R v Jenkins [2002] VSCA 224 - VSCA 2002 case summary — Zoe

VICVSCA

R v Jenkins [2002] VSCA 224

[2002] VSCA 224

Court of Appeal (Vic)|2002-12-20|Before: ORMISTON and CHARLES, JJ.A. and O'BRYAN, A.J.A.

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Source facts

Court

Court of Appeal (Vic)

Decision date

2002-12-20

Before

ORMISTON and CHARLES, JJ.A. and O'BRYAN, A.J.A.

Source

Original judgment source is linked above.

Judgment (370 paragraphs)

[1]

[ 2002] VSCA 224

[2]

CRIMINAL LAW - Conviction - Furnishing false information contrary to s.83(1) of the Crimes Act - Whether a valuation report for mortgage lending by a Friendly Society is a document used for an accounting purpose - Obtaining financial advantage by deception contrary to s.82(1) of the Crimes Act - Whether there was evidence of a causal connection between the alleged deception and the obtaining of the financial advantage - Whether an accomplice warning was required.

[3]

Between April 1988 and August 1989 the applicant obtained loans, advances and credit facilities of many millions of dollars, in truth, as I understand the calculations, in excess of $69m., from the friendly society then known as the Order of the Sons of Temperance Friendly Society ("O.S.T.") for the purpose of various purchases of land and the development of buildings and entertainment complexes in Queensland, as well as a further $96m. guarantee facility in relation to the development of complexes known as Dream World and the Great Adventures Portfolio. Indeed it is not disputed by the applicant that those loans, advances and facilities were granted to him or to two companies under his control. What is and has been disputed is whether he obtained those loans, advances facilities and the like in breach of either or s. of the of this State ("the Act"). After an extensive trial in the Trial Division of this Court the jury found him guilty on ten counts of the relevant 13 counts on the presentment, acquitting him on three of those counts and in addition on two further counts of providing secret commissions. The facts and circumstances are set out in detail in the judgment of O'Bryan, A.J.A., although, with great respect, I would not agree with all the inferences drawn by him, nor with his conclusions as to ground 2.

[39]

For reasons which will appear, I am afraid I cannot accept the learned judge's reasoning, which regrettably seems also to have infected his approach to the manner in which he directed the jury on this subject. It is an overstatement to say, as the judge did, that the valuation report was "used for the purpose of calculating" the amount of the loan. None of the requests or applications, as I understand them, sought a sum by reference to a percentage or proportion, for they sought specific sums. The valuations therefore were not required for the purpose of actually calculating the amount of the loans; they were only required to check that the amount sought by way of loan or advance did not exceed the prudential requirements of the FSA. Thus, in my opinion, they were used to check that the amount to be lent or advanced was not excessive but not actually to calculate it. If they were merely a means of making that check then, again contrary to his Honour's observation, that process was not an accounting exercise but an exercise for the purpose of satisfying the prudential requirements of the legislation, for it did not control the amount lent or determined the relevant figure calculated, except to the extent that it placed a maximum upon that which could be lent in conformity with the FSA. The Society determined what sum it wished to lend or advance, whether as requested by the borrower or whether in order to put a lower figure by way of counter offer, and the valuation was used solely to ensure that there was no breach of s.69. On the evidence before the Court, I therefore do not consider that it was an accounting exercise which was then performed; rather it was a prudential exercise and valuation documents were kept, not for the purpose of making any calculations or further calculations as to the sum to be lent or that which the Society would agree to lend, but merely as documents retained in order to satisfy any prudential "audit" carried out pursuant to the FSA.

[47]

, though relatively simple in form, has a number of unusual aspects both of substance and expression, which are largely the product of its history. When inserted into the Act in 1973 by the Crimes (Theft) Act 1973 [15], it had a side note, "False accounting", which is now printed in the Act as a heading but, as O'Bryan, A.J.A. has pointed out in para.[149] of his judgment, those words cannot be of assistance in the interpretation of the section by reason of the relevant provisions of the Interpretation of Legislation Act 1984.[16] That cannot, however, deny a proper characterisation of the section as one directed to the falsification of accounting and related records and the provision of false material contained in accounting and related records and documents. That this is so may be seen not merely from its language, but also from its sources and the reason for its introduction into the Act. As is well known, the section, together with most of the provisions found in Division 2 of Part I of the Act, was taken from the Theft Act 1968 (U.K.), as part of a policy decision to simplify, as was then hoped, the law relating to theft and other property offences. The reasons behind Parliament's decision to insert those provisions may be seen in a relatively short report of the Chief Justice's Law Reform Committee's Sub-Committee on Theft, under the chairmanship of Menhennitt, J., dated 8 February 1971. There were only some minor proposed alterations to the provisions adopted in the English Theft Act which are not presently relevant, so that when the Sub-committee recommended that "false accounting" should be covered by the amending provisions to the Victorian Act[17], one may fairly take it that they were recommending the adoption of s.17 of the English Act (and related sections), the whole of which was in fact set out in Annexure 1 to the Sub-Committee's report. The only difference between s.83 as inserted into the Victorian Act and s.17 of the English Act was in the reference at the end of para.(b) of s.s.(1) to the class of guilt and the maximum level of punishment. In fact, it is only those provisions which have been amended over the years in Victoria, essentially varying the level of punishment.

[49]

Before turning to the recommendations of the Criminal Law Revision Committee, it is desirable to make one general observation and then to describe some of the history of the sections which s.17 of the English Act was intended to replace, which is largely reflected in the sections which s.83 was intended to replace, although the Victorian Sub-Committee did not concentrate greatly on earlier provisions in this State. In the first place s.83 (and s.17 of the English Act) had an unusual characteristic in that it is effectively an inchoate offence, which does not require proof of the taking of property or the obtaining of any benefit or financial advantage. The offence is complete, under paragraph (a) if there is a falsification (in the broad sense) of any account or relevant record or document, and in the second place, under para.(b), if there is merely a furnishing of information using such an account, record or document knowing it to be materially misleading or deceptive, again speaking in general terms. The opening words show that there must also be proof of dishonesty and also that the alleged act has been done "with a view to gain or with intent to cause loss", each heads which are themselves defined[19], words which indicate that gain or loss need only be contemplated, not effectuated for the purpose of making out an offence under the section. Bearing in mind the general law as to attempts[20] and the common law of conspiracy to defraud, one might fairly ask why this specific kind of inchoate offence was needed, especially in circumstances such as the present where, for the most part, financial advantage was indubitably obtained, indeed not disputed, by the applicant who challenges only the prosecution as to the criminal manner in which he obtained those advantages by way of loan, advance, guarantee and the like. Each of the reports points out, however, that at the time the various predecessor statutory provisions were passed, there were many deficiencies in the common law relating to fraud and the obtaining of benefits by deception, which at first were remedied by Parliament in one way or another, but by provisions largely directed to specific problems.

[51]

The relevant sections of the Punishment of Frauds Act were ss.6 to 8, shortly thereafter re-enacted as ss.82 to 84 of the Larceny Act 1861[25]. Each section was confined to directors, managers, public officers and members of any body corporate or public company. By s.83 it was made punishable if such a person should "with intent to defraud, destroy, alter, mutilate, or falsify any book, paper, writing, or valuable security belonging to body corporate ..., or make or concur in the making of any false entry, or omit or concur in omitting any material particular, in any book of account or other document ... " (emphases added). It will be noted that the section comprehended the making of false entries and the omitting of material particulars not only in any book of account but also in all other business documents and it likewise made punishable generally the alteration or falsification of books, papers and the like without confining that aspect to accounts or similar records. By s.84 it was made punishable if such persons should "make circulate or publish, or concur in making, circulating, or publishing any written statement or account which he shall know to be false in any material particular, with intent to deceive or defraud any member shareholder, or creditor of such body corporate or public company, or with intent to induce any person to become a shareholder ..., or to intrust or advance any property to such body corporate ..., or to enter into any security for the benefit thereof ...". This prohibition on the publishing of false statements or accounts was, it should be noted, general in effect and was largely designed to prevent the publication of false prospectuses which were seen to be rife at the time, which was shortly after the introduction by statute of incorporation with limited liability.[26] A further section in that legislation, seen subsequently to have been of significance, though of more limited scope, was s.6 of the Punishment of Frauds Act, re-enacted as s.82 of the Larceny Act 1861, which imposed penalties on directors and the like who received property but who, "with intent to defraud, omits to make or to cause or direct to be made a full and true entry thereof in the books and accounts of [any] body corporate ...".

[57]

The objects sought to be achieved by the learned authors of the Criminal Law Revision Committee Report on Theft and Related Offences nearly 100 years later, nevertheless, were made clear in that report. They were looking at all property offences and seeking to rationalise, clarify and improve them as part of one coherent scheme. It was known that there had been much duplication, as well as glaring omissions because of the piecemeal form that past legislation had taken: see paras.6-14. As part of their reform of offences based on false pretences they put forward the offences of obtaining property by deception and obtaining financial advantage by deception, although the subject matter of the latter offence was somewhat narrower than that ultimately passed in Victoria. As the Committee stated in para.102, the proposed clause 13 (s.17 of the Theft Act) as well as clauses 15 and 16 were intended to deal with offences of fraud not covered by the criminal deception proposals therein earlier discussed. Sections 82 to 84 were, together with the Falsification of Accounts Act, to be repealed and replaced by more simply expressed offences directed to "falsification of accounts". Those aspects of s.84 of the 1861 Act, in particular, penalising directors and officers for publishing false statements were to be preserved in clause 15 (ultimately s.19 of the Theft Act, which substantially corresponds to s.85 of the Victorian Crimes Act), which they said was a clause which in substance "penalises false statements by company directors and persons in similar positions".[31] The reason for this was that the former s.84 "was originally intended for and is primarily concerned with, fraudulent statements in prospectuses"[32]. Its language was so wide that it would have included, for example, a statement made by a member of a non-commercial body corporate on a subject not concerning finance. Clause 15 may be therefore seen as intended to deal separately with the kinds of deception likely to be committed by directors and officers of companies who make false statements about the affairs of corporations: see generally para.105.

[65]

The first relevant English case was R. v. Mallett[34]. A charge under s.17 of the English Act alleged the furnishing of a "document required for an accounting purpose", namely a hire purchase agreement which was false or misleading in a material particular in that it inaccurately described a named person as having been a director for eight years. The information was alleged to have been provided in a form sent to a hire purchase company with a view to gaining moneys from the company upon acceptance. In none of the reports I have read[35] is it made clear how the hire purchase document was used or intended to be used by the hire purchase company, although one might guess that the materials in the form were used to set out the basic accounting information in relation to the transaction. The primary and relevant point argued was that the false statement ought to have been one which was "material to an accounting purpose". After saying that earlier authorities were of little use, Roskill, L.J. for the Court of Appeal said that the material particulars did not have to be "directly connected with the accounting purpose of the document"[36]. His Lordship accepted that the document itself had to be made or required for an accounting purpose, but he said that the document in that case qualified in that respect and that "it has not been argued that this hire purchase agreement was not such a document".[37] It seems that once it had satisfied that test then, having regard to the language of the section, it could be shown to be false or deceptive in any material particular regardless of the relevance of that particular to the accounting processes of the business. It will be seen, therefore, that nothing decided in Mallett takes the present question any further, unless it be by reference to the undisputed assumption made as to the "requirement", which was not set out in detail sufficient to comprehend later. I have referred to the case in some detail only because it has from time to time been relied upon implicitly as showing that, in the case of a document such as a hire purchase agreement, the requirement for an accounting purpose need not be directly established. That was not what Mallett decided.[38]

[66]

The second English case decided on the section raised the matter squarely, on apparently very similar facts, but with evidence showing the connection between the documents and the relevant accounting records. In Attorney-General's Reference (No.1 of 1980)[39] a point of law was referred for the opinion of the Court of Appeal relating to the falsifying by the accused of householders personal loan proposal forms sent to a finance company to enable the borrowing of money to buy appliances which the accused was selling. The forms had a number of material inaccuracies and it had been alleged that the accused had acted dishonestly with a view to gain for himself moneys from the finance company. On this occasion, however, the case referred set out the connection between the forms and the finance company's records. Those forms, when received by the finance company, were used as input documents for the company's computer records. Not only was the information set out on the reverse of the forms used to make up those records, but the forms had blank spaces in which the company's staff made entries showing details of the loan, interest and other financial particulars relating to the loan, which was also retained and used to make the necessary entries in its accounting records held on the computer. The trial judge, who had directed an acquittal, appeared to have reached the conclusion that, until acceptance, the forms were merely "for use" in the accounting process and that, as there was no "duty to account", there had been no documents "made or required" for the relevant purpose. Lord Lane, C.J. speaking for the Court of Appeal said that this was clearly erroneous and that all that had to be shown was that the documents were made or required for the company's accounting purposes. The mere fact that the documents were "made" for purposes other than accounting purposes was no answer if the documents were "required for an accounting purpose as a subsidiary consideration".[40] Borrowers would undoubtedly wish the forms to be used for the purpose of having their loan proposals considered by the finance company, but nevertheless the documents might also be required by the company for its accounting purposes. Although the proposals might be rejected, nevertheless: "The purpose, or at any rate one of the purposes, of the figures on the reverse side of the form was in due course to provide the necessary information for the computer [accounting system]."[41]

[77]

The first of the cases, Osinuga v. DPP[53] the Court of Appeal purported to follow Attorney-General's Reference No. 1 of 1980 but on what, as it seems to me, was somewhat slender material. Although it is said[54] in the judgment that "there was no direct evidence which stated in terms that the housing benefit form was a document required for accounting purposes", there was, according to the case stated, evidence upon which the magistrates were entitled to come to the conclusion that it was in fact being "used" for such a purpose. The document in question, being a housing benefit application form, was clearly intended in the first place to persuade the local authority whether or not to grant the applicant a housing benefit, but it was also held that, if the authority came to that conclusion, the applicant's income had to be compared with his outgoings in order to calculate what he was entitled to receive, which was based on the material in the form. Thereby it seems to have been accepted that the form was required for the authority's accounting purposes in the sense of assisting in the relevant calculations, thought it is not clear precisely what evidence was given. The relevant inference may well have been clear and obvious to both magistrates and the Court of Appeal because of their familiarity with the system of housing benefits, but I will assume only that that knowledge was of a kind which enabled them to draw an appropriate inference to the standard required in a criminal proceeding. The argument addressed to the Court was that the purpose of the form was to determine whether the applicant was entitled to a benefit but that it did not have the purpose of enabling a calculation as to the applicant's benefits. The Court applied Attorney-General's Reference No. 1 of 1980 to find[55] that the claim form was in fact "serving a dual purpose" and that the calculation of the benefit done "by reference to the form which was submitted" showed that the document was also required for a "subsidiary purpose", namely the housing authority's accounting purposes.

[79]

The next case, and the one, with great respect, seems best to expose the difficulties and false assumptions which may be made in cases such as the present, is R. v. Sundhers[58]. The appellant had been convicted of furnishing false information by producing a number of insurance claim forms said to be required for the accounting purposes of the insurance companies to whom they were sent. The difficulty was that, although the judge left the issue as to whether the forms had been required for an accounting purpose to the jury, there was little or no evidence upon which they might act to reach that conclusion, unless they were entitled to assume from the very nature of the document that that could be one of its purposes. There was, as the Court noted, no evidence before the jury from representatives of the insurance company or otherwise other than the fact that the claim forms would be retained by the company but without describing the purpose of their retention; nor was there any expert evidence as to the use of claim forms, even if that could have been given in the absence of the factual foundation for it. The recorder had directed the jury that they might take account of the fact that the form and its contents formed part of the basis for assessing the appellant's loss. Moreover he had suggested that, if auditors or the like needed some evidence as to why payments had been made, the claim form would be an important part of the material supporting the payment. That was likewise the basis for prosecuting counsel's contention before the Court of Appeal and he drew particular attention to provisions in the Companies Act (U.K.) relating to the keeping of accounting records. Counsel had conceded that the claim forms were not part of the company's records for that purpose and could not be assumed to be part thereof. He said, however, that it could be assumed by the jury that the material was such as would form the basis of some of those records, so that the jury could assume that the forms were required for the purpose of making up the company's books.

[86]

Two later cases fell on the other side of the line. The first was R. v. Sampson[65]. In this case the accused were charged with producing a document required for an accounting purpose in that they completed a mortgage application form which was false in a material particular and forwarded it to a building society in order to obtain a loan on a house. The form required a good deal of information to be provided including the applicants' income. In the course of evidence it appeared that the forms were first considered by those responsible for granting the applications and that they were then sent for processing. It seems that when the document was processed a number of figures were worked out, at least in part from the form. Then the relevant witness agreed with this proposition put by way of question: "That [i.e. the processing] is done at Harlow so that presumably the application and the supporting documents that you sent to Harlow become part of their accounting process?" Unfortunately the trial judge misunderstood some of the evidence, so that he had directed the jury along lines that certain other material on the form was relevant to determining whether it was required for an accounting purpose. That material was only relevant to whether the loan should be granted or not. The Court also criticised a passage in which the judge had in effect speculated that the material on the form might have been referred to by the auditors in auditing the society's books. As was said by Evans, L.J. for the Court of Appeal[66]: "The question was not what auditors might or might not have wanted to see, but what answers they might or might not have been given to whatever questions they asked: the question was for what purpose or purposes was this document required by the building society?" After further criticising the judge for giving what was in effect a direction of law to the jury as to the conclusion properly to be drawn, his Lordship concluded that the directions were clearly unsatisfactory. His Lordship then turned to whether the conviction was safe or not. As to that, however, he said only this, that[67]: "We have already expressed the view that it is impossible to argue ... that this document is anything other than a document required for an accounting purpose." Although the document was used to determine whether a loan should be made, "it is equally clear that the document was forwarded to Harlow, where the relevant information was part of its accounting processes."[68] This seems[69] to have been based on the fact that the material on the form was required by the society for the purpose of assessing the amount of the loan and the appropriate rate of interest, which in part depended upon the answers given on the form. I would infer that those matters were seen to be essentially "accounting purposes". The appeal against conviction was therefore dismissed.

[93]

Secondly, and this largely follows from the last observation, a conclusion as to what are "accounting purposes" of a particular business involves both a factual issue, as to what that business does by way of keeping, maintaining and preparing its accounts, and also a purposive issue, which requires rather a consideration of the kind of information used and therefore needed for the keeping of those accounts. Some cases may be very obvious, others such as, I venture to say, the present, contain a number of hidden difficulties. Moreover what may seem relatively clear when one is talking about a document setting out figures and financial details may be far from obvious when the document, such as the present, does not even condescend to any detail recorded or likely to be recorded in any part of a business's books of account. In those circumstances one would expect evidence both of their connection with the relevant accounts and also as to their requirement for that purpose. Connection may be sufficient, inasmuch as identification of the relevant information in the document and the manner and reason for its entry into the particular accounting records of the business may show that it could not be argued that they were not so required, within the meaning of the section. On other occasions the bare facts as to the use of particular information may not in itself establish the relevant requirement, so that expert evidence may be called for in order to show why the particular business needed the information for its accounting purposes. I might mention the possible example, which so far I believe has not yet been directly raised in the authorities, of information in books of accounts or other accounting records which may be derived from one of a number of sources. The fact that a document, which is the subject of a charge, contains financial or other factual details which appear in the accounts may not be so important if the same information could be obtained from other sources. In consequence it would be important to show by evidence why the business "required" the information to appear in the relevant document or, more specifically, why it needed for its accounting purposes the particular document made the subject of the charge.

[95]

suggest to me, if I may say so, that in a number of the English cases, especially Osinuga and Sampson, the Court has been too willing to accept that a jury (or lay magistrates) could easily find that a document containing a few apparently relevant figures should lead to an inference on the criminal standard that the document in which they were to be found was "required" for the business's accounting purposes. One may accept, as laid down in Attorney-General's Reference No. 1 of 1980, that the purpose may be only a subsidiary purpose, but the section is still primarily concerned with the falsification of accounts and the wrongful use of accounts which have been falsified. It is only if the requirement for accounting purposes is sufficiently clear that one can conclude that there has been an unlawful falsification, production or use of such a record or document, within the meaning of the section. It was never the section's purpose to strike at the falsification, production or use of documents which only had an unintended or chance connection with a business's accounting records. There are now, after all, several other charges of deceptive conduct or the like which can be laid where there has been a fraudulent representation. One may therefore contrast the detailed evidence described in Attorney-General's Reference No. 1 of 1980 with the casual pieces of information which were held so easily to support such an inference in Osinuga and Sampson. The latter cases could only be justified on the basis that there was no miscarriage because, on a retrial, the specific error could easily be overcome. That omits, however, the consideration that a retrial usually should only be ordered if essentially the same evidentiary material would lead to a conviction; it ought not to be ordered if it would enable the prosecution to call further evidence which it failed to call at the original trial, certainly if that evidence is more than some minute item of the most technical kind: see e.g. Director of Public Prosecutions (Nauru) v. Fowler[77]; King v. The Queen[78] and R. v. Ryan[79]. For myself I would also doubt, notwithstanding the strength of the factual case there made out, the proposition in Attorney-General's Reference No. 1 of 1980, answered in the affirmative, which was expressed favourably in terms of a document "which they use in their accounting process". Indeed the Court's proviso that their conclusion might not apply to a "materially different" form or other document suggests some caution in the Court's thinking.[80] The "use" in each case must be such as to show that the document was "required" for the statutory purpose. I add that nothing I here say appears to be inconsistent with what Tadgell, J. said in Holt, for his two propositions, taken from the earlier two English authorities, need not be doubted in themselves, and the prosecution case there relied on documents with accounting details which the accused had specifically asked his client to compare with his own records.

[110]

For the reasons stated by Charles, J.A. and O'Bryan, A.J.A. in their judgments I consider that there was evidence sufficient to found the verdicts of obtaining the alleged financial advantages by deception and that ground 3 has not been made out. One may accept that in the ordinary course of a prosecution under s.82 of the Act it will be necessary to prove that a person has been deceived in order that the accused might dishonestly obtain a financial advantage. But in my opinion it is equally clear that an accused cannot rely, where the property is obtained from a company or friendly society, upon the consent or acquiescence of a person authorised by the company or society to decide on the giving of the financial advantage, if that person is complicit in the dishonesty: cf. DPP v. Gomez[84]. For the present I am not concerned to discuss cases where all the directors, all the shareholders or all the society members have agreed upon a fraudulent scheme such as was discussed in R. v. Roffel[85], with which may be compared R. v. Clarkson and Lyon[86], a decision relating to a building society. The deceptions in the present case were practised upon the building society as a whole and the fact that Mr Robinson may not have been deceived cannot result in the exculpation of the applicant. Even if the responsibility for deciding to grant the advances or other facilities was placed by the Society's Board in the hands of Mr Robinson, the provision of those facilities was an act of the Society in each case, which must have been deceived by the applicant's fraudulent provision of false or grossly exaggerated valuations. That is apparent from the evidence of those otherwise responsible in the Society for carrying Mr Robinson's decisions into effect, such as Mr Faithfull, albeit that the latter had a lesser position in the Society's hierarchy. If he had become aware of any of the frauds, there is no way that the advances or facilities would have been granted. In my opinion there could be no other inference but that the Society was relevantly deceived on each occasion and there was no need to call Mr Robinson, even if it be thought highly unlikely that he would say that he had been deceived on any occasion. Over $200m. worth of advances and facilities were agreed to in this way and it beggars belief that in the circumstances anybody could have been properly authorised to grant these advances and facilities or that anyone might believe that that was so.

[132]

"1. A miscarriage of justice resulted from the failure of the trial judge to give an accomplice direction or warning, or any other sufficient direction or warning with respect to the evidence of Tibor Jeno Verebes. 2(a) The verdicts of guilty on each count of furnishing false information (counts 1, 4, 6, 11 and 12) are unsafe and unsatisfactory; and in particular there was no evidence sufficient to found the verdicts that the respective valuation reports of Tibor Jeno Verebes referred to in each count were documents required for an accounting purpose. 1 2(b) The trial judge erred in his directions to the jury concerning the elements of the offence of furnishing false information (counts 1, 4, 6, 11 and 12); and in particular - (i) he failed to direct that the respective valuation reports of Tibor Jeno Verebes referred to in each count were incapable of being regarded as documents required for an accounting purpose; (ii) he failed to direct that only documents specifically required for the keeping of accounts might be regarded as being documents required for an accounting purpose. 3(a) The verdicts of guilty on each count of obtaining financial advantage by deception (counts 2, 5, 7, 13 and 14) are unsafe and unsatisfactory; and in particular, there was no evidence sufficient to found the verdicts that the financial advantage in each count was obtained by deception, in the sense that there was no evidence of a causal connection between the alleged deception and the obtaining of the financial advantage. 3(b) The trial judge erred in his directions to the jury concerning the elements of obtaining financial advantage by deception; and in particular - (i) he failed to direct sufficiently or at all that a causal link was required between the alleged deception and the obtaining; (ii) he wrongly directed that 'dishonestly' means that the applicant 'knew he had no legal right' to obtain the financial advantage. 4. The trial judge erred in his directions to the jury concerning the separate consideration of each count; and in particular - (i) he failed to isolate sufficiently or at all the evidence which was admissible, and that which was inadmissible, on each count; (ii) he failed to direct the jury that they ought not reason from a finding of guilt on one count that the applicant was the type of person likely to have committed the offence charged in another or others. 5. An aggregate of the errors referred to in grounds 1 to 4 caused the trial to miscarry."

[300]

SCHEDULE 3 GUILTY VERDICT COUNTS SUMMARY

Section 83(1)(b) Crimes Act 1958 - False accounting (1) Where a person dishonestly, with a view to gain for himself or another or with intent to cause loss to another - (a) destroys, defaces, conceals or falsifies any account or any record or document made or required for any accounting purpose; or (b) in furnishing information for any purpose produces or makes use of any account, or any such record or document as aforesaid, which to his knowledge is or may be misleading, false or deceptive in a material particular - he is guilty of an indictable offence etc. Count 1. Information furnished to O.S.T. on or about 4 May 1988 for the purpose of a loan from O.S.T. in the sum of $4.1 million on a property known as Glen Crag, Brisbane, in the form of a valuation report dated 29 April 1988. Count 4. Information furnished to O.S.T. on or about 26 August 1988 for the purpose of a loan from O.S.T. in the sum of $3.8 million on a property known as High Street, Southport, in the form of a valuation report dated 29 July 1988. Count 6. Information furnished to O.S.T. on or about 9 December 1988 for the purpose of a loan from O.S.T. in the sum of $4.5 million on a property known as Ashmore Commercial Centre in the form of a valuation report dated 22 November 1988. Count 11. Information furnished to O.S.T. on or about 1 May 1989 for the purpose of a guarantee facility from O.S.T. in the sum of $135 million on a property known as Dreamworld Theme Park in the form of a valuation report dated 10 April 1989. Count 12. Information furnished to O.S.T. on or about 11 May 1989 for the purpose of an application for an advance in the sum of $2.61 million from O.S.T. on a property known as High Street, Southport in the form of a valuation updated dated 11 May 1989. These five counts may be described elsewhere as "Furnishing False Information". Section 82 Obtaining financial advantage by deception (1) 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). (2) For purposes of this section "deception" has the same meaning as in section 81. Section 81(4) 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; Count 2. On 9 May 1988 dishonestly obtained a financial advantage in the form of a credit facility in the sum of $4.2 million by deception by false representations in respect of the Glen Crag building. Count 5. On 29 August 1988 dishonestly obtained a financial advantage in the form of the creation of a credit facility in the sum of $3.8 million by deception by false representations in respect of the High Street, Southport building. Count 7. On 15 December 1988 dishonestly obtained a financial advantage in the form of the creation of a credit facility in the sum of $4.5 million by deception by false representations in respect of the Ashmore Commercial Centre. Count 13. On or about 12 May 1989 dishonestly obtained a financial advantage in the form of the creation of a further credit facility in the sum of $2.61 million by deception by false representations in respect of the High Street Southport building. Count 14. On or about 21 August 1989 dishonestly obtained a financial advantage in the form of the creation of a credit facility in the sum of $54 million and a guarantee facility in the sum of $96 million by deception by false representations in respect of Dreamworld Theme Park and Great Adventures Portfolio. These five counts may be described elsewhere as "Obtaining Financial Advantage by Deception." Friendly Societies Act 1986 "Valuation of land. 68. Before a friendly society makes an advance on the security of a mortgage over land, a valuation of the land must be obtained from a registered valuer who is not a director or officer of the friendly society, or of a subsidiary of the friendly society, and who is engaged independently of the owner of the land. Limit on amount of advance 69. (1) A friendly society must not lend on the security of a mortgage over land if the total of the value of the advance and any amount secured by any prior mortgages exceeds - (a) 75% of the value of the land, if there is erected on it, or proposed to be erected on it, a house that is to be occupied by the borrower; or (b) 662/3% of the value of the land in any other case."