Supreme Court of Tasmania|1987-12-24|Before: Wright JJ

Murphy v R [1987] TASSC 15; (1987) Tas R 178 (24 December 1987)

NETTLEFOLD J This is an appeal which seeks an order quashing the conviction of the appellant on each of four counts of dishonestly obtaining a financial advantage contrary to s.252A of the Criminal Code. The grounds of the appeal are:

1. "The learned trial judge erred in law in leaving for the

consideration of the jury the four counts of dishonestly obtaining

a financial advantage."

2. "The learned trial judge erred in law in holding that the

taking or receipt of money could constitute a financial advantage."

2. The facts which the jury must have found are briefly as follows:

"(1) Count 1

Adrian John Holness said he received some telephone calls

from a stranger and arrangements were subsequently made to

meet a person at Lloyd's Hotel in Launceston to buy

certain electrical equipment for $9,600.00. He met a

person, whom the jury found to have been the Appellant,

as arranged and they went to the Launceston wharf area

where the person said to Holness 'I want to see the colour

of your money now', which Holness handed over in cash,

expecting shortly to receive the agreed goods in return.

The person told Holness to wait a minute, and disappeared

with the money. No goods were delivered to Mr Holness.

(2) Count 2

Robert Jeoffrey Lodge said he received certain telephone

calls from a stranger and in those calls arrangements were

made to meet a person at the Star Hotel, Launceston to buy

certain electrical equipment for a price of $8,500.00. He

met a person, whom the jury found to have been the

Appellant, as arranged and they went to a warehouse near

the wharf area. The person asked for the money for 'Lew'

to count it and said 'we'll bring the gear out'. Lodge

handed over the money and the person disappeared with it.

No goods were delivered to Mr Lodge.

(3) Count 3

Bevan John Woodhall said he received certain telephone

calls from a stranger and in those calls arrangements were

made to meet a person at the Riverview Hotel in Launceston

to buy certain electrical equipment for an agreed price in

the vicinity of $3,500.00. He met a person, whom the jury

found to have been the Appellant, as arranged and they

went to a wharf and he (the person) 'said he would like

the money in cash there because as soon as he went and

got the videos and came around he would be in a hurry and

could drop them in the back of the car ...' and 'I gave

him the money'. The person disappeared with the money and

no goods were delivered.

(4) Count 4

Leslie Zane Lyden said he received certain telephone

calls from a stranger and in those calls arrangements were

made to meet a person at the Tamar Hotel in Launceston to

buy 'damaged stock' electrical equipment for $4,500.00.

He met the person, whom the jury found to have been the

Appellant, as arranged, and they went to the wharf and Mr

Lyden 'passed the money over to (him) and he was taking it

into Tony to count and bring a forklift truck around with

the goods on'. The person disappeared with the money and

no goods were delivered."

3. Counsel for the appellant submitted that the Crown case was that the financial advantage by deception was the actual cash in each case. He submitted that, as a matter of construction, the term "financial advantage" in s.252A did not include actual money or goods. The term is not defined. However, counsel submitted that a comparison with other jurisdictions reveals that, at least in those jurisdictions, it is used in a sense not including money. For example, s.15 of the Theft Act 1968 (England) created the crime of obtaining property by deception ("property" being defined by s.4 as including money) and obtaining a pecuniary advantage by deception was a separate crime under s.16 of that Act. The expression "pecuniary advantage" was defined by s.16(2) of that Act. Counsel also referred to s.178BA of the Crimes Act 1900 of New South Wales which provided:

"(1) Whosoever by a deception dishonestly obtains for

himself or another person any money or valuable thing or

any financial advantage of any kind whatsoever shall be

liable to imprisonment for five years."

The term "financial advantage" was not defined by that Act. Counsel also referred to ss. 81 and 82 of the Crimes Act 1958 (Victoria) inserted by the Crimes (Theft) Act 1973. S.81 created the crime of dishonestly obtaining property by deception and is almost identical to the corresponding section in the English Theft Act 1968. S.82(1) created the crime of dishonestly obtaining a financial advantage by deception. The term "financial advantage" was not defined. Counsel also referred to s.227 of the Criminal Code of the Northern Territory which he said created separate crimes for obtaining property by deception and for purposes of gain inducing a person to engage in conduct.

4. Counsel submitted that this material made it clear that, when s.252A of the Code was inserted, there were several legislative models in existence which distinguished between "money", "property" and "financial" or "pecuniary" advantage. On that basis, it was submitted that "the failure to include 'money' or 'property' specifically in s.252A evinced a legislative intention that the obtaining of such items not be included in the crime, but continue when appropriate to be dealt with by the other, comprehensive, sections, eg Sections 250, 251, 252, 231, 226(2)(a)(i)". Counsel submitted that it is significant that other sections in Chapter XXVIII, for example, ss. 250, 252 and 253, specifically refer to anything capable of being stolen "further reinforcing that s.252A refers to incorporeal advantages. The interpretation of s.252A to include 'money' and 'property' would mean that many crimes would simply be dead letters." It was further submitted that "the so called 'golden rule' of interpretation would weigh against an interpretation of 'financial advantage' as including money or property in specie; such items are not readily or commonly embraced in the ordinary and natural sense of the words".

5. Learned counsel did not cite two rulings by judges of this Court which appear to give some support to his argument. In R. v. C.L. Howard, 26/1977, Crawford J gave an oral ruling on the applicability of the definition of the word "obtain" in s.249 of the Criminal Code to s.252A. The relevant part of s.249 reads as follows:

"In this chapter 'obtain' means an obtaining by the

offender from the owner, with an intent on the part of the

offender to deprive the owner permanently and entirely of

the thing obtained, and it includes cases in which things

are obtained by a contract which is obtained by false

pretence, unless the obtaining under the contract is

merely remotely connected with the false pretence."

Of course, s.252A is part of the same chapter of the Code, Chapter XXVIII, and it reads as follows:

"(1) Any person who by any deception dishonestly obtains

for himself or for any other person any financial

advantage is guilty of a crime. Charge: Dishonestly

obtaining a financial advantage.

(2) For the purposes of subsection (1) 'deception' 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 of any other person."

"It is a matter of difficulty if not impossibility to

apply the definition to an offence under s.252A

(particularly in the circumstances of the evidence in

this case). I resolve the matter by holding that the

definition does not apply to s.252A. A 'financial

advantage' is not a 'thing'. There is no 'owner' and

there cannot be 'an intent to deprive the owner

permanently and entirely' of a financial advantage."

The financial advantage alleged in Howard's case was deferment of due payment for a quantity of goods.

6. In R. v. Woodhouse, 29/1980, Neasey J applied the ruling of Crawford J in Howard in the course of ruling on a similar submission. He said (inter alia):

"I have to say first that I respectfully agree with

Crawford J that the relevant definition of 'obtain' is not

capable of being applied to s.252A. His Honour in

reaching that conclusion used the reasoning:

First, that it is inappropriate to speak of the 'owner' of

a 'financial advantage'. I agree with that. In any

precise sense there is no owner of a financial advantage,

which I take it means a pecuniary or monetary gain or

benefit. It does not exist, at least, not in the alleged

circumstances of this case, until it is acquired or

enabled to be acquired for himself or someone else, by

the person who obtained it.

Then, his Honour says, you cannot sensibly speak of

intending to defraud the owner permanently or entirely of

a financial advantage. Again, I agree. It has no owner

until it comes into existence in the hands of the person

who acquires it, and in whose hands, for the purposes of

s.252A, it remains.

Lastly, his Honour says a financial advantage is scarcely

a 'thing'. I agree. Certainly a pecuniary or monetary

gain or benefit can be called a 'thing' only in the

broadest sense."

The financial advantage alleged in that case was the acquisition by the wife of the accused of a property at an under value.

7. Counsel for the respondent submitted that the term "financial advantage" is comprised of two ordinary English words and the best possible financial advantage is that of money. He submitted that, in other words, all financial advantages eventually lead to a person being better off in monetary terms and hence money is itself the ultimate financial advantage. Learned counsel for the respondent submitted that s.252A was obviously designed to close all the gaps in relation to crimes analogous to stealing. If the appellant's submissions were in fact correct there would still be no provision in the Code to cover a situation where actual money has been obtained by a false promise or pretence as to future conduct.

8. I turn no to consider those arguments. What the argument for the appellant does, put succintly, is to assert the following:

(1) S.252A was inserted to fill a gap in the criminal law.

(2) The true nature and extent of the gap can be inferred from the legislative provisions from other jurisdictions cited during the arguments. Those provisions distinguished between "money", "property" and "financial" or "pecuniary" advantage.

(3) The words used in s.252A should be given a meaning which confines the section to filling the gap and not going beyond that function. The ordinary and natural sense of the words "financial advantage" weigh against an interpretation which would treat money or property in specie as falling within the scope of the term.

9. The defect in the argument for the appellant is that it assumes that Parliament intended to give to the words "financial advantage" one meaning which they are capable of bearing but to exclude other meanings which they are also capable of bearing. The assumption is derived from sources outside of the actual words which Parliament used and the context in which they appear. The correct approach was stated by Dixon J in Broken Hill South Ltd v. Commissioner of Taxation [1937] HCA 4; (1936) 56 CLR 337 at 371 as follows:

"The question is one of interpretation, and, unless an

artificial construction is adopted in order to avoid an

excess of constitutional authority, we must give the

meaning to the provision which we think it actually

expresses. In forming an opinion as to what meaning it

does express, we must be guided by the rules of

construction and, accordingly, consider the subject

matter and examine the rest of the statute in which it

occurs. But we must not forget that the chief of those

rules forbids departure from the ordinary grammatical

sense of the words used except for the purpose of avoiding

some obscurity or some inconsistency with other parts of

the statute."

10. We are concerned with the denotation of a term. The word "finance" may cover, depending on context, inter alia, payment of a debt, or of compensation; a ransom; stock of money; borrowing of money at interest; the pecuniary resources of a state and, hence, of a company or individual; to engage in financial operations; to provide oneself with capital. (SOED). The word "advantage", inter alia, has the meaning of having the better of another in any respect; the result of a superior position; to benefit or profit. (SOED).

11. These dictionary references show that the term "financial advantage" can embrace a payment of money as counsel for the respondent submitted.

12. There is no presumption against the overlapping of offences in the criminal law. It is by no means uncommon for conduct on the part of an accused to render him liable to conviction for more than one offence. Not infrequently there is some overlapping of offences. (See Laurence v. Metropolitan Police Commissioner [1971] UKHL 2; (1972) AC 626 at 633 per Viscount Dilhorne; see also R. v. Hayes (1969) 1 QB 364). Of course, in some cases the wording of the statute and the context may show that Parliament does intend to avoid overlap. But, in this instance, no such intention appears. The subject of s.252A is the obtaining of a financial advantage dishonestly and by deception. Any overlap between that section and other sections of the Code will merely supply an additional remedy in respect of conduct which cannot be other than anti-social or criminal. In addition, an examination of Chapter XXVIII suggests that giving a wide meaning to the term "financial advantage" will have the positively beneficial effect of covering cases at present not covered because of the principal limitation on the scope of the term "false pretence".

13. Giving the term "financial advantage" a meaning which covers the facts of this case gives some effect to the word "obtains" used in the section. Prima facie, all words must be given some meaning and effect (Commonwealth v. Baume [1905] HCA 11; (1905) 2 CLR 405 per Griffith CJ at p 414; Beckwith v. R. [1976] HCA 55; (1976) 12 ALR 333 at 337 per Gibbs J).

14. The construction adopted here would appear to gain support from the following observation of Gray J on the corresponding Victorian section in Matthews v. Fountain [1982] VicRp 104; (1982) VR 1045 at 1049:

"I was referred to a number of dictionary meanings of

'financial', 'pecuniary' and 'advantage'. I do not feel

any necessity to refer to them. The concept of 'financial

advantage' is a simple one. It is expressed by the use of

two common words each of clear meaning. I resist any

temptation to elaborate upon them. In my opinion, the

Victorian Parliament was wise in refraining from

attempting a definition such as s.16(2) of the Theft Act."

15. His Honour's observation captures plaining the essential point which is that the term to be construed consists of two common words each of clear meaning. For myself, I cannot see how these two words can be combined into a term without that term constituting a net which will hold the facts of this case. If a person by any deception dishonestly obtains an overdraft facility from a bank, he obtains a "financial advantage" within the meaning of s.252A. I find it too artificial to suggest that when he draws on the basis of the overdraft the money drawn is outside the denotation of the term. By refraining from any definition Parliament avoided sophistry of that kind and left the law to evolve case by case by an application of the ordinary meaning of the words used.

16. Cases where a person obtains services, money or property by means of a bogus cheque pose no difficulty. The services, money or property amount to a financial advantage (see "Obtaining a Financial Advantage by Deception", Elliott, (1978) 2 Crim LJ, p 23).

17. In the circumstances of this case, the section does not fall to be construed strictly and in favour of the accused. The ordinary rules of construction supply the meaning of the term. Consequently, there is no question of giving the appellant the benefit of any doubt (see The King v. Adams (1953) 53 CLR 567 at 567-8; Beckwith v. The Queen [1976] HCA 55; (1975-6) 135 CLR 569 at 576; Director of Public Prosecutions v. Ottewell (1970) AC 642 at 649; Farrell v. Alexander [1976] UKHL 5; (1977) AC 59 at 75).

18. With respect, the rulings of Crawford J and Neasey J in the cases cited above were correct on the facts before them. However, some of their observations are too wide and should not be followed. Of course, this appeal is from his Honour Mr Justice Neasey. With respect, his ruling was right and I would dismiss the appeal.

UNDERWOOD J I agree with the reasons for judgment of his Honour Mr Justice Nettlefold and the order he proposes.

WRIGHT J If one analyses the consequence of facts common to all 4 counts, one sees that the appellant induced each victim to part with money upon the implied but clear representation that he was in a position to hand over goods in exchange almost immediately. By depriving his victim of funds and placing himself in possession of the same, he created for himself a position of "advantage" as that term is commonly understood, both vis a vis his victim and also in respect of the world at large. The retention of funds by the appellant before delivering the goods need not have been contemplated as extending for anything but a comparatively brief period for the transaction itself to have conferred an advantage upon him because, during the short time which it was anticipated would separate the payment from the receipt of goods in exchange, the appellant had both the power and the capacity to treat the money as his own (cf Matthews v. Fountain [1982] VicRp 104; (1982) VR 1045 at 1049 per Gray J). It may be inferred that he was not merely a bailee of the cash at that time and that it was his to do with as he pleased.

2. In fact the appellant secured a much more extensive advantage than his customers bargained for because the consideration he was to provide, which would no doubt have nullified his original advantage and restored equality between the parties, never materialized. It seems to me that by fraudulently causing his unsuspecting customers to part with their cash in the expectation, induced by his conduct, that they would shortly receive goods, he obtained from them a plain financial advantage which, but for his deception would not have come about.

3. The adjective "financial" is one in common usage describing (inter alia) a wide range of commercial relationships or transactions in which the exchange of money or the express or implied promise to pay money is a prominent feature. It is not a term which has been given an artificially expanded or constricted meaning by the relevant statute. Whilst its breadth of meaning enables s.252A to enfold sophisticated fraudulent conduct previously beyond the reach of the criminal law and, perhaps, to make this its primary sphere of current operation, this alone should not create doubt or hesitation where a sensible interpretation of the plain words of the section permit its application to more mundane circumstances. I agree with my learned brother Nettlefold J that the history of comparable legislation in other jurisdictions provides little assistance in the interpretation of s.252A of the Tasmanian Criminal Code. I do not see it as being necessary to resolve any of the difficulties which may arise from the rulings of Crawford J in R. v. C.L. Howard 26/1977 and Neasey J in R. v. Woodhouse 29/1980 simply because it is plain to me that in the present circumstances the appellant "obtained" an advantage on any view of the facts - whether in the sense provided for in s.249, or in accordance with concepts more compatible with the intangible nature of an "advantage". I agree generally with the other matters discussed by my learned brother Nettlefold J in his reasons. In my view the appellant was rightly convicted and the appeal should be dismissed.

English Theft Act 1968

Murphy v R [1987] TASSC 15;

At a glance

Court

Decision date

Before

Source

Judgment (41 paragraphs)

Murphy v R [1987] TASSC 15; (1987) Tas R 178 (24 December 1987)

Parties

Legislation Cited (3)

Cases Cited (4)