Court of Appeal (Vic)|2013-07-25|Before: Michael J, Buchanan JA, Ashley JA, Redlich JA

Magnus v The Queen [2013] VSCA 163 (25 July 2013)

[2013] VSCA 163 1st Revision, 25 July 2013,

CRIMINAL LAW - Conviction - Obtaining financial advantage by deception - Many charges - Multiple particulars to each charge alleging misrepresentations - Discussion of circumstances in which unanimity direction as to factual foundation of charge is required - Unanimity required - Whether judge failed to direct jury that, in respect of each charge, it must be unanimous that at least one misrepresentation had been materially operative - Whether, as a result of any error or irregularity, there had been a substantial miscarriage of justice - Crimes Act 1958 (Vic), ss 82, 81(4) - Appeal dismissed - Observations on Crown inviting bench of three judges not to follow previous decisions of this Court.

**1 On 25 August 2011, the appellant, Timothy Francis Magnus, was found guilty after a lengthy trial in the Trial Division of 53 charges of obtaining a financial advantage by deception contrary to s 82 of the Crimes Act 1958 (Vic). On 3 November 2011, the judge imposed a total effective sentence of three years and six months' imprisonment, with a non-parole period of two years and three months. A declaration was made with respect to pre-sentence detention.[1] Magnus subsequently pleaded guilty to a further 78 charges of obtaining a financial advantage by deception and was sentenced on 13 February 2012.[2] The sentencing judge, who had presided at the earlier trial, found that the further offences, together with the 53 charges on which the appellant had already been convicted, represented one dishonest course of conduct embarked upon by the appellant between December 2005 and April 2007. The judge imposed a total effective sentence of six years six months' imprisonment with a new non-parole period of two years and nine months' imprisonment. The new non-parole period took into account the time the appellant had already served in custody.

2 The appellant now appeals by leave against his conviction on the 53 charges on which he was found guilty at trial.**

The learned trial judge erred in failing to direct the jury that as to each count they had to be unanimous as to the particular statement that was said to be materially misleading.

**4 The sentencing judge described the circumstances of the offending this way:[3]

In late 2005, you were working for an organisation known as Racing Trades Pty Ltd. You were offering a betting product on their behalf, and first contacted Ms Irene Brooks in relation to that product. Ms Brooks invested $5,000 in this product and after a 'roller coaster' ride you assisted her in recouping most of her investment.

In mid-December 2005, you again contacted Ms Brooks and advised her you were proposing to set up a private betting fund and that you were looking for start up participants. You explained the scheme and the concept of 'lay betting' to her as follows. Betfair UK is a betting exchange where punters who wished to back a horse to win were introduced to punters who wished to take the other side to that transaction i.e. back the horse to lose. Betfair UK would take a percentage of the stake for matching the two sides of the wager. The punter who was backing the horse to lose was in racing parlance 'laying' the horse, thus the expression 'lay betting'.

You explained to Ms Brooks that the betting fund you were proposing was to be a lay betting fund only. You would place the fund's monies on these type of bets with Betfair UK. You explained that when funds were transferred to you, you would immediately transfer them on to the account of Mr Jeff Walters, bookmaker, and that it was Mr Walters' Betfair account that would be used by the betting syndicate. A by-product of this, you explained, was that the funds were secure from defalcation and guaranteed by the Bookmakers Guarantee Fund. You explained that your knowledge of the horse racing industry would enable you to determine which horses the fund should lay. A further attraction you said was that because the scheme involved picking losers instead of winners, the risks normally associated with punting on thoroughbreds were substantially diminished.

Your sales pitch to Ms Brooks was convincing enough for her to become your first investor and subsequently an enthusiastic proponent of what became the Golden Egg Investment Scheme.

Ms Brooks initially invested $5,000 with you. After six weeks the purported profits from this investment were spectacular and she assisted you in aggressively marketing the scheme. By early March 2006, you and Ms Brooks organised a presentation to interested parties, explaining the scheme and Ms Brooks' results to date from lay betting.

Your representations to that meeting were similar to the representations you initially made to Ms Brooks and included:

(b) that because the scheme revolves around picking losers rather than winners the chances of success were greater;

(d) that, as in any betting scheme, this was high risk investment and that there was a risk that an investor's entire stake could be lost.

Ms Brooks extrapolated prospective per annum returns based on a conservative view of her results to that date. This was presented to the meeting, together with a prospectus-type document which evolved over time.

5 His Honour paused in his narrative to make the following observations:[4]

(a) it is entirely unclear to me whether the profits that you represented to Ms Brooks were real or imaginary. Similarly, I have no way of knowing whether, if you did bet with her initial $5,000, you placed lay bets exclusively or at all.

(b) it is clear, however, that these initial funds were not transferred to Jeff Walters' bookmakers account or invested on his Betfair account.

The presentation of 8 March 2006 was a success and over time investors joined what became the Golden Egg Investment Syndicate. You would telephone Irene Brooks, who had become the fund administrator, with what you asserted were the weekly trading results. These results would be converted into spreadsheet form and investors would receive a copy of their recent trading results and of their overall balances.

In fact you were not investing the monies lodged with you in any coherent or authorised way. Specifically, you did not lodge the funds received with Jeff Walters and they were not then used for the purposes of lay betting with Mr Walters' Betfair UK account.

I accept that you must have used a significant proportion of the investors' funds to bet with Mr Walters on an orthodox win/place basis and that otherwise the funds were mixed with your general funds. When your betting with Mr Walters involved more exposure than he was prepared to accept, he placed your bets with other bookmakers in the Brisbane betting ring. All bets placed, either with Mr Walters or through him, were orthodox win/place bets and thus outside the scope of your representations to investors.

As the fund became apparently more established, from time to time investors would seek to redeem some or all of their investments or 'winnings'. Initially redemption requests were met, it seems, from your general funds, which of course were supplemented by other investors' funds.

Investors, encouraged by the false profit reports, were more inclined to leave their purported profits in the scheme and you were able to meet redemption requests until relatively late in 2006. In order to paint a picture of punting prosperity you either generated, or caused to be generated, false bookmakers' statements. These statements, which purported to be of your account balance with Mr Walters, were supplied either to Ms Brooks or her administrative successors, Mr Draudins and Mr Scott, on approximately a monthly basis. The asserted balance was always fictitious and progressively inflated. By early 2007, the bookmakers' statement claimed a credit balance of many millions of dollars, when in fact the true balance of your account with Mr Walters was zero.

Demands for redemption became more frequent into the last part of 2006 and early 2007 and you were unable to meet them. You generated a variety of excuses, mostly to do with Mr Walters' incapacity to pay you and hence the fund. You attended an investors meeting in March 2007 where you publicly set out this false explanation. Mr Scott, an investor and administrator of the fund, flew to Queensland to meet you and a man you represented to be Mr Walters. That man handed over a signed letter acknowledging a debt by Mr Walters to you of over $10 million dollars.

In fact, whoever this man was, he was not Mr Walters and the debt acknowledgement was as fraudulent as its messenger. You abandoned these pretences by mid 2007 and adopted an extremely low profile for the next couple of years.

Ultimately, the police were contacted, and in September 2009 you were located (with some difficulty), charged and extradited from Queensland and lodged in custody. You remained in custody until July 2010 when bail was granted. The total sum of monies defrauded from investors in relation to the 53 charges was $545,000. The total sum redeemed by investors prior to the collapse of the scheme was $167,000. This left a balance of $378,000 unaccounted for.

7 There were 11 complainants in all. They became involved in the scheme at different times. The number of transactions in which each participant was involved varied, as did the first and last dates of transfer of funds. Each charge corresponded with a transfer of funds. Appendix 'A' to these reasons sets out abbreviations for representations alleged in one or more of the charges. Appendix 'B' sets out, chronologically, the number of the charge, the name of the complainant, the date of the transfer, the amount transferred, and the representations specified by the particular charge. Appendix 'C' sets out the same information on a complainant by complainant basis. Appendix 'D' summarises the various representations, and the extent to which each of them was relied upon in the charges laid. It shows, inter alia, that only two representations were alleged in all 53 charges. We will say more about the structure of the charges later in these reasons.**

8 Section 82(1) of the Crimes Act provides that -

A person who by any deception dishonestly obtains for himself or another any financial advantage is guilty of an indictable offence and liable to level 5 imprisonment (10 years maximum).

9 'Deception' has the meaning given the word by s 81(4), which reads as follows:

For the purposes of this section, deception -

(a) means any deception (whether deliberate or reckless) by words or conduct as to fact or as to law, including a deception as to the present intentions of the person using the deception or any other person; and

(b) includes an act or thing done or omitted to be done with the intention of causing -

(i) a computer system; or

(ii) a machine that is designed to operate by means of payment or identification -

to make a response that the person doing or omitting to do the act or thing is not authorised to cause the computer system or machine to make.

**10 Until very shortly before the hearing of the appeal, two issues were in debate. First, had the judge given the jury a direction that it must be unanimous, with respect to each count, that a particular representation, or representations, had been materially misleading - that is, operative in the victim's decision to make a transfer of funds. Second, if the answer to that question was 'no', was it nonetheless quite clear that, with respect to each charge, the jury must have been unanimous that a particular representation or representations (not necessarily the same in the case of each charge) had been operative.

11 Then, very shortly before the appeal was heard, the Crown sought to raise an issue antecedent to consideration of the issues previously joined. The Court permitted the Crown to do so, despite the fact that it undermined a premise evident in the single ground of appeal. Framed as a question, the issue was this: was it necessary for the jury to be unanimous, with respect to a charge, that at least one particular representation had been operative? Senior Counsel for the Crown submitted that the answer to the question was 'no'. Counsel for the appellant contended to the contrary.**

**12 We should first address this late-raised issue. If it were determined favourably to the Crown, it would dispose of the appeal.

13 In order for the Crown to make good the contention that it was not necessary for the jury to be unanimous as to at least one particular operative representation, it appeared probable, even at the point when counsel sought permission to argue the issue, that the Court would have to decline to follow its own previous decisions. All too frequently, submissions are now made, particularly by the Crown, that a bench of three judges of this Court should not follow previous authority of this Court. In HM v The Queen,[6] Redlich JA and Kaye AJA recently said:**

We should say something further as to the course which the Crown has followed. It is highly undesirable that the Crown or any other party invite a bench of three judges of this Court not to follow recent decisions of this Court where the issue has previously been the subject of consideration, and where it could not reasonably be said that the decisions were so plainly wrong that they should be overruled. Even if the proposed argument had some degree of merit, it was inevitable that it would be rejected by a Court comprised of only three judges. Assuming that these earlier decisions were not an appropriate vehicle for appeal to the High Court, and that the Crown wished to re-agitate the issue, it should, as part of its written case, have advised the court of its intention to advance such a submission in the present appeal.[7]

**14 Where a Bench of five judges has not been constituted, the Crown should not expect this Court to entertain submissions which invite departure from a previous line of authority unless there are exceptional circumstances which dictate - that the Court should not be bound by such authority. Not without some hesitation, in this instance we permitted the Crown to pursue the new argument. We did so largely because counsel submitted that there was nothing more than obiter dicta against the Crown's contention, and more recent authority of the Court which supported it.

15 For the reasons which follow, those submissions cannot be sustained. We are in no doubt that both principle and authority, of both this and other intermediate appellate courts, require unanimity by the jury as to a representation constituting the deception.**

**16 Counsel for the Crown submitted that the determinant whether unanimity is required is whether what is to be decided is proof of an element, or 'essential ingredient', of an offence or, alternatively, proof of an evidentiary matter relevant to proof of an element. The former requires unanimity; the latter does not. In this case, the element was 'any deception'. There must be unanimity that a financial advantage was improperly obtained by any deception. But jurors might find the deception proved by different evidentiary pathways. So, if a charge specified a number of representations, jurors could unanimously find the deception proved in reliance upon different representations.

17 Counsel contended that in homicide cases the distinction just identified is well-established. A unanimous verdict is not required where 'alternate bases of criminal liability do not involve materially different issues or consequences'.

18 Counsel further submitted that the distinction has been extended beyond homicide cases. He cited R v Leivers & Ballinger,[8] Mouritz v The State of Western Australia[9] and El-Waly v The Queen.[10] Leivers involved a murder, but counsel relied upon a discussion of principle which was more general in nature. Mouritz involved convictions for assault and infliction of grievous bodily harm. ElWaly, so far as presently relevant, involved a conviction for rape.

19 Counsel boldly submitted that pertinent authorities had already resolved the issue raised for determination by the provision in this case in favour of his argument. He said that it was now for the Court to declare it to be so.

20 Counsel did not accept that the decisions of this Court in Walsh v R[11], The Queen v Holmes[12] and The Queen v Secombe & Butkovic,[13] or of the English Court of Appeal in R v Kevin Brown[14] stood in the way of his submission.

21 He stated that he did not seek to challenge Walsh, observing that the pertinent charge there was one of conspiracy.

22 A passage in the judgment of Eames JA in Holmes,[15] evidently adverse to his argument, was, counsel submitted, inconsistent with another line of cases in this Court.

23 In Secombe & Butkovic, he submitted, there had been a concession that the jury had to be unanimous as to which of two possible aspects of aggravation established the offence of aggravated burglary. Implicitly, he contended that the concession had been wrong. Buchanan and Ashley JJA said in that case that it was 'common ground' that unanimity was required as to the circumstance of aggravation. Ironically, counsel for the Crown in that appeal was counsel for the Crown in the present matter.

24 As to Brown, counsel submitted that the language of the offence was 'any person who by any statement'. Statements were part of the definition of the crime. It followed that one or more statements relied upon had to be unanimously agreed in by the jury as having been established.

25 There was mention in argument of the earlier English case of R v Price,[16] referred to in Walsh. The charge was one of dishonestly obtaining property by deception. Counsel said that the Court of Criminal Appeal appeared to have included the making of a representation as an essential ingredient of the offence. Implicitly, he submitted that the case had been wrongly decided.

26 The correctness or otherwise of R v More,[17] another case of obtaining property by deception, also arose in the course of counsel's submissions. It was implicit in what the English Court of Appeal decided in that case that unanimity was required respecting an operative representation; but there a number representations, 'though grammatically disparate, in fact stood or fell together.'**

27 Counsel for the appellant submitted that this case fell into the second category described in Walsh - of which, more later. El-Waly had approved Walsh. It was a decision which depended upon the statutory definition of rape. The present case was different. There must be a connection between any identified representation and the causative requirement of s 82(1). Leivers had preceded Walsh, and involved a different situation.

**28 In our opinion, the Crown's submissions should be rejected. That is so for a number of reasons. We begin with the state of the authorities, because it was there that argument was joined.

29 In our opinion, three propositions may be stated. First, there is authority of this Court which specifically addresses the offence now under consideration, and which holds that the jury must be unanimous in finding that a particular representation was operative. Second, English authority supports such a conclusion. Third, the touchstone for determining whether or not unanimity is required in any particular situation was stated in a passage in Walsh which has commanded approval in this and other States. Considering this offence by reference to that touchstone confirms that unanimity of the kind under consideration was required.

30 The first reason requires consideration of Walsh and Holmes.

31 In Walsh, Phillips and Buchanan JJA conducted an extensive review of Australian and English cases which had raised the question of unanimity in different contexts - sometimes alleged duplicity, sometimes uncertainty of verdict, sometimes, specifically, the need for unanimity with respect to a particular finding. Their Honours referred, inter alia, to the decision of the Full Court in R v Kuff.[18] Kuff concerned the offence of obtaining property by false pretences. The Court there set out the ample authority for the view that where numerous pretences were laid out in a count it was sufficient to sustain a conviction if any one of the pretences was proved and reliance upon that representation was proved if it was capable of amounting to an inducing cause.[19]

32 In Walsh, Phillips and Buchanan JJA summarised the position this way:[20]**

To sum up the foregoing, it seems that the cases give rise to two situations at least (and if there be tension between them, this is not the case to resolve it, for it is only the second with which we are now concerned). The first is that exemplified by the cases concerning murder and manslaughter, where, when alternative legal bases of guilt are proposed by the Crown but depend substantially upon the same facts, there is no need for a direction on 'unanimity' about one or other or more of those bases, at least if they do not 'involve materially different issues or consequences'. (How far in cases of murder or manslaughter this qualification extends - having regard especially to Clarke and Johnstone which has been long accepted in Victoria and to the similar practice in New South Wales - is of no present relevance). The second situation is where one offence is charged, such as obtaining property by deception, but a number of discrete acts is relied upon as proof and any one of them would entitle the jury to convict. If those discrete acts go to the proof of an essential ingredient of the crime charged, then the jury cannot convict unless they are agreed upon that act which, in their opinion, does constitute that essential ingredient. In this type of case, much will depend 'upon the precise nature of the charge, the nature of the prosecution's case and the defence and what are the live issues at the conclusion of the evidence'. When the charge is obtaining property by deception by means of misrepresentation, the making of the misrepresentation has been regarded as an essential ingredient of the crime charged. It is otherwise, however, where the crime is conspiracy to defraud and the means agreed upon by the conspirators to achieve that end is the making dishonestly of false representations. The agreement to make any particular representation is not regarded as an essential element of the crime, but merely a path to arriving at the objective of the conspirators, namely, obtaining an advantage by fraud.

**33 That statement of principle has been repeatedly endorsed and applied. See, for example, Fermanis v The State of Western Australia,[21] R v Klamo,[22] Lanh Ngoc Bui v The Queen,[23] El-Waly v The Queen,[24] R v Cox & Ors[25] and Chapman v R.[26]

34 Counsel for the Crown submitted that Walsh involved a charge of conspiracy to defraud by making multiple misrepresentations to induce an 'investment'. It was implicit in the submission that the reference to obtaining property by deception in the passage cited at [32] above was obiter dicta. It seems to us, however, that their Honours drew a distinction between what must be unanimously proved on a charge of obtaining property by deception, and on a charge of conspiracy to defraud which was of key importance to resolution of that appeal.

35 Holmes stands squarely against the submission advanced for the Crown. That was relevantly a case of attempt to obtain a financial advantage by deception. Eames JA said this:[27]**

Ground 4(b) asserted that the judge failed to direct the jury that they had to be unanimous as to one at least of the three false pretences for the jury to be satisfied unanimously that the offence had been proved. In other words, it was not sufficient that of the twelve some jurors were satisfied as to paragraph (a), some as to (b) and some as to (c). It was necessary that all twelve were satisfied as to one, at least, of the particulars. That correctly states what is required for a conviction. In Kuff, the Court held that 'where two or more pretences are laid in one count the prosecution is not obliged to prove all the pretences so laid, but it is sufficient to sustain a conviction if any one of the pretences is proved and reliance upon that representation is proved, at any rate if it is capable of amounting to an inducing cause in itself ...'.

It was submitted that her Honour did not direct the jury in accordance with that requirement. Her Honour's direction, which was not simply lifted from the charge book, was relevantly as follows:

In respect of count 3, the false representations in the statutory declaration dated 19 December 2001 there are three, (a), (b) and (c). If you are satisfied beyond reasonable doubt that any one of these representations is false, and you have to be satisfied, all twelve of you, unanimously on that, then the other elements are made out. In relation to count 3, you do not have to be satisfied as to (a), (b), and (c) but you have to be satisfied beyond reasonable doubt as to one of these factors.

It is not possible, of course, to capture the emphasis with which her Honour would have highlighted some words in this direction, but even without knowing that emphasis it is possible to say that these instructions would have been understood by the jury to require unanimity on one at least of the three paragraphs. I do not consider that the jury would have been left in doubt as to that. In any event, in the context of this case there was no reasonable possibility that if any member of the jury was satisfied as to one of the three paragraphs he or she would not be satisfied as to the other two as well. Given the way the case was conducted, all three of the paragraphs would be bound to be proven to the satisfaction of the entire jury or else no member of the jury would have been satisfied as to any one of them.

**36 The English cases of present relevance are, particularly, R v Brown,[28] R v More[29] and R v Price.[30]

37 None of the English cases was free of distractions; and the statutory language in question was not identical with that s 82(1). But all of them were cited in Walsh, and support the conclusion there expressed in the passage cited at [32] above. We add that the distinguishing feature in Brown identified by counsel fo[31]the Crown,31 whilst true as far as it goes, does not provide the assistance which counsel sought to draw from it.

38 This last observation leads into application of what we have called the Walsh touchstone. The starting point is the language of s 82(1). We have already set it out. As we have said, counsel for the Crown agued that the relevant element was deception. Proof of deception was simply a matter of evidence. But that argument, in our view, does not pay sufficient attention to s 81(4) of the Crimes Act, which we have also earlier set out. We consider that, in a case such as the present, s 82(1) should be understood with respect to each charge to read -**

A person who by any words or conduct (whether deliberate or reckless) dishonestly obtains for himself any financial advantage is guilty....

**Then would follow the representations relied upon in respect of the particular charge.

39 Thus understood, the provision would be akin to the provision considered in Brown. That case concerned counts of fraudulently inducing the investment of money. Each count contained particulars of a number of different statements relied upon by the prosecution as constituting the inducement. The trial judge directed the jury that it was sufficient that all were agreed that there was a dishonest inducement. The jury was not directed that unanimity as to the statement constituting the inducement was necessary. The Court of Appeal held that this constituted a misdirection. It allowed the appeal, stating that -**

Each ingredient of the offence must be proved to the satisfaction of each and every member of the jury (subject to the majority direction).
However, where a number of matters are specified in the charge as together constituting one ingredient in the offence, and any one of them is capable of doing so, then it is enough to establish the ingredient that any one of them is proved; but (because of the first principle above) any such matter must be proved to the satisfaction of the whole jury. The jury should be directed accordingly, and it should be made clear to them as well that they should all be satisfied that the statement upon which they are agreed was an inducement as alleged.[32]

40 Satisfaction that particular conduct was operative in the financial advantage being obtained, in the present case, would in substance be satisfaction of an element or essential ingredient of the crime, and so must be unanimous. To that may be added, even if not strictly necessary, the observations of Steytler P in Fermanis that:[33]

... it seems to me that the essential elements of an offence are not necessarily determined merely on the wording of the statute creating the offence. That is to say, the fact that the statute requires, for example, that there be deceit or fraudulent means rather than any particular form of deceit or fraudulent means does not mean that it is not essential for the jury to agree upon the particular form of deceit or fraudulent means relied upon by the prosecutor. As Elias CJ put it in Mead (at [15]), in the extract quoted above, 'The statutory elements will need to be anchored to the facts relied upon by the prosecution as the basis of liability'.

**41 Counsel for the Crown treated El-Waly as if it necessarily provided the answer to the present case. Assuming, as we must do, that the case was correctly decided, the present matter is not on all fours. There, the accused performed a single penetrative act. The question was as to its precise character. But, according to this Court, whether it was of character A or B mattered not. In the present case, there were multiple acts - that is, representations - which in each instance, if proved, led nowhere unless a causal link was established between that particular act and the obtaining by the appellant of a financial advantage. Moreover, the Crown could prove its case despite the jury not being satisfied that any more than one of the acts had either been done, or, if done, had been operative.

42 What we have said is enough to dispose of what we have called the late-raised issue adversely to the Crown. But on general principles the Crown's argument should equally be rejected.

43 The protective common law principle of jury unanimity reflects the fundamental thesis of the criminal law, that a person accused of a crime should be given the benefit of any reasonable doubt.[34] The principle rests upon the elementary proposition that the accused is only to be convicted upon the basis of the particular act, matter or thing alleged as the foundation of the charge.[35] It remains of critical importance that the jury's collective mind is focused on the precise elements of the accusations brought against the accused. For this reason the High Court and other Australian courts have insisted that the rule requiring unanimity in the jury's verdict must reflect the satisfaction of the whole jury that the prosecution has established the essential ingredients of each offence charged.[36] This rule is so fundamental as to be generally assumed without the need for authority.[37] What is essential is that, to return a verdict of guilty, the members of the jury must be unanimous in their conclusion that each of the material ingredients of the offences charged, as alleged in the indictment and as proved in the way the case has been conducted, has been proved beyond reasonable doubt.[38] In this way the law addresses 'the requirement for certainty as to the offence charged, which requirement also underlies the rule against duplicitous counts.'[39]

44 The standard jury direction about the need for unanimity refers to the need for the jury to be unanimous as to the 'elements' of the offence, the essential elements being identified during the course of the charge. Where there are alternate factual bases for liability, intermediate courts of appeal have consistently required the need for a unanimity direction.[40]

45 The need for it to be clear that the jury has focused its collective attention upon the precise ingredients of the offence charged was emphasised by the High Court in KBT v The Queen.[41] There, the accused was charged with the offence of maintaining an unlawful relationship of a sexual nature with a child under the age of 16 years. It was a precondition for conviction of the offence that, on three or more occasions, the accused had done an act defined to constitute an 'offence of a sexual nature' in relation to the child. The trial judge did not instruct the jury that they were required to be of the unanimous opinion that the accused had done the same three acts, each constituting an offence of a sexual nature, on the same three occasions. Brennan CJ, Toohey, Gaudron and Gummow JJ in their joint reasons said that it was clear from the terms of the relevant section that the actus reus of the offence was the doing of an act which constituted an offence of a sexual nature in relation to the child on three or more occasions. A person could not be convicted unless the jury were agreed as to the commission of the same three or more acts. In the absence of the necessary direction it was 'impossible to say that the jurors must have been agreed as to the appellant having committed the same three acts.'[42]

46 What elements in the particular case are essential to criminal liability and thus require unanimity is, as Elias CJ observed in R v Mead[43] 'a practical question, not a technical one'. The essential points upon which the jury must agree extend beyond the statutory elements. What must be agreed turns not only upon the legal elements of the offence but also upon the factual elements essential to the case advanced for the prosecution and defence.'[44] Not only must there be unanimity as to the actus reus of the offence, but the elements must be 'anchored to the facts relied upon by the prosecution as the basis of liability and put in contention by the defence. Without such agreement there is no common foundation for the verdict.'[45] The jury verdict will not be acceptable if 'based upon quite disparate findings relating to the very foundations upon which the verdict rests'.[46]

47 Particulars contained in a charge ensure that an accused is given notice of the case against him. They are likely to assist in identifying essential ingredients of the case upon which jury unanimity will be required. Where there are multiple particulars, each of which may be sufficient to sustain the charge, and where the evidence leaves open the possibility of a finding that only one or some of the particulars have been established, a direction as to the need for unanimity will be required. This principle, when applied in the case of fraud charges with multiple particulars, any of which could sustain a guilty verdict, would require a unanimous finding as to the particular deceit practised.[47]

48 The elements of the offence of obtaining financial advantage by deception are as follows:**

(a) The accused obtained a financial advantage;

(b) the accused by deception obtained the financial advantage;

(c) the accused acted dishonestly in obtaining the financial advantage.

49 Section 81(4), as we have already said, gives a very wide meaning to deception. It means any words or conduct as to fact or as to law, and whether deliberate or reckless. The words or conduct constituting the deception form the actus reus of this offence. It follows that in the case of each charge the jury must be agreed as to the particular words or conduct of the accused that constituted the actus reus, addressing the particularised words or conduct alleged with respect to that charge. The jury must be agreed as to the particular words or conduct constituting a deception; and be agreed that as a consequence of those words or that conduct the accused obtained a financial advantage.

Did the judge err by not giving a direction as to unanimity?

**50 Each of the 53 charges upon which the appellant was convicted contained, on the indictment, between three and six particulars, being different false representations which the appellant was alleged to have made to the various investors. Counsel for appellant submitted that, although the trial judge correctly directed the jury that, with respect to each charge, it need not be satisfied of all the alleged false representations, he failed to direct the jury that it must be unanimous that at least one of the multiple false representations had been materially operative. The jury was properly directed that it could reach its verdict on each charge by different paths of reasoning. But that direction had the unintended effect of detracting from the requirement that the jury be unanimous in the way required.

51 In response, the respondent submitted that directions were sufficient. Counsel pointed to directions, or submissions of counsel endorsed by his Honour, that - (1) the essential ingredients or elements of the charges must be proved beyond reasonable doubt; (2) one of those elements was that there be deception by a false representation; (3) the jury must be satisfied beyond reasonable doubt that the accused had made a false representation, that he knew it was false or probably false, that he intended it to be acted upon, and that he obtained a financial advantage as a result of making that false representation; (4) in relation to every charge, the jury must acquit if any of those elements had not been proved beyond reasonable doubt; (5) -**

... let us take for instance charge 1, it involves an allegation that the accused 'dishonestly obtained for himself on 21 December 2005 a $5,000 financial advantage by deception, namely by falsely representing' and then there are five false representations that are set out in that count, that he had a law betting trading account with Jeff Walters, that the money was secure with the bookmaker as bookmakers are under strict controls and all bets are recorded, that it was his intention that the money be used for the sole purpose of lay betting on behalf of investors, and that his betting results and the profits generated by the fund were genuine - the prosecution, as Mr Rose correctly told you, do not have to prove every one of those allegations in relation to each offence. What the prosecution have to do is prove every element of each offence I have taken you to. There are three elements to the offence of obtaining a financial advantage by deception and they need to prove beyond reasonable doubt each of those elements. If you were satisfied beyond reasonable doubt of one or more of the particulars set out in the particular charge, that would be part of your consideration as to whether the elements had been proved beyond reasonable doubt. So what I am saying is the prosecution do not have to prove (a) and (b) and (c) and (d) and (e), it is sufficient if they prove one or more of them and, having proved that, that the other elements of the offence are made out. Do you follow?[48]

It seemed to me, Madam Forewoman and members of the jury, that the issues in dispute in this case really start at element 2 of each charge: did the accused make a false representation? Did he know it was false or probably false? Did he intend that it would be acted upon? Did the false representation cause the financial advantage? Did he obtain the financial advantage dishonestly?

Each of those issues which embrace elements 2 and 3 must be proved beyond reasonable doubt in respect of each charge.[49]

52 Immediately before the passage in his charge which we have just set out, his Honour gave this direction:

In almost all criminal cases a verdict of guilty or not guilty must be unanimous, that is whatever decision you make you must all agree on it. So if, for example, you were to find Mr Magnus guilty of charge 1, then you must all agree that he is guilty of that offence. In exactly the same way, if you are to find him not guilty of charge 1, then you must all agree that he is not guilty of that offence. However this requirement does not mean that you must reach your verdict for the same reasons. Indeed, you may each rely on quite different reasons for making your decision. For example, you may each rely on different parts of the evidence or you may each emphasise different aspects of the evidence. What is important is that no matter how you reach your verdict you all agree. Your verdict of guilty or not guilty in relation to each count must be unanimous, the agreed decision of you all.

**53 It is clear that his Honour never said, in terms, that the jury must be unanimous, with respect to each charge separately considered, that a particular representation had been made and had been acted upon by the victim. On the other hand, the direction noted at [45](5) above got very close to what - as the appellant would have it - was needed, likewise the direction at [45](6). The latter, however, may have been undermined to an extent by the 'separate pathways' direction noted at [46].

54 In the somewhat ambiguous circumstances thus identified, the question whether the appellant has established that there was an error or irregularity in or in relation to the trial should not ignore the way in which the trial was conducted. Two matters should be noticed.

55 First, the very experienced and able counsel who appeared for the appellant at trial did not take a relevant exception to the charge.

56 Second, in his final address, counsel - (1) identified certain representations which he submitted could not be relied upon by the Crown in proof of certain charges; (2) sought to hammer home the proposition that the complainants knew that the scheme was not going to involve lay betting exclusively; (3) submitted that the rules of the scheme, in the production of which Scott, Draudins, Brooks and the appellant were involved, gave the appellant absolute discretion to make wagers as he saw fit; (4) contended that the application form to enter the scheme made no mention of lay betting; (5) in substance contended, despite all complainants present having denied it, that lay betting was not mentioned at a meeting held on 8 March 2006; (6) asserted that only one complainant, Cope, had given evidence of acting upon the 'May prospectus', which referred to lay betting; (7) submitted that there was nothing to connect his client with the purported bookmaker's statements; (8) submitted that Draudins' evidence that the lay betting representation operated upon him throughout was not consistent with other evidence which the witness gave; (9) submitted that Blade's evidence admitted of the possibility that he understood the betting was to include both lay and non-lay betting; (10) submitted that there was the possibility that Scott misunderstood the kind of betting which was to be engaged in; (11) contended that Hayne was influenced by the prospect of (generous) returns; (12) said that Rabin had not understood what lay betting was; (13) relied upon Burke having not identified lay betting as a feature of the scheme; (14) submitted that Cope, on his account, had received a prospectus which referred to lay betting, and had been led to understand that the scheme was a lay betting scheme. But that did not sit with the absolute discretion given to the appellant to place bets; (15) submitted that a document seen by Belcher supported there being both lay and other forms of betting.

57 It will be apparent from all of this that counsel focussed - not exclusively, but overwhelmingly - upon the allegedly operative representation, alleged by each charge, that this was a lay betting scheme. The attack took a number of forms: that complainants may have misunderstood the nature of the betting which was to be undertaken; that the scheme, according to documents, was either not a lay betting scheme at all, or else a scheme which permitted, but did not mandate, lay betting; that documents were in conflict with what complainants said had been represented to them; and that one complainant did not understand what lay betting was.

58 Counsel sensibly constructed his argument in that way because, with at most two exceptions, the complainants swore that the lay betting representation had been made and had been operative in their parting with funds. The gist of the evidence of those witnesses was that lay betting was the distinctive feature of the scheme, being claimed to offer a greater prospect of winning than betting on horses to win or place.

59 The judge charged the jury extensively as to the evidence given by the complainants. There were scarcely any exceptions to his charge. He provided an indexed transcript of the evidence, counsel's addresses, and his charge, to the jury for its assistance when it retired to consider its verdict. He also provided an aide memoire as to the elements of the offence,[50] and what he called a road map, which identified the charges relevant to each complainant and admissions made.

60 We have described the course that the trial took because it seems to us that the Crown case against the appellant, in respect of all but two complainants, rested on the core representation that this was to be, exclusively, a lay betting scheme. If the jury had not found that representation to have been made, and to have been operative, the Crown case respecting nine of the 11 complainants would have failed. It is true that other representations, on the Crown case, had been made; and some evidence was given about them. But the other representations essentially related to the working out of the assumed lay betting scheme.

61 Then, as to the remaining two complainants, the evidence of one - Belcher - strongly suggested that lay betting, though imperfectly described, had been an operative representation; but that the feature which most obviously motivated investment had been the apparent profitability of the scheme. The evidence of the other complainant - Burke - had focussed upon the purported profitability.

62 In all, the evidence of nine of the complainants[51] meant that the Crown case rose or fell on one representation, whilst with respect to the two remaining complainants it rose or fell on another representation.

63 The fact that no exception was taken to the judge's charge must be understood in that light. This was not a case in which there was a prospect of the jury convicting the appellant on any charge except if it was unanimous in finding that a particular representation had been made and had been operative with respect to the particular transfer of funds.

64 We are not persuaded, in these circumstances, that there was an error or irregularity in the charge. Rather, it addressed the issue of operative representation in the way in which that issue had crystallised.**

**65 If, contrary to our conclusion, there was error or irregularity in the charge, we are not satisfied that, as a result, there was a substantial miscarriage of justice. Having considered the entirety of the record, we are satisfied beyond reasonable doubt, in the case of each charge, that a verdict of guilty was inevitable in the sense that the jury acting reasonably on the evidence before it, correctly directed, and applying the correct onus and standard of proof, would have been bound to convict, there being no room for reasonable doubt.[52]

66 Once it was concluded, as in our view was inevitable, that the appellant promoted this scheme as an exclusively lay betting scheme,[53] and that it was consistently generating large profits - the first representation being decisive for nine of the 11 investors, and the latter being decisive for two of them - it was not in issue that funds corresponding to each charge were transferred to the benefit of the appellant. There was overwhelming evidence that the appellant did not engage in lay betting - whether through the bookmaker Walters, or otherwise - that the scheme did not make the large profits represented to the complainants as having been made (but instead lost money), that the appellant created the false documents which showed large profits being made, and that he engaged in palpably false activity to conceal what had really happened. His dishonesty in effecting the false representations and thereby obtaining the financial advantage was not open to any doubt.**

'He had a lay betting trading account with a bookmaker named Jeff Walters' - ACCOUNT

'it was his intention that the money would be immediately transferred to the account he held with Jeff Walters' - TRANSFER JW
'it was his intention that the money would be immediately transferred to the account he held with a bookmaker' - TRANSFER BM
'the money was secure with the bookmaker as bookmakers are under strict controls and all bets were recorded' - SECURE
'it was his intention that the money would be used for the sole purpose of lay betting on behalf of the investors' - LAY BETTING
'his betting results and the profits generated by the fund were genuine' - GENUINE RESULTS
'the terms and conditions of the syndicate rules and prospectus were genuine' - GENUINE RULES
'the money was safe with the bookmaker as trades were covered by the bookmakers guarantee fund' - SAFE
'it was his intention that the money would form part of a lay betting fund, in which bets would be made by him on losing horses only' - LOSING

Account, transfer JW, secure, lay betting, genuine results