MOYLAN -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 52 (8 March 2007)

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

(a) ...

(b) ...

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

...

is guilty of a crime ... "

6 The appellant appeals against his conviction on three grounds. Those grounds, including particulars, are as follows:

"1. In respect of Count 1, the learned trial Judge erred in failing to direct the jury as to the defence of honest and reasonable mistaken belief.

Particulars

(a) the Appellant had an honest and reasonable belief as to the approach that he made to Metcalfe and the position of the South Perth Council ('the Council');

(b) there was evidence that the Appellant had received instructions to put an ultimatum and options to Metcalfe;

(c) acting on the position by the Council, the Appellant had an honest and reasonable belief that what he was doing was at the request of and with the authority of the Council;

(d) thus acting on the request, the Appellant made the approach, acting honestly and reasonably believing that he was able to do so.

1. The element of Count 1 pertaining to the issue of 'gaining a benefit' could not be made out at law and the jury should have been so directed.

(a) the purported benefit was the gaining of an opportunity, without certainty of obtaining the said benefit, of an opportunity to apply for the position of CEO of the City of South Perth;

(b) there was no evidence led as to the chances of the Appellant in his bid for the position;

(c) it was the fact that the Appellant and others would have the opportunity of applying for the position of CEO and if he fulfilled the criteria for that position, then he would have had an opportunity for fulfilling that role, just as would any other applicant.

1. ...
2. ...
3. The learned trial Judge failed to give a direction to the jury as to 'good character'."

7 The appellant was, at all relevant times, an employee of the City of South Perth (the City). He began with the City in the position of Executive Manager, Business Services, in or about 1994 and moved through different positions. In or about 1998, he was appointed General Manager.

8 Prior to May 2000, the Chief Executive of the City was Mr Lyn Metcalfe. In April 2000, Mr Metcalfe took sick leave, commencing approximately 27 April. He underwent back surgery and, after release from hospital, was recuperating at home.

9 On 16 May 2000, Mr Metcalfe received a visit from the appellant. He had not been expecting him, but received a telephone call to the effect that he would be coming to see him. He had not summoned him to his house.

10 There is a divergence in the evidence as to what happened on 16 May 2000 and, indeed, 17 May 2000. Mr Metcalfe testified at the appellant's trial to the following effect:

" ... Mr Moylan advised me that the council were unhappy with the management structure that we had put in place just before I went on sick leave with a general manager and the chief executive and that they wanted to make some changes.

Who is they?---The council.

Yes?---They were giving me two options as to what should happen. One was a substantial reduction in my salary and the other one was a negotiated separation from the council.

Had you heard anything like this before?---Some time before, the Mayor, Ms Pierce, had indicated to me that my support within the council was wavering. It hadn't got to the stage of separation but she had mentioned to me before that some of the councillors weren't happy with me.

Was that formally or informally?---Informally.

Had you spoken to any other councillors?---Not at that time. No.

...

Aside from what you have just told us, did Mr Moylan tell you anything else? You were given some options?---Yes, I was given some options. He was of the view that he would not remain in employment with the city either, that if I went, then he would also go and he certainly wasn't going to be offered the chief executive role.

I will give you the piece of paper in a minute that was presented to you and I will ask you to identify it. But was anything told [to] you about what would happen if you didn't accept any of the options?---Yes, he indicated to me that the council were quite prepared to dismiss me and fight a wrongful dismissal case should that be necessary."

11 There was evidence that the paper handed by the appellant to Mr Metcalfe on 16 May 2000 contained the following:

"---Option 1, reduction in salary to $75,000. Two year performance-based contract. All accrued benefits plus a negotiated payment of [$]60,129 in total. Annual leave will also be discharged with long service leave. Back to work for commencement 1 June 2000. Option 2, negotiated separation effective immediately. Notice effective 19 July 2000. Payment includes long service leave to anniversary date, all accrued sick leave, all accrued annual leave. Total $64,620, plus extraordinary payment of three weeks pay for every year of service $64,615. Cumulative total $129,235."

12 Mr Metcalfe testified that he was taken by surprise when the appellant presented him with the options contained within the paper. He said that he told the appellant that he could not understand how the council could have reached such a decision. This was because prior to his departure on sick leave, he had been informed by the council that they were happy with the structure he had put in place. According to Mr Metcalfe, he asked the appellant to set up a meeting with the mayor and two senior councillors. No such meeting ever eventuated.

13 The appellant returned to see Mr Metcalfe on 17 May. Mr Metcalfe's evidence as to what transpired at that meeting was as follows:

" ... He basically came to tell me that the mayor didn't want to meet with me at that time, that they wanted an indication if I wasn't happy with the options and particularly option 2 as to what separation payment I would require for a negotiated settlement.

Did you have [sic give] him that indication?---Yes, I did.

Is it the case you subsequently concluded a negotiated settlement with the council?---Yes, I did."

14 Mr Metcalfe testified that, prior to the appellant's visit to him, he had not seriously contemplated resigning as Chief Executive of the City. At the most, he had discussed with the mayor a degree of lack of support that he felt he was getting from some councillors.

15 The appellant's account of what transpired on 16 and 17 May 2000 was entirely different from that given by Mr Metcalfe. He said as follows:

"Yes?---I only dealt with Mr Metcalfe when he requested that I attend his home.

When was that?---On 16 May 2000 I'm talking.

On 16 May. So you say you were requested that you attended his home?---That's correct.

How did that come to be?---In the first instance, on the day prior the then acting chief executive officer, Mr Stuart Downing, instructed me to attend upon Mr Metcalfe's home.

So that was the 15th?---That's right.

What did you do on that instruction?---I attended on Mr Metcalfe's home on the 16th.

Did you talk to anybody before you went to Mr Metcalfe's home?---No. I had no indication as to what the meeting was intended to be about."

16 According to the appellant, when he arrived at Mr Metcalfe's home, there was discussion about the organisation of the City and day-to-day activities. This led to discussion on a reform process which involved certain restructuring within the City's organisation. The appellant stated that the document upon which the various options were set out was not discussed at all at the meeting of 16 May 2000 and not until a meeting the following day.

17 The appellant contended that, at the end of the meeting on 16 May 2000, he was in a "quandary". Mr Metcalfe had told him not to proceed with any reform processes, but to his mind that was imprudent, given the serious nature of reform strategies that were required and which were favoured by upper level management. He said he returned to his office and spoke to the mayor, informing her of the discussion with Mr Metcalfe. He was given instructions that there was to be a "general approach of conciliation" which would involve sorting out the problem. The appellant also went to the Acting Chief Executive, Mr Downing, and sought information in relation to Mr Metcalfe's salary range and leave entitlements. When asked why he had done this, he said:

" ... As I said, there was a mind to seeking a conciliatory resolution that would see Mr Metcalfe return to the City of South Perth in his capacity as CEO whilst continuing with some form of agreement to at least continue with the momentum of the reform process. ... "

18 The appellant said that he returned to see Mr Metcalfe on 17 May 2000. His evidence as to what transpired was as follows:

"Can you tell us the content of the discussion between yourself and Mr Metcalfe on 17 May 2000?---Yes, I relayed to him that I had spoken to the mayor about our meeting the previous day, that the position from her perspective at that stage was that if he was to continue with the line of removing instruction to continue with the restructuring and reform without explanation or qualification, the council would not be terribly impressed. He, at that point, indicated that he was to maintain his position; he wanted to return as the chief executive officer of the City of South Perth but he was not going to remove the instruction for me not to proceed with the reform and that position in relation to returning would only be considered, any variation of that, by mutually acceptable terms and conditions for separation.

It was said that you said to Mr Metcalfe words to the effect that he would be sacked and the council would fight an unfair dismissal. Were those words said, or similar?---No, it wasn't said.

On the 16th?---No.

And the 17th?---No."

19 The appellant said that he then returned to the council with Mr Metcalfe's instructions which were to be represented informally to the council and without prejudice to his right to return as Chief Executive Officer. He added:

" ... However, notwithstanding his maintaining his right and entitlements that come with that position, he would be willing to, in principle, discuss acceptable terms and conditions for a separation and he spelt those out which I then, on my return to council, presented to her Worship the mayor."

20 The appellant testified that there was further communication between himself and Mr Metcalfe on 18 May 2000, in which Mr Metcalfe had asked for advice of the outcome of an informal meeting that evening. According to the appellant, he rang Mr Metcalfe at 11.15 pm to confirm that there was an in-principle agreement that there were acceptable terms for separation between Mr Metcalfe and the City. He then visited Mr Metcalfe the following morning, when there was discussion about what the appellant should do with his future.

21 The appellant was strongly challenged by the prosecutor about his evidence. The following exchange took place:

"Do you say that it was Mr Metcalfe who telephoned you or something like that when you went around on 16 May?---No, I actually attended Mr Metcalfe's home as - on instruction from Mr Downing, confirmed by Mr Downing in testimony.

But Mr Downing didn't tell you to put any options to Mr Metcalfe, did he?---I had no idea what the meeting was about.

Do you disagree with Mr Metcalfe's evidence that you attended his house and in effect provided him with a series of options as to his future employment with the council?---On 16 May; I certainly do.

...

So you deny Mr Metcalfe's evidence that you went around with that piece of paper and in effect told him that if he wasn't prepared to agree with the reformed agenda or whatever, the council was prepared to fight a wrongful dismissal suit?---Absolutely.

You deny saying that to him?---Absolutely.

You never said those words at all?---Never said those words at all."

22 The appellant was appointed to the position of Chief Executive Officer of the City. He denied the prosecutor's proposition that, on 16 May 2000, he was "after Mr Metcalfe's job". His evidence was that, at the council meeting on 29 May 2000, an offer was made to him to take the position of Chief Executive Officer. His initial reaction was that he was not willing to accept the offer because of various difficulties associated with the job. Subsequently, however, he did accept the position.

23 The prosecution set out to prove, first, that the appellant obtained the benefit of having the opportunity to apply for the position of Chief Executive Officer of the City; secondly, that he obtained that benefit with intent to defraud; and, thirdly, that he obtained the benefit by deceit or fraudulent means.

24 The alleged benefit which the prosecution contended the appellant had gained was the opportunity to apply for the position of Chief Executive Officer of the City, the position which Mr Metcalfe previously held.

25 Proof of the intent to defraud relied upon the allegation that the appellant had intended Mr Metcalfe to act against his best interests and/or intended to cause a detriment to him by reason of the fact the he was induced to seek redundancy from the City when he had no wish to do so.

26 The deceit alleged was by inducing Mr Metcalfe to believe that it was true that the council was giving him options in relation to retirement, when, in fact, that was not the case. It was, thus, alleged that the appellant practised a deceit knowing that what he was doing was entirely false.

27 The prosecution led evidence to support the assertion that the appellant had deceived Mr Metcalfe by telling him that the council had instructed him to put options and an ultimatum to him. The prosecution sought to prove that the council had given no such instructions and, indeed, there was no resolution of the council to that effect.

28 A number of former councillors were called to give evidence. Only one of them recalled any resolution of council concerning an approach to be made by the appellant to Mr Metcalfe about his continued position as Chief Executive Officer. Councillor Cook recalled that there had been a resolution authorising the appellant to approach Mr Metcalfe. Councillor Riou testified that no such resolution had been made by the council. All other councillors said that they had no recollection of any resolution. There was nothing in the minutes to support the position either way.

29 Ms Cook's evidence was that she thought the council had talked about the appellant approaching Mr Metcalfe and offering him options as to his future as Chief Executive Officer with the City. She was of the opinion that there had been a firm resolution. She testified that the appellant had been authorised by the council to approach Mr Metcalfe at a time when Mr Metcalfe was on leave.

30 Councillor Riou was firmly of the view that there was no such resolution. He was asked in examination whether he recalled any resolution of the council authorising the appellant to provide options or discuss with Mr Metcalfe the termination of his position as Chief Executive Officer. He responded that he had no recollection. He was pressed as to whether that meant he could not remember, or whether he meant there was, in fact, no resolution. He said, "No, there was no resolution".

31 The learned trial Judge directed the jury as to the three elements which needed to be proven by the prosecution beyond reasonable doubt. They were (1) that the accused obtained the benefit alleged in the charge; (2) that he obtained the benefit with intent to defraud; and (3) that he obtained the benefit by deceit or fraudulent means. Each of these was elaborated upon and I will come later to the direction in relation to the gaining of a benefit.

32 The learned trial Judge informed the jury that the prosecution case was that the appellant intended Mr Metcalfe to act against his interest, or to cause a detriment to him in that he was induced to seek redundancy from the City at a time when he did not wish to. His Honour pointed out that the appellant had said that he had no such intention at all. He told the jury that the appellant was insistent that his discussions with Mr Metcalfe on 16 and 17 May 2000 were purely about the implementation of proposed reforms in the structure in the City and Mr Metcalfe's possible separation from the City as a result of his apparent lack of commitment to that process.

33 The direction in relation to deceit was in accordance with authority; namely, that to deceive is to induce somebody to believe that a thing is true which is false and which the person practising the deceit knows or believes to be false. To act deceitfully, the appellant had to consciously behave in a way that was dishonest according to the standard of honesty of ordinary people. As the trial Judge pointed out, the jury was there to judge that standard.

34 The learned trial Judge elaborated on the evidence, pointing out that the prosecution's allegation was that the appellant had acted deceitfully in attending Mr Metcalfe's home on 16 May 2000 and informing him that the council had resolved that he be given two options; namely, a substantial reduction in his remuneration or a negotiated separation, failing which the council was prepared to dismiss him and fight any wrongful dismissal proceedings he might take. The prosecution case was that no such resolution had ever been made by the council.

35 The learned trial Judge put the appellant's position. He informed the jury that the appellant denied putting any of these things to Mr Metcalfe and, in particular, "flatly denie[d]" that he had put any kind of ultimatum to Mr Metcalfe. The learned trial Judge went on to say:

"The gravamen of the deceit; that is, the core of the deceit here, is that it's said that Mr Moylan went to Mr Metcalfe's home and told him that council had decided something when council had not made such a decision. There must be a causal link between the deception and the gaining of a benefit; in other words it must be the deception which caused in this case Mr Moylan to gain the alleged benefit.

This is a matter of some significance in count 1. The state's case is that as a result of Mr Moylan's approach to Mr Metcalfe, Mr Metcalfe decided to seek a negotiated separation when he would not otherwise have. The defence case is that the accused did not deceive Mr Metcalfe as to the council's position; rather, Mr Metcalfe himself wanted a voluntary separation because he was not prepared to undertake the administrative restructure that the council was planning."

36 The learned trial Judge read to the jury what he described as the "starkly different versions of what occurred" from both Mr Metcalfe and the appellant. Portions of that testimony, I have already reproduced.

37 His Honour pointed out that the prosecution case was that the appellant deceived Mr Metcalfe by telling him that the City's council had instructed him to put the various options and the ultimatum when, in fact, no such resolution had been passed at council level. His Honour pointed out that the appellant's case was that he did not misrepresent the council's position and, as far as he knew, the council had not made any resolution concerning Mr Metcalfe's position as Chief Executive Officer. The appellant said that he merely went to see Mr Metcalfe under instructions and not by reason of any resolution of the council.

38 The learned trial Judge summarised the evidence of the councillors and stressed that the evidence of Councillor Cook might be an important piece of evidence favourable to the appellant. It would be favourable to him if the jury concluded, or thought it reasonably open to conclude, that the council had authorised the appellant to present options to Mr Metcalfe with respect to his future tenure as Chief Executive Officer, including the putting of an ultimatum to him. If so, the appellant could not have acted deceitfully, because Councillor Cook's evidence, if accepted, would be evidence that the appellant actually had the council's authority to put options and an ultimatum.

39 The learned trial Judge told the jury that if they concluded that the council had authorised the appellant to do what the State alleged he did on 16 and 17 May 2000, or if it could reasonably have been the case that it did, the State could not, as a matter of law, establish that the appellant acted deceitfully. In that event, he would have to be acquitted. The learned trial Judge went on, however, to point out that even if it did not accept the evidence of Councillor Cook, that did not mean that the appellant acted deceitfully, because his position was that he did not know of the council's resolution, and had only gone to visit Mr Metcalfe at Mr Metcalfe's behest to discuss his future. He denied giving any ultimatums to Mr Metcalfe.

40 It will be seen that the evidence of the councillors was relied on by the prosecution to establish that, not only had the appellant visited Mr Metcalfe and put options and an ultimatum to him, but he was never authorised by the council to do it. It was, thus, asserted that he had acted deceitfully.

41 If, however, the evidence of Councillor Cook threw doubt upon that, the prosecution case could not be established in relation to the important ingredient of deceit. This was so, notwithstanding the appellant's own evidence that he knew of no council resolution, but only went to see Mr Metcalfe on instructions from the Acting Chief Executive Officer.

42 This ground contends that the learned trial Judge erred in failing to direct the jury as to the defence of honest and reasonable, but mistaken, belief. The particulars contend that the appellant had an honest and reasonable, but mistaken, belief in relation to the approach that he made to Mr Metcalfe. It is contended that there was evidence that the appellant had received instructions to put options and an ultimatum to Mr Metcalfe and in acting on the position which had been adopted by the council, the appellant had an honest and reasonable, but mistaken, belief that what he was doing was at the request of, and with the authority of, the council.

43 The difficulty with this ground of appeal is that the appellant's clear evidence was that, at no time, had he put a series of options and/or an ultimatum to Mr Metcalfe at the meeting he attended on 16 May 2000. The learned trial Judge stressed this fact to the jury several times. He described the appellant's evidence as a flat denial that he had ever put such things to Mr Metcalfe.

44 There was some discussion at the trial in relation to whether the defence of honest and reasonable, but mistaken, belief might be open. The learned trial Judge raised the subject with the prosecutor and defence counsel, noting that the latter had disavowed any question of authorisation to attend upon Mr Metcalfe and put the options and ultimatum to him. His Honour quoted defence counsel as having put to the jury that:

"This is not a case where it is said by [the appellant] that he had the authority of council. What he said is that he was asked to go around there by ... Mr Metcalfe through Mr Downing".

45 The prosecutor had opened the case on the basis that the jury would have to be satisfied beyond reasonable doubt that the appellant did not have any sort of honest and reasonable, but mistaken, belief that he had the authority of council.

46 The learned trial Judge expressed reservations about raising the defence. His Honour questioned whether the defence arose "legitimately on the evidence" and asked whether Councillor Cook had been talking about something completely different and not about any council resolution to give Mr Metcalfe an ultimatum. He asked defence counsel what view he held and was told by defence counsel that the evidence of Councillor Cook "came out of left field". His Honour then correctly stated that if what Councillor Cook had said was credible, or could reasonably be considered credible, then the appellant would have to be acquitted, because there would be no deceit. What he had said would not be false, because council would have given authority for the approach to be made.

47 Counsel for the appellant left the matter to the learned trial Judge, stating that his instructions were clear; namely, that the appellant had quite simply never made the assertions which the State alleged and which Mr Metcalfe said he had received.

48 At the end of this discussion, the learned trial Judge appears to have taken the view that he would put the defence of honest and reasonable, but mistaken, belief before the jury. In fact, he did not do so. No request was made at the end of his directions to the jury that he redirect on that point.

49 It seems to me that the primary question is whether there was an evidentiary foundation upon which the defence of honest and reasonable, but mistaken, belief could be put. In this respect, it is useful to set out the precise words of s 24 of the Code:

"A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist."

50 Counsel for the respondent placed emphasis upon the fact that that section excuses a person of criminal responsibility if, and only if, "the real state of things had been such as he believed to exist". He contended that there was no evidential basis or foundation for any direction under s 24 of the Code being given. Reliance was placed upon two decisions. The first is R v Sheehan [2001] 1 Qd R 198, and in particular a passage in the judgment of Pincus JA (at [59]). The facts of the case are entirely different from those which are under consideration here. The question was whether a mistake made by the accused was a mistake of fact or one of law. However, Pincus JA did make the following observation which is relevant to the present case:

"In the present case it is in my opinion not possible to identify any fact or facts which might have been mistakenly believed by the appellant and which if true would have exculpated him."

51 The second case relied upon is Cole v Firkins [2004] WASCA 24. There, EM Heenan J (at [19]) said words to the same effect:

" ... for the defence of mistake to succeed there must have been a positive mistaken belief in facts which, had they existed, would have made the defendant's conduct innocent."

52 Other passages from the judgment of EM Heenan J expand upon this statement. His Honour said (at [22]):

"The positive or affirmative nature of the mistaken belief necessary must involve the defendant attending to the relevant facts upon which the belief is based because ignorance or inadvertence will be insufficient: Gherashe v Boase [1959] VicRp 1; [1959] VR 1 and Von Lieven v Stewart (1990) 21 NSWLR 52 per Handley JA at 66. This doctrine was reviewed by Gleeson CJ, with whom Cripps JA and Slattery A-J agreed, in State Rail Authority of NSW v Hunter Water Board (1992) 28 NSWLR 721. The learned Chief Justice referred to the judgment of Dixon J in Proudman v Dayman (supra) in explaining the meaning of honest and reasonable mistake as a defence to a charge for a statutory offence as being that the defendant had reasonable grounds for believing in the existence of a state of facts which, if true, would take his act outside the operation of the enactment, and that on those grounds he did so believe."

53 There are also important observations in the High Court on the nature of the mistaken belief required before an accused person can avail himself or herself of the defence. In He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523, Brennan J, at 575, said:

"An absence of an honest and reasonable but mistaken belief is not the equivalent of knowledge of the facts which make the act criminal: in the first place, an absence of a mistaken belief is something less than knowledge. Thus inadvertence to a fact does not amount to knowledge of that fact, but it is consistent with the absence of a mistaken belief about it."

54 In Tabe v The Queen [2005] HCA 59; (2005) 221 ALR 503; (2005) 79 ALJR 1890, Gleeson CJ, at [20], said:

"In many cases, where a person is found to have custody or control of a substance, to the exclusion of others, being fully aware of its existence, and the substance is in fact a dangerous drug, then the person will claim to entertain an innocent belief, either of the specific or general nature considered above, as to the nature of the substance. That will not necessarily be so in all cases; there is a difference between not knowing that a substance is a drug and believing that it is not a drug. A person might entertain no belief at all, ..."

55 The last two cases concerned allegations of importing prohibited imports and possession of dangerous drugs. The facts of the cases are far removed from the present case, but the principle is clear: for the defence to be open, an accused person must show that he actually believed that a certain state of fact or facts existed which, if true, would mean that he would not be criminally responsible for the offence. A "positive or affirmative" belief must be present. That, it seems to me, is what was absent in the present case. The appellant did not assert any positive belief in any resolution by the council to the effect that he should wait upon Mr Metcalfe and put to him options and/or an ultimatum. Notwithstanding what Councillor Cook said, the appellant never relied upon any such resolution of the council.

56 When cross-examined by his co-accused Pierce, the appellant stressed that, in his negotiations with Mr Metcalfe, everything had to be done "without prejudice", because there had been no formal resolution of the council on the subject.

57 In the circumstances of the case, no evidential basis arose upon which the defence of honest and reasonable, but mistaken, belief could have been put before the jury. This must have been appreciated by the learned trial Judge when he reconsidered his initial view that the defence would need to be put before the jury. Quite simply, there was no evidence from the appellant that he had a positive mistaken belief in facts which, had they existed, would have made his conduct innocent.

58 There is a generally held view that trial Judges should be astute not to venture into the area of possible defences which rely upon some unreal or fanciful possibility and which are likely to over-complicate the task before the jury. Confusion of juries and the indulging in what has been described "over-sophistication" is to be avoided: The Queen v Brown (1987) 78 ALR 368; (1987) 32 A Crim R 162 per Miles J (at 382). See also Tully v The Queen [2006] HCA 56; (2006) 231 ALR 712; (2006) 81 ALJR 391, where Hayne J, at [77], referred to the need for trial judges to tell the jury no more than is necessary to identify the real issues in the case.

59 Because there was no evidentiary basis upon which the defence of honest and reasonable, but mistaken, belief could have been put before the jury, I do not consider ground 1 to have any substance.

60 Ground 2 contends that the element of "gaining a benefit" which was an essential ingredient of the charge against the appellant could not be made out at law and the jury should have been so directed. The particulars contend that "the purported benefit was the gaining of an opportunity, without certainty (my emphasis) of obtaining the said benefit, of an opportunity to apply for the position of CEO of the City of South Perth". It is further contended that there was no evidence led as to the chances of the appellant in his bid for the position and it was the fact that others would have had the opportunity of applying for the position in any event.

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.

62 Although the appellant contends that the essential ingredient of the charge that a benefit had been gained could not be made out at law, no authority was cited to support that proposition. Various cases were referred to, but none touches the point in question; namely, 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 of the Code. The Western Australia cases referred to related to the offence of false pretences which was contained within an earlier version of s 409 of the Code. Seiler v The Queen [1978] WAR 27 and Clemesha v The Queen [1978] WAR 193 were concerned with the meaning of the word "obtains" when related to the acquisition of goods. The English case of R v Harden [1963] 1 QB 8 also related to an offence of false pretences. It was concerned with the obtaining of a cheque.

63 Counsel for the appellant suggested that this Court should make a definitive pronouncement on whether the gaining of an opportunity to apply for a professional position could be said to be the gaining of a benefit. He put it that whatever opportunity the appellant may have gained was only a qualified opportunity, namely, the opportunity to apply for a job. There was no certainty that it would be awarded. Further, the appellant only obtained the position of Chief Executive Officer after the council had given careful consideration to the applications before it. The selection of the appellant was made on merit.

64 I am of the opinion that the opportunity given to the appellant to apply for the position of Chief Executive Officer, 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.

65 The decided cases to which the Court was referred deal with benefits in the sense of money and/or chattels. The gaining of a benefit by reason of an opportunity to apply for a position does not seem previously to have been considered in any decided case. Some assistance may be gained from Director of Public Prosecutions v Raines (1995) 79 A Crim R 448. The case was concerned with the meaning of s 14 of the Crimes (Confiscation of Profits) Act 1989 (Qld), s 3 of which defined a "benefit" to mean "includes service and advantage". Shepherdson J (at 450) found that a sum of money which had come into the respondent's possession in exchange for heroin he sold was a benefit to him in the sense that it "brought an advantage" to him. His Honour then added:

"The definition of benefit is not exclusive. It may be thought that I am stretching the meaning of 'benefit' to say that each receipt of the three sums was a benefit in the sense that it placed the respondent in a superior position: see the Shorter Oxford English Dictionary definition of 'advantage'."

66 Further assistance is to be found in R v Pedersen [1995] 2 NZLR 386. This case also dealt with proceeds of crime legislation, being the Proceeds of Crime Act 1991 (NZ). Section 25 of the Act provided for a pecuniary penalty order in respect of "benefits" derived by a person from the commission of a serious offence. Cooke P and Richardson J, at 390, said:

"In ordinary usage 'benefits' is a wide expression. No doubt it was seen as appropriate in the Proceeds of Crime Act as a comprehensive term, since money, property and other benefits all fall to be valued under s 27. Words such as 'proceeds', 'receipts' or 'payments' would not have had the same breadth, or at least not so clearly. The wide and residual meaning of 'benefit' has long been recognised in common law, as in the famous definition of consideration adopted from Comyn's Digest in Currie v Misa (1875) LR 10 Exch 153, 162:

'A valuable consideration, in the sense of the law, may consist either in some right, interest, profit, or benefit accruing to the one party, or some forbearance, detriment, loss, or responsibility, given, suffered, or undertaken by the other: Com Dig Action on the Case, Assumpsit, B.1-15'. "

67 In Mansfield v Director of Public Prosecutions [2007] WASCA 39, Steytler P (with whom McLure and Buss JJA agreed) referred (at [41]) with apparent approval to the passage I have quoted from R v Pedersen (supra).

68 The appellant was arguably placed in "a superior position" by reason of Mr Metcalfe's resignation. He thus gained a benefit. A benefit can, in my opinion, also embrace an advantage. "Benefit" is defined in the Shorter Oxford English Dictionary to include "advantage". The word "advantage" is, in turn, defined to include "to benefit".

69 I consider that, as a matter of law, the gaining of the opportunity to apply for the position of Chief Executive Officer of the City was the gaining of a benefit. It does not matter that the opportunity was qualified, because others might also apply for the position. Nor does it matter that applications for the position involved consideration of the merits of the applicant. It was the opportunity which the appellant had by reason of his alleged deceitful conduct in bringing about Mr Metcalfe's resignation that constituted the gaining of a benefit. I would dismiss ground 2.

70 This ground contends that the learned trial Judge erred in law in failing to give a direction to the jury as to "good character". It was not a ground strongly pressed by counsel for the appellant. This was not surprising, as defence counsel at trial (different counsel) had not sought any direction on good character and the appellant had not specifically adduced evidence of good character.

71 The complaint made is that because the learned trial Judge gave a character direction in relation to the co-accused, a similar direction should have been given in relation to the appellant, who was of good character because:

(a) he had an unblemished history of work with the council;

(b) it had never been alleged that he was guilty of any improper conduct in his employment;

(c) his general antecedents and history were favourable;

(e) he had been appointed General Manager of the City of South Perth; and

72 The evidence put forward by the appellant in relation to these matters was that he had begun work in his father's real estate business in the early 1980s and worked there for some years before taking a position as a law clerk (not a lawyer) with the law firm Parker & Parker. He then worked as a senior commercial property manager with an international organisation based in Perth and, in about 1991, joined the City of Fremantle as Property Manager. In 1994, he joined the City of South Perth as Executive Manager of Business Services and, by 1999, was offered the position of General Manager. Eventually, he became Chief Executive Officer after Mr Metcalfe's resignation. No independent evidence was called in relation to the character of the appellant.

73 By contrast, the co-accused Pierce elicited specific evidence of good character. This she did through the prosecution witnesses. They were former councillors of the City, Ms Allison, Ms Cook, Mr Eisenmann and Mr Rattigan. Council employees also testified as to the appellant's integrity and commitment to the City. The co-accused represented herself at the trial, but she clearly understood the importance of character evidence. One example is to be found in her questioning of Councillor Eisenmann:

"Thank you Councillor Eisenmann, but just one last question. As mayor would you say I worked hard and was honest in my endeavours?---Definitely, yes, and I had no problems with that. You were appointed on a platform of change. I thought you tried to institute that. I had no problems with what you did and your honesty. You worked hard for the city and look, if you were a mayor again and I was serving on council I would be honoured to serve under you in the community again, I have no problems with that."

74 The respondent contends that the evidence which the appellant gave in relation to his character was insufficient to enliven the learned trial Judge's discretion to give a character direction in his case. Reliance is placed upon Melbourne v The Queen [1999] HCA 32; (1999) 198 CLR 1 in which the High Court held that a trial Judge is not obliged to direct a jury about an accused's good character, but has a discretion whether or not to do so after evaluating the probative significance of the evidence in relation to the accused's propensity to commit the crime charged and the accused's credibility. Counsel for the respondent also referred to Oui v The Queen [2006] WASCA 76, where McLure JA (with whom Steytler P and Buss JA agreed) pointed out that where the only evidence of good character is the appellant's lack of prior convictions, and there is some support for the view that the absence of prior (pre-trial) convictions cannot, of itself, support a positive finding that a person is of good character (at [14]).

75 In the present case, the appellant did not even testify to the fact that he had no prior convictions, but merely gave evidence about his background of work with the council of the City. Although the ground of appeal contends that he testified to an unblemished history of work with the council, his evidence was more directed to an indication of the extensive duties that he had and the success with which he saw the way in which he performed his work.

76 A case with some similarity to the present is Burke v The Queen, unreported; CCA SCt of WA; Library No 940602; 2 November 1994. There it was contended that the trial Judge had erred in law in failing to draw to the attention of the jury evidence relating to the good character of the accused. The only evidence that could be categorised in that respect was the opinion of witnesses that the accused was a generous man (in contrast to the prosecution's contention that he was motivated by greed); that he was a prodigious worker; that he was a kind person, "generous to a fault not greedy"; and that he had no criminal convictions. Rowland J (with whom Franklyn and Owen JJ agreed) said (at 11 - 12):

"The difficulty, however, which I have is in ascertaining, in the circumstances of this case, what it was that the learned trial Judge could have said to the jury. The character evidence said to warrant the direction was that some witnesses said that the appellant was not a greedy man and that he was generous to his friends and staff, and that he had no criminal record. It certainly did not occur to senior counsel at the trial that if he regarded that as character evidence, then it required a direction. I have difficulty in ascertaining how that evidence fits the description of evidence in 'disproof of guilt' or 'making it unlikely that he committed the crime' (Attwood v The Queen [1960] HCA 15; (1960) 102 CLR 353, at 359). The basic thrust of the defence in this regard was that the appellant was well known as Premier. He had a high profile and it was suggested that he would not stoop to this form of dishonesty which would endanger himself, his office and his political party. In my view, there really was little evidence that could be classified as character evidence which went to his reputation."

77 In my view, it has not been shown that the learned trial Judge erred in the exercise of his discretion when he decided that no direction as to good character was called for in the case of the appellant. It was a matter of discretion, and, no error of principle having been demonstrated (House v The King [1936] HCA 40; (1936) 55 CLR 499, at 505), this ground should in my view be dismissed.