doing) something. As the Court there recognised, he might not have been appointed, but that did not prevent the opportunity to apply being characterised as a "benefit", because it placed him in a situation superior to that in which he would have been if the position was not vacant; it was an opportunity he would not otherwise have had.

113 There is another important aspect of Moylan. It goes to the submission made in this case that subsection (2) of s 409 assumes that the subject matter of offences under the section must relate to property or interest in property because it has to be capable of quantification in money terms. The "benefit" in Moylan, characterised as the opportunity to apply for a position, clearly was not capable of being quantified in that way. Nor would some of the cases which have been recognised as within the scope of fraudulent conduct be so capable, such as Harris, Sharman, (probably Moah) and Toshack, mentioned above. The "private or public duty" cases would not seem to fall within subsection (2).

114 Although the subsection refers specifically to "property", "benefit" and "detriment" it makes no reference to "act" (or the consequences of doing or abstaining from doing an act) under s 409(1)(e) - (f). That is another reason for thinking the legislature intended those provisions (as well as subsections (c) and (d)) could operate in relation to something not capable of quantification in money terms.

115 In any event, as counsel for the respondent submits, the facts of the case do not assist the resolution of this appeal because most frauds arise in a commercial context or involve some pecuniary benefit or loss. The question here is whether that must always be so. Even if Moylan could properly be characterised as a case involving a financial benefit, that fact would say nothing in answer to the question at issue.

116 In my view, what the reasoning in Moylan does indicate is that on their plain meaning the various paragraphs of s 409(1) have a wide operation.

117 I come now to the appellant's final submission. It turns upon the provision for conviction of alternative offences in respect of subsection (1) of s 409. The alternative offences provided for are those contrary to s 378, s 414 or s 428 of the Code. As the appellant points out they all relate to property. Section 378 is the offence of stealing. The offence relates to anything capable of being stolen. Things capable of being stolen are adumbrated in s 370 of the Code. By s 371 the taking or conversion of anything capable of being stolen, or any property, is said to constitute stealing. The term "property" is defined in s 371(7) as including, inter alia, rights to property. It is not necessary to detail the definition here.

118 Section 414 of the Code deals with the offence of receiving stolen property and s 428 makes it an offence to possess stolen or unlawfully obtained goods.

119 The appellant's submission is that as all of the alternative offences provided for in s 409(1) involve property, and offences such as assault, unlawful wounding or other offences against the person are not alternatives available under that section, that is a clear indication of the legislative intention that s 409 relates to dishonest conduct in relation to property including interference with public and private duties but does not include interference with the person.

120 The reference to alternative offences in s 409(1) is given effect to by s 10B of the Code, so that where an accused is charged with an offence under s 409(1) but that is not proved, they may be convicted on that indictment or complaint of an offence under s 378, s 414 or s 428 if such is established on the evidence.

121 If that were all there was the restriction specifically to property offences, of alternative offences under s 409(1), might be a strong indication that the legislature intended the latter to apply only to frauds

involving property or interests in property. But that is not all there is. First, none of the statutory alternatives would necessarily apply in a case of an offence charged under s 409(1)(c), (d), (e), or (f) where the benefit or detriment or the consequence of an act done (or abstained from) is other than pecuniary. It may be readily envisaged that in such cases none of the statutory alternatives would be available on the facts.

122 Secondly, and to my mind more significantly, par (e) and par (f) must have work to do which is not done by the other paragraphs of that subsection.

123 Paragraph (e) and par (f) would cover the notion of private or public duty fraud. But the Murray Report appears not to have intended that they be confined to such cases. There was no aspect of private or public duty in the motor vehicle example given in the report of the possible application of par (e). The legislative intent was to give effect to the Murray Report in respect of s 409(1) and so the ambit of par (e) and par (f) must be wider than applying only to private or public duty fraud.

124 When one has regard to the wide scope of the section and the ambit of the words "intent to defraud" envisaged in the Murray Report, the clear legislative intent to broaden the coverage of existing offences in this area and the wording and structure of s 409 itself, it must be that the intent contemplated by the phrase (applicable to all the paragraphs of subs (1)) is an intent to induce a person to act to their detriment (or risk of detriment), economic or otherwise, or to do something which they lawfully could otherwise not have done, or to abstain from doing something which they lawfully could otherwise have done. The last two formulations would encompass (but would not be limited to) inducing a breach of a private or public duty or an exercise of such in a way which would not otherwise have been done, but for the deceit.

125 It follows that the trial Judge did not err in his directions to the jury in either of the ways postulated by the grounds of appeal. Each ground of appeal accordingly fails. I would dismiss the appeal.

126 McLURE JA: The issue in this appeal is the meaning of the phrase "intent to defraud" in s 409 of the Criminal Code (WA). The prosecution case at trial was that the appellant intended to defraud the complainant by obtaining her consent to receive gratuitous medical treatment in the form of injections. In the absence of consent or if consent was obtained by fraud, the conduct would constitute an offence against the person such as, for example, an assault (ss 222 and 223 of the Criminal Code).

"(1) Any person who, with intent to defraud, by deceit or any fraudulent means -

(a) obtains property from any person;

(b) induces any person to deliver property to another person;

(c) gains a benefit, pecuniary or otherwise, for any person;

(d) causes a detriment, pecuniary or otherwise, to any person;

(e) induces any person to do any act that the person is lawfully entitled to abstain from doing; or

(f) induces any person to abstain from doing any act that the person is lawfully entitled to do,

(g) if the person deceived is of or over the age of 60 years, to imprisonment for 10 years; or

(h) in any other case, to imprisonment for 7 years.

Summary conviction penalty (subject to subsection (2)):

(a) in a case to which paragraph (g) applies: imprisonment for 3 years and a fine of $36 000; or

(b) in a case to which paragraph (h) applies: imprisonment for 2 years and a fine of $24 000.

(2) If the value of -

(a) property obtained or delivered; or

(b) a benefit gained or a detriment caused;

is more than $10 000 the charge is not to be dealt with summarily.

(3) It is immaterial that the accused person intended to give value for the property obtained or delivered, or the benefit gained, or the detriment caused."

128 Section 409 was inserted in the Criminal Code by the Criminal Law Amendment Act 1990 (WA) (No 101 of 1990). The provision as it applied at the time of the offences differed from the above in only minor and irrelevant respects. It replaced the former offences in s 409 (obtaining property or credit by false pretences), s 410 (obtaining the execution of a security by false pretences), s 411 (cheating) and s 413 (frauds on the sale or mortgage of property). All these former offences related to property in one form or another.

129 The amendments were based on recommendations made by Mr M Murray (as he then was) in his report "The Criminal Code: A General Review" (1983). The report recommended that ss 409 - 411 and s 413 be repealed and re-enacted as s 409 as a general fraud offence based on the Theft Act 1968 (UK), but wider. Section 15 and s 16 of the UK Theft Act established the offences of obtaining property by deception and obtaining a pecuniary advantage by deception in which the concept of dishonesty replaced the requirement of an intent to defraud and focus was placed on what the person committing the fraud obtained (property or a pecuniary advantage) rather than the effect on the victim. The Murray Report proposed a broad definition of "intent to defraud".

130 The Bill for the 1990 Act contained a definition of "intent to defraud" but that was deleted in the course of the passage of the Bill through Parliament, the expressly stated intention being that the common law definition apply. The difficulty with that is no court has been so bold as to attempt to provide an exhaustive definition of the phrase. In construing its meaning it is necessary to be mindful of the other provisions of the Criminal Code where intent to defraud is an element of the offence. They include s 424 (fraudulent falsification of records), s 473 (forgery and uttering), s 510 (personation), s 527 (fraudulent dealing with property by a judgment debtor) and s 532 (giving a false or misleading receipt to an agent). Section 424 and s 473 were also inserted by the 1990 Act. All of the offences where intention to defraud is an element are contained in Pt VI of the Criminal Code which is headed "Offences relating to property and contracts".

131 It is convenient to commence with a survey of the English authorities on the meaning of the expression intent to defraud.

132 A relevant issue is the nature of the distinction between the phrases "intent to deceive" and "intent to defraud". Buckley J in In re London and Globe Finance Corporation Ltd [1903] 1 Ch 728 considered the statutory offence of making or publishing a false statement or account, or a false or fraudulent entry "with intent to deceive or defraud". He said (at 732 - 733):

"To deceive is, I apprehend, to induce a man to believe that a thing is true which is false, and which the person practising the deceit knows or believes to be false. To defraud is to deprive by deceit: it is by deceit to induce a man to act to his injury. More tersely it may be put, that to deceive is by falsehood to induce a state of mind; to defraud is by deceit to induce a course of action."

133 The House of Lords in Welham v Director of Public Prosecutions [1961] AC 103 considered the meaning of the phrase "intent to defraud" in the Forgery Act 1913 (UK). The appellant had uttered forged documents so as to cause financial companies to advance loans in excess of those allowable under statutory credit restrictions. The appellant claimed his intention was not to cause economic loss but to mislead the finance companies and others into believing that the statutory credit restrictions were being observed. The House of Lords held that intent to defraud was not confined to depriving a person of some economic advantage or inflicting economic loss and that an intent to defraud existed when a false document was brought into existence for no other purpose than of deceiving a person responsible for a public duty into doing something that he would not have done but for the deceit, or not doing something that but for it he would have done.

134 Lord Radcliffe (with whom Lords Tucker and Keith agreed) said in Welham that the phrase intent to defraud is concerned with the effect upon the person who is the object of the fraud not the intended effect upon the person who commits the fraud. The UK Theft Act involved a departure from this position. Lord Radcliffe also said (at 127) that to defraud must involve something more than the mere inducing of a course of action by deceit. He did not identify what that something more was. On my reading of Lord Denning's judgment, he took a broader view of the meaning of "intent to defraud" as being an "'intent to practise a fraud' on someone or other" and that "[i]f anyone may be prejudiced in any way by the fraud, that is enough" (at 133).

135 Conspiracy to defraud is an offence at common law. The leading English authority on that subject is Scott v Metropolitan Police Commissioner [1974] UKHL 4; [1975] AC 819. The House of Lords held that deceit is not an essential element of the offence. In that case the appellant agreed with the employees of cinema owners that in return for payment those employees would, without their employers' consent, temporarily remove cinematograph films for the purpose of enabling the appellant to make and distribute copies of them on a commercial scale. The leading judgment was given by Viscount Dilhorne. He said that to defraud ordinarily means to deprive a person dishonestly of something which is his or of something to which he is or would or might but for the perpetration of the fraud be entitled. He described the public duty extension in Welham as being "a special line of cases". On the facts in Scott, the appellant had inflicted economic loss on the owners of the films albeit not by deceiving them.

136 Lord Diplock left no doubt about his position. He said that where the intended victim of a conspiracy to defraud is a private individual, the purpose of the conspirators must be to cause the victim economic loss by depriving him of some property or right, corporeal or incorporeal, to which he is or would or might become entitled. Where the intended victim of a conspiracy to defraud is a person performing public duties, it is sufficient if the purpose is to cause him to act contrary to his public duty and the intended means of achieving that purpose are dishonest. The purpose need not involve causing economic loss to anyone.

137 Director of Public Prosecutions v Withers [1975] AC 842 was decided at the same time and by the same law Lords as Scott. The respondents ran an inquiry agency which sold credit ratings. They obtained credit information about people from banks and government departments by misrepresenting themselves as being entitled to obtain the information. They were charged with two counts of conspiracy to effect a public mischief. The House of Lords held that the law did not recognise the offence of conspiracy to effect a public mischief. In the course of considering that question Lords Simon and Kilbrandon rejected the proposition that Welham extended the scope of intent to defraud beyond the public duty cases to other non-economic interests. The other members of the court expressed no view on that subject.

138 The final English case to which I refer is Wai Yu-tsang v The Queen [1992] 1 AC 269, a decision of the Privy Council on appeal from the Court of Appeal of Hong Kong. The appellant, a chief accountant at a bank, concealed in the bank's accounts dishonoured cheques payable to the bank. The public accounts were misleading and the true position was recorded in private ledgers. The appellant said he had taken this action to prevent a run on the bank. The appellant was convicted of conspiracy to defraud. The conviction was upheld by the Privy Council. The Privy Council held that it was sufficient if the appellant had the intention of creating a situation which he realised would or might deceive the victim into so acting, or failing to act, that he would suffer economic loss or his economic interests would be imperilled. Further, the Privy Council said that the public duty cases were not in a special category and favoured Lord Denning's approach in Welham.

139 The High Court in Balcombe v De Simoni [1972] HCA 9; (1972) 126 CLR 576 considered the meaning of the expression "intent to defraud" in the former s 409 of the Criminal Code which was the offence of obtaining property or credit by false pretences. The respondent was employed as a door-to-door salesman of books and periodicals. He falsely represented to a householder that he was a student selected in a contest for an overseas trip to represent the youth of Australia on a goodwill tour and thereby induced her to agree to buy a book which she did not want and to pay the respondent the price of the book. The majority (McTiernan, Menzies and Gibbs JJ) held that the respondent made false pretences with the intention of inducing the householder to part with her money, that he had the intention of depriving her of her money by deceit and that he therefore had an intention to defraud. Thus, in the context of the former s 409 the intent had been to deprive a person of money (or other property) rather than to inflict an economic loss, there being no suggestion that the value of the book was less than what she paid.

140 The Full Court in Tan v The Queen [1979] WAR 149 considered the meaning of the phrase "intent to defraud" in s 424 of the Criminal Code which was the former offence of falsifying accounting records with intent to defraud. The trial Judge had directed the jury that to induce a course of action by another person by deceit was to defraud that person. Burt CJ (with whom Brinsden J agreed) held that to defraud is more than to induce a course of conduct by deceit and in the context of s 424 required an intention to inflict economic loss on another person. The Chief Justice said that the expression "intent to defraud" does not have any universal connotation applicable in all statutory contexts, distinguishing Welham and Scott. Wallace J held that s 424 required proof of an accused person's intention to deprive his employer of property or to act to his injury or detriment. Any uncertainty as to whether Wallace J intended to take a different view to that of the Chief Justice is dispelled by his agreement in the next case.

141 The Full Court again considered the expression "intent to defraud" in Re Attorney-General's Reference No 1 of 1981 [1982] WAR 96. The court was considering a reference on a question of law, the question in substance being whether an intent to cause any person to act in any way to his or her prejudice or contrary to what would otherwise be his or her duty was an intent to defraud within the meaning of s 419 of the Criminal Code, which at the time related to company officers fraudulently appropriating property or keeping fraudulent accounts. Counsel for the Attorney-General rested his case almost entirely upon Welham. Burt CJ (with whom Wallace and Smith JJ agreed) answered the question in the negative. Burt CJ held that the words "with intent to defraud" in s 419 meant an intent "to deprive a man by deceit of some economic advantage or inflicting upon him some economic loss". He adhered to his opinion in Tan.

142 The trial Judge in rejecting the no case submission in the present case relied upon the reasons of King CJ in R v Kastratovic (1985) 42 SASR 59. The appellant in that case was charged and convicted of having, with intent to defraud, demanded the sum of $500,000 from a co-director of a company by virtue of a forged guarantee, knowing it was forged. There was evidence that the appellant had a genuine belief that his co-director was indebted to him in the sum of $500,000. The appellant was charged under s 234 of the Criminal Law Consolidation Act which materially provided that any person who, with intent to defraud, demands any chattel, money, security for money or other property under a forged instrument knowing it to be forged shall be guilty of a felony. King CJ said (at 62):

"The essential notion of defrauding is dishonestly depriving some person of money or property, or depriving him of, or prejudicially affecting him in relation to some lawful right, interest, opportunity or advantage which he possesses ... The detriment suffered by the person defrauded is usually economic but is not necessarily so. To defraud must involve something more than the mere inducing of a course of action by dishonest means ... In offences constituted by obtaining money or property with intent to defraud, that something more may be found in the mere parting by the victim of the fraud with money or property which he is entitled to retain and which he would not have parted with but for the use of the dishonest means: Balcombe v De Simoni. In other cases, the defrauding may consist of deceiving a personal responsible for a public duty into doing something that he would not have done but for the deceit, or not doing something that but for it he would have done. In all cases, the element of intent to defraud connotes the intention to produce a consequence which is in some sense detrimental to a lawful right, interest, opportunity or advantage of the person to be defrauded and is an intention distinct from and additional to the intention to use the forbidden means."

143 King CJ went on to hold that a person is not defrauded if he or she does no more than pay a debt presently due and owing because there is no actual (or potential) detriment or prejudice to any lawful right, interest, opportunity or advantage. Consequently, an intent to do no more than deprive the victim of money which the defendant believes to be presently due and owing is not an intent to defraud even if dishonest means are used. That is so unless the person using the dishonest means knows there is a genuine dispute as to his claim in which event, according to King CJ, the intent to deprive a person of the opportunity of having a genuine dispute as to whether the victim owed the money properly adjudicated upon would be an intent to defraud for the purpose of the offence under s 234 of obtaining money or property by dishonest or forbidden means.

144 The next and the most important decision is that of the High Court in Peters v The Queen [1998] HCA 7; (1998) 192 CLR 493. The appellant, a solicitor, was charged with conspiring to defraud the Commonwealth Commissioner of Taxation contrary to s 86 and s 86A of the Crimes Act 1914 (Cth). The prosecution case was that the appellant was party to an agreement to conceal the true amount of a drug trafficker's income by sham mortgage transactions and that he and his fellow conspirators intended thereby to deprive the Commissioner of Taxation of tax payable on that income.

145 The High Court said (at [7]) that the relevant sections of the Crimes Act enacted the substance of the common law offence of conspiracy to defraud. The High Court by a majority (Toohey, Gaudron, McHugh and Gummow JJ) held that dishonesty is not a separate element of the offence of conspiracy to defraud. Toohey and Gaudron JJ in their joint judgment refer to many of the English authorities and state (at [25]):

"[C]ontrary to what was said by Lord Diplock in R v Scott, the offence of conspiracy to defraud is not limited to an agreement involving an intention to cause economic loss, even where the intended victim is a private person. It has always been sufficient that the accused be aware that there is a risk of economic loss. And even where the victim is a private person, there may be cases of fraud which do not involve an intention to put another person's economic interests at risk in any ordinary sense of that term. To take an example given by King CJ in R v Kastratovic, someone who believes that a person is indebted to him and that a defence which that person is genuinely asserting is without merit, nevertheless has an intention to defraud if he intends by dishonest means to deprive that other person of the opportunity of having the matter adjudicated."

146 That Kastratovic example relates to money. If a person genuinely believed that the money which he intended to induce the victim to pay was presently due and payable to him but knew the victim genuinely disputed the claim, he would have an intention to defraud, being an intention to deprive the victim of the opportunity of having his claim to the money properly adjudicated. Toohey and Gaudron JJ do not provide any support for Lord Denning's view in Welham that an intention to prejudice in any way by the fraud is sufficient.

147 McHugh J (with whom Gummow J agreed) also confined the scope of intent to defraud. He said (at [73] - [74]):

"Although most cases of conspiracy to defraud involve an agreement to use dishonest means which has the effect of inflicting economic loss on a third party, the infliction of such loss is not an essential element of the offence. It is sufficient that the conspirators intended to obtain some advantage for themselves by putting another person's property at risk or depriving another person of a lawful opportunity to obtain or protect property. It is also well established that a conspiracy to defraud may be established if the defendants agree to deceive a person into acting or refraining from acting contrary to his or her public duty.

Thus, in most cases, a conspiracy to defraud arises when two or more persons agree to use dishonest means with the intention of obtaining, making use of or prejudicing another person's economic right or interest or inducing another person to act or refrain from acting to his or her economic detriment. Exceptionally, a conspiracy to defraud will also arise when two or more persons agree to use dishonest means to induce a third person to act or refrain from acting in contravention of the third person's public duty. In some cases, it may be sufficient that the object of the agreement to use dishonest means concerns a non-economic right or interest of a person such as private reputation or personal status."

148 McHugh J cites no authority for the last proposition which in any event he confines to private reputation or personal status, neither of which apply to the complainant's position in this case. It can be safely assumed that the High Court was aware of the divergence of views in England yet no member of the majority supported Lord Denning's position in Welham.

149 Peters was applied by this court in Lewis v The Queen (1998) 20 WAR 1. In that case the appellant was convicted of three counts of conspiracy to defraud under the former s 412 of the Criminal Code. The trial judge had not directed the jury that the appellant had to have an intention to inflict economic loss. Following Peters, the Full Court held that an intention to inflict economic loss was not required. The Court said that an intent to defraud will exist where an accused is aware of a risk of economic loss or where there is an intention to deprive another of his or her property or of the opportunity to protect his or her interests.

150 For the sake of completeness it should be made clear that the reference in the cases to economic loss is to direct not consequential economic loss (such as that arising from infliction of personal injury).

151 The meaning of the expression intent to defraud is ordinarily determined by its statutory context. To defraud is to deprive a person of something and that something is often expressly identified in the statute such as, for example, in the former ss 409 - 411 and s 413 of the Criminal Code. In that context, an intent to defraud is an intention to deprive a person of the thing specified in the statute (Balcombe v De Simoni) or a right in relation to that thing (Kastratovic). Even in this statutory context there can be a disconnect between the mental element (intent to defraud) and the physical element (transfer of money). For the purpose of identifying the common law meaning of the expression, the most appropriate cases are those dealing with conspiracy to defraud and other statutory provisions that do not expressly identify the object to which the deprivation must relate (such as former s 424 considered in Tan).

152 Apart from the public duty category of cases, all the reported cases in which an intent to defraud is an element of an offence involve a situation where the victim has been deprived of something and that thing has actual or potential economic value. Based on the authorities, there will be an intent to defraud if the intent is that the victim (1) suffer economic loss; (2) suffer an economic detriment by being deprived of property, money, services or other things that have an economic value (even if the victim had no intention to exploit that value or received full consideration for the same); (3) be at risk of suffering an economic loss or detriment; (4) be deprived of an opportunity to make an economic gain; (5) be deprived of an opportunity to prevent an economic loss or detriment. At its broadest, the common law expression in this context would encompass actual or potential detriment relating to the economic interests of the victim.

153 We were not referred to, nor has our research revealed, any case where the intent relates to interference with the person or the gratuitous receipt of services by the victim. To the contrary, Peters is obiter authority for the proposition that the meaning of intent to defraud at common law does not extend beyond matters relating to the economic interests, public duty and perhaps private reputation and personal status of the victim.

154 As to s 409(1) of the Criminal Code, the prosecution must prove one of the consequences listed in pars (a) to (f) and in addition that the appellant had an intent to defraud and that the consequence was brought about by deceit or fraudulent means. However, in view of the Parliamentary intention that the common law meaning of "intent to defraud" shall apply, it cannot be contended that the width of the matters in pars (a) to (f) alter or enlarge the common law meaning of the expression. To the contrary, the mental element of intent to defraud has the effect of confining the scope of the offence in s 409. In particular, the expression intent to defraud in that section means something more than merely inducing a person to do (or abstain from doing) any act that the person is lawfully entitled to abstain from doing (or is lawfully entitled to do) by deceit or fraudulent means. The defendant must have the intention of inducing an act or omission relating to the victim's economic interests or public duty. If the appellant had intended that the complainant pay for the medical services that would be sufficient even if no payment eventuated (because the victim's act does not have to precisely correspond with the defendant's intention, as in Kastratovic). Further, what would ordinarily be characterised as non-economic interests such as social or sexual relations may in fact affect (and be intended to affect) economic interests where the victim would, but for the deceit or fraudulent means, have demanded payment for the services provided.

155 There are other indications that the offence in s 409 is not intended to include conduct that constitutes an offence against the person or relates to other non-economic interests. First, the Murray Report's focus was on economic interests. The new fraud offence was intended to be an effective weapon to combat "white collar crime". All the examples intended to be covered by the proposed section relate to economic interests of the type described. Second, s 409 and the other offences where intent to defraud is an element are in Pt VI of the Criminal Code the title of which is "Offences relating to property and contracts". The headings of Parts form part of the written law: s 32(1) of the Interpretation Act 1984 (WA). Third, the reference to benefit or detriment "pecuniary or otherwise" in pars (c) and (d) of s 409(1) is not inconsistent with the common law meaning of intent to defraud. There is no pecuniary detriment in the public duty line of cases or where, for example, the price paid is less than or equal to the value of the property transferred to the victim (as in Balcombe). Further, there is no detriment to the victim (pecuniary or otherwise) where there is only a risk of detriment or a lost opportunity of avoiding a potential detriment which leaves scope for the operation of pars (e) and (f) of s 409(1).

156 For these reasons I am satisfied that an intention to induce the complainant to accept free medical services which involved treatment to her person is not an intention to defraud the complainant. Accordingly I would uphold the appeal, set aside the convictions and enter a verdict of acquittal.

157 BUSS JA: The material facts, the grounds of appeal and the legislative history relating to s 409 of the Criminal Code (WA) are set out in the reasons of Roberts-Smith JA.

158 It is notoriously difficult to state exhaustively what is involved in the concept of "intent to defraud". See Peters v The Queen [1998] HCA 7; (1998) 192 CLR 493 per Toohey and Gaudron JJ at 508 [30]; DM Cannane v J Cannane Pty Ltd (in liq) [1998] HCA 26; (1998) 192 CLR 557 per Gaudron J at 571 - 572 [30].

159 In Peters, Toohey and Gaudron JJ said, at 508 [30], in the context of a conspiracy to defraud the Federal Commissioner of Taxation by evading the payment of income tax, that, ordinarily, fraud involves the intentional creation of a situation in which the accused:

(a) deprives another person of money or property;

(b) puts the money or property of another person at risk; or

(c) prejudicially affects another person in relation to "some lawful right, interest, opportunity or advantage" (R v Kastratovic (1985) 42 SASR 59 per King CJ at 62),

knowing that he or she has no right to deprive the other person of that money or property, or to prejudice his or her interests. Also see Macleod v The Queen [2003] HCA 24; (2003) 214 CLR 230 per Gleeson CJ, Gummow and Hayne JJ at 241 - 242 [35].

160 Similarly, in DM Cannane, Gaudron J observed, at 571 - 572 [30], in proceedings relating to whether transfers of property were void under s 121(1) of the Bankruptcy Act 1966 (Cth) or s 565(1) of the Corporations Law as a result of the transfers having been made with an intention to defraud creditors:

"'Fraud' involves the notion of detrimentally affecting or risking the property of others, their rights or interests in property, or an opportunity or advantage which the law accords them with respect to property. Conversely, it is not fraud to detrimentally affect or risk something in or in relation to which others have no right or interest or in respect of which the law accords them no opportunity or advantage. And there is no intent to defraud if the person in question believes that others have no right or interest in or in relation to the property concerned and that the law accords them no opportunity or advantage with respect to that property."

161 An intent to defraud is not confined to an intention to cause economic loss, even where the intended victim is a private individual. See Peters, where Toohey and Gaudron JJ noted, at 507 [25]:

"It has always been sufficient that the accused be aware that there is a risk of economic loss [See Archbold Criminal Pleading, Evidence and Practice (1996), vol 2, par 17-92. See also Welham v Director of Public Prosecutions (1960) 44 Cr App R 124 at 131; R v Théroux (1993) 79 CCC (3d) 449 at 459-461, per McLachlin J; Zlatic v The Queen (1993) 79 CCC (3d) 466 at 476, per McLachlin J]. And even where the victim is a private person, there may be cases of fraud which do not involve an intention to put another person's economic interests at risk in any ordinary sense of that term. To take an example given by King CJ in R v Kastratovic [(1985) 42 SASR 59 at 65], someone who believes that a person is indebted to him and that a defence which that person is genuinely asserting is without merit, nevertheless has an intention to defraud if he intends by dishonest means to deprive that other person of the opportunity of having the matter adjudicated."

In Peters, McHugh J also emphasised, at 525 [73], that an intention to inflict economic loss on another person is not an essential aspect of an intent to defraud:

"It is sufficient [in the context of the offence of conspiracy to defraud] that the conspirators intended to obtain some advantage for themselves by putting another person's property at risk [R v Sinclair [1968] 1 WLR 1246; [1968] 3 All ER 241; [1968] 52 Cr App R 618; R v Allsop (1976) 64 Cr App R 29; Wai Yu-Tsang v The Queen [1992] 1 AC 269] or depriving another person of a lawful opportunity to obtain or protect property [R v Kastratovic (1985) 42 SASR 59 at 65]."

162 It is well-established that defrauding may occur if the accused deceives another person into acting or refraining from acting contrary to his or her public duty: Board of Trade v Owen [1957] AC 602 at 622; R v Terry [1984] AC 374 at 379 - 381; Director of Public Prosecutions v Withers [1975] AC 842 at 860, 862, 873, 875; R v Turner (No 4) [2001] TASSC 51; (2001) 10 Tas R 81 at 89 - 93 [17] - [30]; Wills v Petroulias [2003] NSWCA 286; (2003) 58 NSWLR 598 at 603 [19]. In R v Horsington [1983] 2 NSWLR 72, Glass JA (with whom Street CJ and Lusher J agreed) said, at 75:

"A conspiracy to defraud may also be made out on proof of an agreement by fraudulent means to cause a public official to act contrary to his public duty even though no question of economic loss is involved."

163 In Peters, McHugh J concluded, at 525 [74]:

"Thus, in most cases, a conspiracy to defraud arises when two or more persons agree to use dishonest means with the intention of obtaining, making use of or prejudicing another person's economic right or interest or inducing another person to act or refrain from acting to his or her economic detriment. Exceptionally, a conspiracy to defraud will also arise when two or more persons agree to use dishonest means to induce a third person to act or refrain from acting in contravention of the third person's public duty. In some cases, it may be sufficient that the object of the agreement to use dishonest means concerns a non-economic right or interest of a person such as private reputation or personal status. But in the vast majority of cases, conspiracies to defraud concern rights or interests having an economic value."

His Honour did not elaborate upon the circumstances in which the use of dishonest means with the intention of making use of or prejudicing another person's private reputation or personal status may constitute an intent to defraud, or cite any authority in support of that proposition.

164 Where a person is charged with committing a fraud, the focus is upon the effect of the accused's conduct on the person who is the object of the fraud, rather than upon the advantage (if any) obtained by the accused personally or for a third party. In Welham v Director of Public Prosecutions [1961] AC 103, Lord Radcliffe said, at 123, in relation to defrauding:

"It requires a person as its object: that is, defrauding involves doing something to someone. Although in the nature of things it is almost invariably associated with the obtaining of an advantage for the person who commits the fraud, it is the effect upon the person who is the object of the fraud that ultimately determines its meaning."

In Spies v The Queen [2000] HCA 43; (2000) 201 CLR 603, Gaudron, McHugh, Gummow and Hayne JJ cited with approval, at 633 [87], that passage from Lord Radcliffe's speech. Later, their Honours noted, at 635 [91], that when there is a charge of defrauding, as opposed to a charge of committing an act with intent to defraud, there must be an actual obtaining of property or an actual deprivation of the person defrauded of something which is regarded as belonging to him or her.

165 In Kastratovic, the accused was charged with having demanded money from another person, with intent to defraud, in the amount of $500,000 under a forged guarantee, in the knowledge that the guarantee had been forged. King CJ, whose judgment has been considered and approved subsequently in numerous authorities, including Peters, said, at 62:

"The essential notion of defrauding is dishonestly depriving some person of money or property, or depriving him of, or prejudicially affecting him in relation to, some lawful right, interest, opportunity or advantage which he possesses. As Lord Radcliffe pointed out in Welham v. Director of Public Prosecutions [[1961] AC 103, at p 123], 'although in the nature of things it is almost invariably associated with the obtaining of an advantage for the person who commits the fraud, it is the effect upon the person who is the object of the fraud that ultimately determines its meaning'. The detriment suffered by the person defrauded is usually economic but is not necessarily so. To defraud must involve something more than the mere inducing of a course of action by dishonest means: Welham v. Director of Public Prosecutions [[1961] AC 103], per Lord Radcliffe at p. 127. In offences constituted by obtaining money or property with intent to defraud, that something more may be found in the mere parting by the victim of the fraud with money or property which he is entitled to retain and which he would not have parted with but for the use of the dishonest means: Balcombe v. De Simoni [(1972) [1972] HCA 9; 126 CLR 576]. In other cases, the defrauding may consist of deceiving a person responsible for a public duty into doing something that he would not have done but for the deceit, or not doing something that but for it he would have done_. In all cases, the element of intent to defraud connotes the intention to produce a consequence which is in some sense detrimental to a lawful right, interest, opportunity or advantage of the person to be defrauded, and is an intention distinct from and additional to the intention to use the forbidden means_." (My emphasis)

166 The concept of "intent to defraud" does not have a universal connotation which applies in each and every statutory context in which it appears. See Balcombe v De Simoni [1972] HCA 9; (1972) 126 CLR 576 per Barwick CJ at 582 - 583; DM Cannane per Gummow J at 578 [54]. In other words, the legislative framework in which the concept appears may affect its content and ambit.

167 At the relevant time, s 409 of the Criminal Code provided:

"(1) Any person who, with intent to defraud, by deceit or any fraudulent means -

(a) obtains property from any person;

(b) induces any person to deliver property to another person;

(c) gains a benefit, pecuniary or otherwise, for any person;

(d) causes a detriment, pecuniary or otherwise, to any person;

(e) induces any person to do any act that the person is lawfully entitled to abstain from doing; or

(f) induces any person to abstain from doing any act that the person is lawfully entitled to do,

(g) if the person deceived is of or over the age of 60 years, to imprisonment for 10 years; or

(h) in any other case, to imprisonment for 7 years.

Summary conviction penalty (subject to subsection (2)):

(a) in a case to which paragraph (g) applies: imprisonment for 3 years or a fine of $12 000; or

(b) in a case to which paragraph (h) applies: imprisonment for 2 years or a fine of $8 000.

(a) property obtained or delivered; or

(b) a benefit gained or a detriment caused;

is more than $10 000 the charge is not to be dealt with summarily.

(3) It is immaterial that the accused person intended to give value for the property obtained or delivered, or the benefit gained, or the detriment caused."

Later amendments are not material for present purposes.

168 Section 409(1) is not relevantly different from the provision recommended by Mr M J Murray (as his Honour then was), as set out in Appendix A to his report entitled, "The Criminal Code. A General Review", which was published in 1983.

169 Mr Murray also recommended, relevantly, that the Criminal Code be amended to include a definition of "intent to defraud". Mr Murray's recommended definition referred, relevantly, to the "detriment or prejudice, pecuniary or otherwise" of the victim, and not to any "benefit or advantage, pecuniary or otherwise" obtained by the accused. The substance of his definition was included in the Criminal Law Amendment Bill 1990 (WA). The definition in the Bill was as follows:

"The term 'intent to defraud' means an intent to -

(a) act, or induce another person to act, in a way that may cause a detriment, pecuniary or otherwise, to any person; or

(b) refrain from acting, or induce another person to refrain from acting, in a way that might prevent a detriment, pecuniary or otherwise, from being caused to any person,

and where the term 'intent to defraud' is used with respect to an offence and the elements of the offence include the obtaining or delivery of property, or the gaining of a benefit, or the causing of a detriment, it is immaterial that an accused person intended to give value for property obtained or delivered, or a benefit gained, or a detriment caused;"

That definition was, however, deleted in Committee, and the Criminal Law Amendment Act 1990 (WA) therefore did not define "intent to defraud". The evident intention of Parliament was that "intent to defraud" in s 409(1) should bear its common law meaning.

170 I agree with McLure JA that pars (a) to (f) of s 409(1) do not alter or enlarge the meaning of "intent to defraud" at common law. Also, I agree with her Honour that the concept of "intent to defraud" in s 409(1) confines the scope of the offence which the subsection creates. In other words, pars (a) to (f) of s 409(1) must be construed and applied in the context of the content and ambit of the common law meaning of "intent to defraud".

171 Paragraphs (a) to (f) of s 409(1) do not specify circumstances which are separate and distinct from each other. There is substantial overlap between some of them. This was recognised by Mr Murray at 269 - 270 of his report:

" ... paras (a) and (b) ... effectually reproduce the false pretence offence [under the then existing s 409(1)]. It is strictly unnecessary, I think, to retain these provisions at all having regard to the ambit of the recommended paras (c) and (d), but retention is nonetheless recommended as an alternative means of expressing the offence for the sake of maintaining continuity with the previous law ..."

(b) As to pars (e) and (f), which were combined in par (e) of Mr Murray's recommended provision:

"In terms of the practical operation of the section in a particular factual situation [paras (e) and (f)] may indeed not be necessary at all, but [they] would be apt to cover fact situations which particularly would not fall under either par (c) or (d). Let us take, for example, an individual who obtains a ride in a private motor vehicle by a false statement that he needs to get quickly to a particular destination to visit a particularly sick relative. If there was any argument as to whether or not that represented the obtaining of a benefit, then it is clear that there could be no argument that the deceit of the accused induced the driver of the private motor vehicle to do an act which he was lawfully entitled to abstain from doing. That is, to take the accused as a passenger from point A to point B.

I also had in mind the need to cover the situation referred to in Welham's Case, where the fraud induces an activity which creates the risk rather than the actuality of injury to the victim and which in the event fails to produce a benefit to the accused. An example of that type of conduct would be the execution of a valuable security which alone might not produce a benefit or cause a detriment or result in the obtaining of any property, or induce another to deliver any property. ... Certainly there will be some overlap between the various paragraphs comprising Section 409(1) as it is recommended to be enacted. But it is much more desirable clearly to have some overlap than to have gaps in the coverage of the Section."

I note, in relation to Mr Murray's example concerning an individual who, by deceit, obtains a ride in a private motor vehicle, that his recommended definition of "intent to defraud" would have required the prosecution to prove, relevantly, that the accused intended to induce the driver to act in a way which may be to his or her "detriment or prejudice, pecuniary or otherwise".

172 A court may, at common law and apart from any reliance on such provisions as s 19 of the Interpretation Act 1984 (WA), have regard to reports of law reform bodies to ascertain Parliament's intention in enacting a statutory provision. See CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; Newcastle City Council v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85 at 112 - 113.

173 The learned trial Judge, in rejecting the appellant's "no case" submission and in directing the jury, appears to have relied upon certain observations of King CJ in Kastratovic, at 62, to the effect that:

(a) the essential notion of defrauding includes dishonestly and prejudicially affecting the victim in relation to some lawful right, interest, opportunity or advantage which he or she possesses; and

(b) the detriment suffered by the person defrauded is usually economic but is not necessarily so.

Those observations contemplate that a person may be defrauded even though the victim's economic interests have not been put at risk, in the ordinary sense of that term. See Peters, per Toohey and Gaudron JJ, at 507 [25]. In the following examples, there will be an intent to defraud even though the victim's economic interests are not put at risk, in the ordinary sense of that term:

(a) The accused believes the victim owes him or her money and that a defence genuinely asserted by the victim is without merit. The accused, by deceit or fraudulent means, intentionally deprives the victim of the lawful opportunity of having the dispute adjudicated. See Kastratovic per King CJ at 65; Peters per Toohey and Gaudron JJ at 507 [25].

(b) The accused intentionally induces the victim, by deceit or fraudulent means, to part with money or property which the victim is entitled lawfully to retain, and which he or she would not have parted with but for the accused's deceit or fraudulent means. The accused gave value for the victim's money or property. See Kastratovic at 62; Balcombe; s 409(3).

(c) The accused intentionally induces a person, by deceit or fraudulent means, into acting or refraining from acting, and the person's action or inaction contravenes his or her public duty.

174 In my opinion, an accused will have an "intent to defraud", within s 409(1), if he or she intends:

(a) to cause or induce loss, detriment or prejudice (including the risk of loss, detriment or prejudice) in relation to any lawful right, interest, opportunity or advantage (including any potential lawful right, interest, opportunity or advantage) of the victim, which has some actual or potential value; or

(b) to cause or induce a person to contravene his or her public duty by doing something that he or she would otherwise not have done or by not doing something that he or she would otherwise have done; or

(c) (perhaps) to cause or induce loss, detriment or prejudice (including the risk of loss, detriment or prejudice) to a non-economic right or interest of the victim such as private reputation or personal status.

It is unnecessary, with great respect, to make a determination in relation to the category in sub-par (c) above, which is based on McHugh J's observations in Peters at 525 [74]. The categories in sub-pars (a), (b) and (c) above are not intended to be exhaustive.

175 The requirement, in s 409(1), that an accused engage in deceit or employ fraudulent means is separate and distinct from, and additional to, the requirement of an "intent to defraud".

176 The word "by", in s 409(1), requires that an accused's deceit or fraudulent means bring about a circumstance enumerated in pars (a) to (f) of the subsection. In other words, a circumstance enumerated in pars (a) to (f) must be a result of the relevant deceit or fraudulent means. The terms "deceit" and "fraudulent means" in s 409(1) were considered and explained by this Court in Graham-Helwig v Western Australia [2005] WASCA 127; (2005) 30 WAR 221. It is unnecessary to expound upon them in this appeal. It is sufficient to note that each of them connotes dishonesty. See Graham-Helwig per Wheeler JA at 225 - 226 [13] - [14].

177 It is not essential that an accused's intent (in the context of intent to defraud) should correspond with the circumstance in pars (a) to (f) of s 409(1) which is brought about by, or is a result of, the accused's deceit or fraudulent means.

178 I agree with McLure JA that there will not be an intent to defraud, within s 409(1), where, as in the present case, an accused intentionally induces another person to accept the gratuitous supply of bogus medical services as a result of the accused having intentionally misrepresented her qualifications. That circumstance (namely, intentionally inducing acceptance of the gratuitous supply of bogus medical services) does not fall within any of the categories in sub-pars (a), (b) and (c) of [174] above, and is not otherwise within the concept of "intent to defraud".

179 I would allow the appeal, set aside the convictions, and enter verdicts of acquittal.