R v Lo Presti [2005] VSCA 259

1 In this application I have had the advantage of reading the reasons for judgment to be delivered by Buchanan, J.A. I agree in his conclusions and in his reasoning, but I would wish to express my own reasoning as to the disposition of two grounds, 8(a) and (b) and 10, as to the latter of which leave to amend should be granted and the ground upheld.

2 The gist of the particular problem arose in the course of argument, although it had a bearing on the answer to ground 8 which in the relevant paragraphs complained (under para.(a)) of inadequate directions to the jury on the elements of the offences (and the relation of that law to the evidence), as well as, under para.(b), a complaint that the judge had failed adequately to state the law on recklessness in the context of counts of obtaining financial advantage (or property) by deception. The Court did not directly grant leave to add a new ground 10, but it said that it would await the content of the ground and the arguments put on each side before concluding whether leave should be granted. The proposed ground now asserts that in relation to four particulars in count 1 and three particulars in each of counts 2 and 3 there was a miscarriage of justice in that each of those particulars "contain no words or conduct as to existing fact or as to law, or as to the then present intention of any person". Whether the form of particular is common or not, a similar form of plea, viz. "would be applied ...", is proffered in Freckelton: Indictable Offences in Victoria[1], although later it is suggested that "it may be advisable" to insert words such as "that he or she then intended" before the relevant allegation.[2] In the present case each of the relevant paragraphs alleged (with one exception) that the applicant deceived several victims by falsely representing that a sum of money "would be lent", that the loan "would be secured", that a mortgage "would in fact be registered" etc., thereby leading to his dishonestly obtaining from his several victims stated financial advantages. In each case there seems little doubt that some such statement was made by the applicant to his victim but that in various ways his statements were not fulfilled in that the moneys were not lent, the loans were not secured or the mortgages were not registered (etc.) at an appropriate time or at all, so leading to the victim's later inability to recover the moneys from the applicant. In each count the alleged representations formed about 30 to 40% or thereabouts of the various false representations said to have been made by the applicant. The other representations were of a straightforward kind, one in each count as to his real name, likewise as to his conducting a business in the name of "24 Hour Conveyancing Co." (seemingly owned by his wife), that he was a barrister and solicitor, that he was legally entitled to do conveyancing or legal work and that he had professional indemnity insurance. Although there seems relatively little doubt that he made most of those representations to each of his victims, it was by no means so clear that the particular misrepresentations induced the victim to provide the relevant financial advantage to the applicant. For example, in the case of the first two counts the victim had no real understanding of the nature of professional indemnity insurance and it seemed thereby unlikely that she was induced in that way to act as alleged.

3 To my way of thinking, however, the gist of the complaint under each count was that the victim was induced to allow the applicant to deal with her money in a way which allowed it to be held unsecured in a personal bank or other account of the applicant which was never the subject of any security and in respect of which no mortgage was granted at any time by any person. As the case was conducted, it might likewise be thought that the jury would perceive the applicant as a rogue because he blandly made these many promises, none of which were ever fulfilled, nor did it seem likely that they would be fulfilled. Whatever particulars the jury settled upon to allow them to be satisfied to bring in verdicts of guilty on the first three counts, it seems, although the judge directed them entirely correctly as to the degree of agreement required for each particular, that there was a distinct likelihood that the unfulfilled promises would have formed the basis, at least in part, of each of the verdicts. Certainly it cannot be shown that they relied on the uncontentious particulars. Moreover, one must note that, although in some respects the case appeared a strong one, if there be no objection to the course I have so far described, the jury were sufficiently alive to their duties to bring in a verdict of not guilty on a fourth count which alleged obtaining property by deception in not entirely different circumstances.

4 Consequently, it might be said that there was at least a possibility that the jury brought in their verdicts on the basis that the applicant had falsely promised to do a number of things which clearly he did not carry out and which led to significant loss to the victims. Thereby is thrown up a problem which has dogged the criminal law relating to obtaining by false pretences or deception or the like for two centuries. There can be no doubt that to deceive a victim by false representation as to an existing or past fact so as to cause the victim loss (especially monetary loss) has been part of the statutory armoury of the criminal law from at least the time of George II: see 30 Geo. II, c.24.[3] It seems to have been held from an early time that under the then current statutory provision "there must be a false pretence of a present or past fact and that a promissory pretence to do some act is not within the statute": see R. v. Giles[4]. There seems to have been some attempt at an early stage to bring within that accepted principle allegations based upon an express or implied intention on the part of the accused to do something in the future, but that attempt under the existing statutory law was firmly rebutted in a series of cases which have been carefully explained by Dixon, J. in Greene v. The King[5]. So the law remained until its more recent reformulation as a result of the passing in England of the Theft Act 1968 and the amendments to the Crimes Act 1958 in this State to like effect in 1973: see especially the report of the English Criminal Law Revision Committee: "Theft and Related Offences"[6] and the report of the Chief Justice's Law Reform Committee - Sub-Committee on Theft, which reported on 8 February 1971. The relevant sections, as passed in each jurisdiction and as recommended by each committee, were not entirely identical, but the definition of "deception" was the same, as follows[7].

"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 ...".[8]

5 For present purposes the critical expression included in the definition was the addition of a deception "as to the present intentions" of the person seeking to obtain the property or the financial advantage in question. There was therefore, apparently, no attempt to comprehend within the legislative scheme representations as to the future for, by definition, they cannot amount to deceptions as to a "fact", which must be a past or present act or circumstance. A statement as to what will occur in the future cannot, in my opinion, amount to a "fact" for, until the stated events occur, or more likely fail to occur, there is no relevant fact and what is alleged is a misprediction as to future facts.[9]

6 Doubtless those considering the reform of the law relating to obtaining by false pretences, as this form of cheating was previously known under its earlier, more limited definition, concern was expressed that false promises could be made with impunity under the law as it then stood, several other cognate offences being likewise thought inadequate for the purpose. Nevertheless, as I would understand at least the English committee's report, there was no desire to comprehend deceptions as to future facts (and so the definition did not cover them), but a somewhat different concern, namely that most promises by rogues carried with them implicitly a statement that it was their intention to bring about the predicted event. Thus, not many years before the report was undertaken, a powerful Court of Criminal Appeal in R. v. Dent[10] had accepted relevant criminal authority to the effect that a state of intention about future conduct could not amount to a false pretence under the legislation then in effect.[11] On the other hand it seems clear from the reasoning of the Court expressed by Devlin, J. that, if it were freed from that authority, it would take a broad view as to the nature of promises and intentions, as follows[12]:

"We are unable for the purposes of this principle to distinguish between a promise and a statement of intention. Every promise by a person as to his future conduct implies a statement of intention about it, though not every statement of intention amounts to a promise ... No distinction can be drawn for this purpose between 'I will do it' and 'I intend to do it'."

Because the legislation in England was superseded by the Theft Act, there is very little subsequent authority on what was intended by the Court in Dent, although its analysis was cited with approval by the West Australian Full Court in Caratti v. R.[13] Those responsible for the Victorian report seemed to think, perhaps in the light of Lord Devlin's comments, that the new definition of deception included "false promises"[14]. But the commentators are divided as to the precise interpretation to be given. In effect it appears to have been understood that by comprehending deception as to the "present intentions" of an accused, almost every fraudulent promise can be made the subject of a charge. As has been pointed out on many occasions, it is unlikely that a rogue will explicitly state that he or she has an "intention", as such, to do anything, and it will be left to inference, more often than not incontrovertible inference, that the promised act involves that the rogue implies that he or she intends to do what is promised.

7 Nevertheless, whatever may have occurred in the past, it seems preferable as a matter of practice that the count and the relevant particulars should refer[15] to an intention implied from the circumstances, for it is only that present intention which has been added (in effect) to the definition of deception.

8 In the present case it would not be difficult to see and thus to infer that, when promising that various loans would be secured and mortgages taken out, it was the applicant's present intention to bring those events about and that indeed he relied on that understanding to persuade the victims to let him deal with their property. (Of course, that conclusion cannot be assumed, as the jury was not directed as to the need to make any such finding.) It would be unsatisfactory, however, if the courts were to endorse, if only by acquiescence, the charging of persons for obtaining by deception when the deceit consists only or primarily of promises as to the future which are alleged to have been unfulfilled. It is not the function of the criminal law to enforce contractual promises and to put people in prison for their failure to perform those contracts, whatever may have been the position in the days before offences of this kind were introduced when debtors were frequently committed to prison under the civil law for such failures.[16] Actual falsity must be shown if the element as to deception is to be made out. The deception must be as to a "fact" (though deceptions as to law are now permitted) and criminal liability cannot exist unless it is an existing fact which is the subject of a promise or representation, but that does not mean in the majority of cases that a promise cannot fairly be treated and pleaded as a representation of an existing intention to carry out the relevant promise.

9 In the present application I would concede that the case might have been conducted and the judge might have directed the jury upon the basis that each of those particulars to which objection has been taken and which refer variously to statements as to what "would" happen in the future, e.g. that a sum would be lent, that a loan would be secured, that a mortgage would be registered etc., as if the allegations were that the applicant presently intended that the sum would be lent, that the loan would be secured etc., and that the false representations consisted in his having no such intention at the time each representation was made to the victim. It is not necessary to express a final conclusion as to whether a trial could be so conducted, but ordinarily, if the issues are made clear and the jury is properly instructed, variances of that kind might be ignored. The difficulty is that the trial was not approached in that way either in the way in which it was opened to the jury or in the way the learned judge summed up the case and directed the jury. In many ways his Honour's charge was excellent: it was concise, it stated the law clearly, it squarely raised the issues which the jury had to decide and it said sufficient about the evidence and, as to the arguments on each side, he reminded the jury how it should go about its task. Where the charge failed, however, was in that it did not direct the jury to the problems I have discussed. This was not surprising, since they were not raised by either party and his Honour had a difficult enough job bearing in mind that he had a former practitioner as the accused whose knowledge of the criminal law was not manifest, making the judge's task all the harder. Moreover, the form in which the counts were pleaded, in particular by using the word "would", seems to have been blessed, at least in part, in the relevant description in Freckleton.

10 Nevertheless there was a real risk of injustice in the way the manner was allowed to go to the jury. Most of the specific allegations of false representations as to existing fact were not ones which necessarily were likely to induce the victims or, more importantly, to be seen by the jury as likely to induce the victims, to permit their moneys to be dealt with by the applicant in the way that he did. One knows from the applicant's by no means concise cross-examination that one victim had an almost complete misunderstanding of the nature of the relevant insurance and thus seems most unlikely to have been affected by its absence. Moreover the critical allegation, or set of allegations, in each set of particulars was that which dealt with what the applicant said he would do with the victims' moneys and the security he said he would provide in the future for the victims. Since no promised transaction was carried out, it would have been easy for the jury to say, in effect, that what in

each case had been promised had not been fulfilled and that, therefore, there had been a false representation of the matters as to which these promises had been made. Without further and more detailed judicial instruction, the failure to perform each promise might have been seen by the jury to be the simple way in which the falsity of each alleged representation was made out, thus leading to the deception of each of the victims. A bare broken promise, without more, might thereby have led, wrongly, to a verdict of guilt.

11 What the learned judge said to the jury, however was not an acceptable analysis under the relevant definition of "deception" for the purpose of the particulars about which complaint is now made.[17] The question remains, in my opinion, in each charge under s.82, where promissory statements were relied upon in evidence, as to whether by inference one can conclude without reasonable doubt that the accused was stating his current intention to carry out each relevant promise and, secondly, as to whether in each case at the time the representation was made and acted upon, the accused had no such present current intention, and that the jury must have so concluded. The non-fulfilment of the promises was merely evidence to show that the applicant had no existing intention, in order to show that he had in fact made a false representation as to a fact, namely his present intention. It could only be if the jury were properly directed as to those steps in their possible reasoning that the verdict could be considered as safe. For reasons which are apparent, that was not the course adopted, the vice in the particulars remained, the judge did not properly direct the jury accordingly, and, since one cannot be certain which representations were relied upon by the jury, the verdicts cannot stand and there must be a new trial.

12 The applicant was arraigned in the County Court and pleaded not guilty to a

presentment containing three counts of obtaining a financial advantage by deception, contrary to s.82 of the Crimes Act 1958, and one count of obtaining property by deception, contrary to s.81 of the Act. At the conclusion of the trial, at which the applicant represented himself, the jury returned verdicts of guilty on the counts of obtaining a financial advantage by deception and acquitted the applicant on the count of obtaining property by deception. After a plea the applicant was sentenced to be imprisoned for two years on each count. Twelve months of the sentence on one count was cumulated upon the sentence on another count, producing a total effective sentence of three years' imprisonment. The sentencing judge suspended 16 months of the sentence for a period of three years.

13 The applicant seeks leave to appeal against the conviction.

14 The applicant, who is now 56 years old, practised as a solicitor until June 1993 when his name was removed from the roll of barristers and solicitors. On 14 April 1999 the Legal Profession Tribunal ordered that the applicant "not be employed or engaged in connection with legal practice or conveyancing" until 2013.

15 The offences on which the applicant was convicted arose from the engagement of the applicant to perform conveyancing services by two persons from whom the applicant was alleged to have obtained financial advantages.

16 Counts 1 and 2 concerned dealings between the applicant and a Ms Ariston. In her evidence Ms Ariston said that in 1998 she contacted 24 Hour Conveyancing Company. She spoke to the applicant, who used the name Joseph Lowe and told Ms Ariston that he was a barrister and solicitor. Ms Ariston engaged the applicant to draw up a contract for the sale of her house in Airport West. In April 1999 the house was sold at a price of $144,000. A deposit of $14,400 was paid by the purchasers to 24 Hour Conveyancing Company. A further sum of $20,000 from the balance of the purchase price was paid to 24 Hour Conveyancing Company, which accordingly held some $34,400 on behalf of Ms Ariston.

17 Ms Ariston gave evidence that the applicant asked her if she wanted to invest money from the sale of her house and said that the investment would be secured by a mortgage for a term of six months with interest at 10% per annum. The applicant prepared an instrument of mortgage, which was dated 1 October 1999, identified John Joseph Drummond as the mortgagee and specified the loan as $30,000. Some years before the applicant had registered his name as John Joseph Drummond. The applicant told Ms Ariston that Drummond was a friend of his and was someone he trusted and to whom he had previously lent money. The applicant said that he would register the mortgage with the Office of Titles after Drummond had signed it. The advance of the sum of $30,000 was the subject matter of count 1.

18 Before the period of the loan expired, the applicant contacted Ms Ariston and asked her if she wanted to reinvest the money. Ms Ariston told the applicant that she was happy to reinvest the money if she could obtain it at short notice. Ms Ariston said that she believed that the loan to Drummond would be extended and that the mortgage would remain in place to secure repayment of the extended loan. Ms Ariston found a new house and signed a contract to purchase it. She retained the applicant to act on her behalf in relation to the purchase of the new property. The settlement was due to occur on 17 November 2000. Ms Ariston was assured by the applicant that he would organize the settlement. The settlement did not proceed and the applicant told Ms Ariston that it would be a week before Drummond could find the money. Ms Ariston searched the title shown on the mortgage. The search did not disclose that her mortgage had been registered, but other mortgages were registered. The loan has never been repaid. The continuation of the loan was the financial advantage the subject matter of count 2.

19 Count 3 related to dealings between the applicant and Wendy Charles. In 1999 Ms Charles engaged the applicant to act as her solicitor in respect of the sale of her house in Footscray. The house was sold and a deposit was paid to the estate agent. In her evidence Ms Charles said that the applicant told her that the deposit was to go to him and was to be paid into a trust account so that it would be safe until settlement. He said the money would be placed in the 24 Hour Conveyancing Company trust account, where nobody could touch it. The applicant said that he had indemnity insurance. At the request of Ms Charles the agent sent to 24 Hour Conveyancing Company a cheque for the deposit made out to the 24 Hour Conveyancing Company trust account. Payment of the cheque was the financial advantage the subject matter of the count. The cheque was deposited in the ordinary business account of 24 Hour Conveyancing Company. On 1 September 2000, when settlement of the purchase was to take place, the applicant could not account to Ms Charles for the deposit money. The applicant made various statements as to what had happened to the money. Ms Charles has not recovered any part of it.

20 The first two grounds of the application complained that the counts in the presentment were duplicitous or latently duplicitous.

21 Each count alleged that the applicant obtained a specified financial advantage by a series of false representations. Thus count 1 alleged that the applicant dishonestly obtained from Ms Ariston the financial advantage of retention of the sum of $30,000 by falsely representing:

(b) that he conducted a business by the name of 24 Hour Conveyancing Co.,

(c) that he was a barrister and solicitor,

(d) that he was legally entitled to do conveyancing and/or legal work in the State of Victoria,

(e) that the said 24 Hour Conveyancing Co. had professional indemnity insurance,

(f) that the said sum of $30,000.00 would be lent to one John Joseph Drummond for a period of 6 months and interest would be paid at the rate of 10% per annum payable monthly in arrears,

(g) that such loan would be secured by a mortgage over land contained in Certificates of Title Volume 10352 Folios 226 to 235 inclusive.

(h) that a mortgage presented to Esther Billie Ariston by Joseph Francis Lo Presti for signature by the said Esther Billie Ariston as mortgagee to purportedly secure the loan had been properly and legally executed by the said John Joseph Drummond as mortgagor,

(i) that such mortgage was in a form suitable and adequate to enable it to be registered over the said certificates of titles at the office of the Registrar of Titles,

(j) that such mortgage would in fact be registered over such certificates of title in the office of the Registrar of Titles subsequent to it being signed by the said Esther Billie Ariston."

22 If there was duplicity in this case, the duplicity was patent. The applicant contended that each false statement constituted a separate offence, and it was clear on the face of the presentment that included in each count were a number of false statements.

23 Counsel for the applicant submitted that the case was indistinguishable from R. v. Giam.[18] In that case the accused was charged with six counts alleging offences under s.178BB of the Crimes Act 1900 (N.S.W.). The section provided:

"Whosoever with intent to obtain for himself or herself or another person any money or valuable thing or any financial advantage of any kind whatsoever, makes or publishes, or concurs in making or publishing, any statement (whether or not in writing) which he or she knows to be false or misleading in a material particular or which is false or misleading in a material particular and is made with reckless disregard to whether it is true or false or misleading in a material particular shall be liable to imprisonment for five years."

Each count alleged that the accused had made three separate false statements. The Court of Criminal Appeal held that the charges were duplicitous, for each false statement constituted a separate offence. The Court rejected the contention that in this provision the singular included the plural, so that "statement" should be understood to mean "statements".

24 Whether the presentment in the present case was duplicitous depends upon the construction of s.82(1) of the Crimes Act 1968, which provides:

"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)."

Sub-section (2) provides that the word "deception" is to have the same meaning as in s.81. Section 81(4) provides:

"(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; and

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

(i) a computer system; or

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

to make a response that the person doing or omitting to do the actual thing is not authorized to cause the computer system or machine to make."

The question turns upon whether the section creates a separate offence for each financial advantage or for each deception.

25 In my opinion s.82(1) fastens upon obtaining a financial advantage as the gist of the offence where the advantage is obtained by deception. Once a financial advantage is obtained by the proscribed means, the offence is complete. The deception by which that result is achieved may be constituted by one or a number of false statements. The word "deception" is apt to cover a course of conduct. I do not think that the definition of deception discloses a contrary intention which displaces s.37(c) of the Interpretation of Legislation Act 1984, which provides that, unless a contrary intention appears, in an Act words in the singular include the plural.

26 The section is comparable to s.121(1)(a) of the Workers Rehabilitation and Compensation Act 1986 (SA), which provided that a person who "obtains by dishonest means any payment or other benefit under this Act" was guilty of an offence. The section was considered in Walsh v. Tattersall[19]. Gaudron and Gummow, JJ. said:

"Section 121(1)(a) fixes upon the obtaining of a payment or other benefit under the statute, where that payment or benefit was obtained 'by dishonest means'. In a particular instance, the dishonest means by which this result is achieved may comprise a number of untrue statements or wilful nondisclosures, identified as a course of conduct extending over a period. But, once a payment or benefit is first so obtained an offence then has been completed."[20]

The statutory provision considered in Giam, on the other hand, placed the false statement at the forefront by providing that making a statement knowing it to be false or reckless as to its falsity was an offence if it was made with intent to obtain money, valuable thing or financial advantage. Section 178BA of the New South Wales Act, not s.178BB, is the equivalent of s.82(1) of the Victorian Act.[21]

27 The next ground of appeal argued on behalf of the applicant concerned two records of interview of the applicant. The first was conducted on 9 April 2001 and the second on 11 October 2001. It was submitted that the record of interview conducted on 9 April 2001 should have been excluded because the police officers who interviewed the applicant failed to comply with the provisions of s.464A(2)(a) of the Crimes Act, which provides that if a person suspected of having committed an offence is in custody for that offence, an investigating official may inform the person of the circumstances of that offence and question the person in order to determine the involvement of the person in that offence. Counsel for the applicant referred to one question in the record of interview and submitted that the interviewing officers failed to inform the applicant of the circumstances of the offence and accordingly the record of interview should have been excluded in the exercise of the trial judge's discretion. The applicant was asked:

"As stated before, Joseph, just got some questions in relation to some dealings with the business known as 24 Hour Conveyancing Company."

28 The question is not to be viewed in isolation. It was preceded by this question:

"Joseph I intend to interview you in relation to the offence of obtaining property by deception, conducting a conveyancing business when barred from doing so."

The interviewer proceeded to question the applicant as to his dealings with each of the complainants. In my view the applicant was given sufficient information about the facts and circumstances of the offence to enable him both to understand what he was to be asked about and also to make an informed decision concerning his rights such as the right to silence and the right to communicate with a friend, relative or lawyer. The interviewer was not also required to nominate the offence by reference to its legal qualification.[22]

29 Counsel for the applicant submitted that a large part of the interview concerned proceedings which were not relevant to the offences save for the existence of a debt. In my view the questions following the introduction by the applicant of the topic of a civil action in substance were directed to the acts constituting the offences with which the applicant was charged.

30 The applicant next complained that 12 questions in the same record of interview should have been excluded as they had no, or little probative value and were prejudicial to the defence. I do not consider that the impugned questions were particularly damaging; their inclusion in a record of interview consisting of 173 questions and answers did not constitute a miscarriage of justice. At all events the applicant has not demonstrated that the trial judge committed any identifiable error in exercising his discretion in respect of the questions and answers and it does not appear that their admission was unreasonable or plainly unjust.[23]

31 The record of interview made on 11 October 2001 contained a number of questions which amounted to cross-examination. Most of those questions were excised by the trial judge. It is now contended that the trial judge should have held a voir dire to determine whether the record of interview should have been wholly excluded. At trial the applicant sought a voir dire, but only after the record of interview had been edited and tendered. The trial judge refused the application, saying:

"The acceptance of the accused's present submission would involve the discharge of the jury. I do not consider that there is a need to do so."

In my view his Honour was clearly correct.

32 The applicant also submitted that, if the record of interview was not to be excluded altogether, the applicant should have been allowed to tender the answers which had been excluded, for they showed disbelief on the part of the interviewing police officers of the truth of the applicant's answers. The applicant sought at trial to tender certain of the excluded questions and answers, but his application was refused. As the trial judge himself noted, in the course of ruling against an application that the records of interview should not be admitted in evidence, the applicant cross-examined the informant at some length to show that those questioning the applicant did not believe what he was saying. I do not think the complaint has been made out.

33 The next ground argued on behalf of the applicant was that the trial judge erred in his directions to the jury concerning recklessness on the part of the applicant.

34 The trial judge told the jury that it was an element of the offence that each lie was told deliberately "in the sense that the accused knew what he said was untrue or recklessly, in the sense that he knew it might be untrue and said it not caring whether it was true or false ...." Counsel for the applicant submitted that the trial judge erred in failing to direct the jury that the accused was not guilty unless he knew the statements were probably untrue. It was not sufficient that the applicant thought that the statements were possibly untrue, but this was conveyed by the use of the word "might". Counsel relied upon the decision of the High Court in R. v. Crabbe,[24] in which it was held that a person who performed an act knowing that it was probable that death or grievous bodily harm would result was guilty of murder if death in fact resulted. Knowledge of possibility was not enough.

35 In my view recklessness was not in issue in the present case. Each of the false statements[25] alleged to have been made by the applicant concerned matters within his own knowledge. It was not contended by the prosecutor that the applicant was reckless as to the truth of any of his statements, nor was it disputed by the applicant that he well knew the truth or falsity of each statement. The trial judge's direction as to recklessness was gratuitous: it could not have affected the outcome of the trial.

36 The trial judge spoke of recklessness only in terms of the applicant's knowledge of the truth or falsity of the statements he was alleged to have made. Counsel for the applicant submitted that the applicant would only be guilty if he foresaw that his victims would probably be deceived by the statements which he made, and the trial judge erred in failing to inform the jury of this requirement. That was to mistake the issue. As is generally the case in prosecutions for obtaining a financial advantage by deception, the only issue was whether the applicant intended his statements to operate on the minds of his victims. It was not alleged either primarily or in the alternative that the applicant was reckless as to whether that result would be achieved.

37 Another ground of the application was that the trial judge failed to adequately or properly put the defence case.

38 The complaint arose from the manner in which the trial judge dealt with the cases put by the prosecution and the defence. Instead of separately summarizing the arguments of counsel, his Honour dealt with the arguments advanced by the prosecutor and the applicant in the course of a discussion of the evidence. In my view this method of dealing with the issues did not disadvantage the applicant. The applicant did not give evidence and advanced no positive case. The basis of the defence was that the prosecution had not proved the elements of the offences to the requisite standard. The applicant's address to the jury was not arranged chronologically, nor did he deal separately with particular counts or transactions, but rather mounted particular arguments in random fashion. In my opinion the trial judge's assignment of the arguments to the evidence would have assisted the jury to understand the defence case.

39 The applicant sought leave to add the following as a ground of the application:

"A miscarriage of justice was occasioned by the

(a) inclusion in count 1 of each particular (f), (g), (i) and (j);

(b) inclusion into count 2 of each particular (f), (g) and (i);

(c) inclusion into count 3 of each particular (f), (h) and (i)

wherein each particular above contained no words or conduct as to existing fact or as to law, or as to the then present intention of any person."

40 Some of the false statements alleged to have been made by the applicant related to future events. Count 1 alleged representations that the sum of $30,000 would be lent to John Joseph Drummond for a period of six months and interest would be paid at the rate of 10% per annum, that the loan would be secured by a mortgage and that the mortgage would be registered in the Office of Titles. Allegations of like statements were included in the other counts. It was submitted on behalf of the applicant that the "fact" referred to in s.81(4)(a) was a past or present fact. The jury may have found in respect of a particular count that the financial advantage was obtained by the representations relating to future events.

41 No complaint about the form of the alleged false statements was made at trial. Neither the prosecutor nor the applicant saw the difficulty, and accordingly it was not submitted to the trial judge that he should instruct the jury that each statement as to a future event could only constitute a deception if it misstated the intention of the

applicant at the time the statement was made, so as to constitute a "deception as to the present intention of the person using the deception" and thus meet the requirements of the definition in s.81(4)(a). In the absence of such a direction it is possible that the jury found the applicant guilty simply because he made promises or predictions as to the future which turned out to be false. Although the presentment contained allegations of other, unexceptionable statements of past or present facts, I consider that the risk that the jury's verdicts were based upon the statements as to future events was not insignificant, for those statement may well have been viewed by the jury as the statements upon which the complainants relied.

42 Accordingly, in my opinion the new ground has been established. I would grant the application for leave to appeal, allow the appeal and direct that there be a new trial.

43 I agree, for the reasons given by Buchanan, J.A., and for the further reasons given by Ormiston, J.A. that the applicant should be given leave to amend his notice of appeal to add the proposed ground 10, that the application for leave to appeal should be granted, that the appeal should be allowed, and that a direction should be given for a new trial.

44 I wish to add a little concerning ground 10, upon which the success of the appeal has rested. The ground proposes that the inclusion of certain particulars in each of Counts 1 to 3 occasioned a miscarriage of justice because such particulars did not contain "words or conduct as to existing fact or as to law, or as to the then present intention of any person."

45 If the ground was to be considered literally, it is arguable that it should fail; for although the impugned particulars were not couched in terms of the applicant's then-present intention, they were capable of conveying such a meaning. The real problem is that those particulars were also apt to convey a different meaning - one

46 Given the possibility that the jury might consider any such particular by reference to the latter meaning, the potential problem could only have been avoided if the learned trial judge had given directions as to the permissible way in which the jury was able to consider each of the impugned particulars. No such direction was given, no doubt because neither the prosecutor nor the unrepresented applicant did anything to bring the issue to the judge's attention. The applicant, it may be added, addressed numerous unmeritorious submissions to his Honour in the course of the trial. It is well understandable that his Honour might have thought that nothing remained unexplored. But it remains the case that a direction was required, and that none was given which truly addressed the issue.

47 This Court cannot know whether the jury fixed upon the allegation made by one or more of impugned particulars in proof of a particular count, and cannot know, if it did so, what meaning the jury ascribed to any such particular. It is, of course, possible that the jury found Counts 1 to 3 proved only in reliance upon particulars other than the impugned provisions.[26] But the circumstances to which I referred a moment ago make it inevitable that the appeal must succeed.

[1] 4th ed. p.377 at para.[92.50].

[2] Loc. cit. at 379 para.[92.170].

[3] According to Halsbury's Laws of England, 1st ed. vol. 9: "Criminal Law" p.690 fn.(g) the first relevant statute was passed in 1541: 33 Hen. 8 c.l.

[4] (1865) 11 L.T. 643 at 645 per Channell, B., Blackburn and Mellor, JJ.

[5] [1949] HCA 55; (1949) 79 C.L.R. 353 at 360-364.

[6] (1966) Cmnd. 2977.

[7] As appearing in s.81(4) of the Crimes Act of this State made applicable by s.82(1) to the offence of obtaining a financial advantage by deception.

[8] Para.(b) of the definition in this State comprehends acts effectuated by computers and the like, a matter not presently relevant.

[9] See as to mispredictions, in the different context of restitution on the ground of mistake, Dextra Bank & Trust Co. Ltd. v. Bank of Jamaica [2001] UKPC 50; [2002] 1 All E.R. (Comm.) 193.

[10] [1955] 2 Q.B. 590. The Court consisted of Goddard, L.C.J. and Devlin and Donovan, JJ.

[11] At 594.

[12] At 596.

[13] [1984] W.A.R. 313; 10 A.Crim.R. 328.

[14] At p.12 of the report of the Sub-committee on Theft (para.13(b)).

[15] See Arlidge and Parry on Fraud, 2nd ed. p.133 para.4-026: cf. A.T.H. Smith: Property Offences (1996) pp.486-487 para.17-51.

[16] Substantially abolished by the Debtors Act 1869 (U.K.).

[17] I exclude those particulars which seem to have no element of futurity about them, i.e. those in which the word "would" does not appear.

[18] [1999] NSWCCA 53; (1999) 104 A.Crim.R. 416.

[19] (1996) 188 CLR 77.

[20] Above at 89. See also Montgomery v. Stewart [1967] HCA 11; (1967) 116 CLR 220.

[21] See Watson, Blackmore and Hosking, Criminal Law (NSW). At paragraph 2.25180 the authors contemplate with equanimity "In the one count, the Crown charges a number of matters as together constituting a deception ..."

[22] See R. v. Lancaster [1998] 4 V.R. 550.

[23] House v. R. [1936] HCA 40; (1936) 55 C.L.R. 499 at 503 per Dixon, Evatt and McKiernan, JJ.

[24] [1985] HCA 22; (1985) 156 C.L.R. 464.

[25] Some of the statements were in writing. Others were oral or were conveyed by conduct.

[26] There were many uncontroversial particulars. Concerning Count 1, see [10] in the reasons of Buchanan JA. The applicant sought to impugn only particulars (f), (g), (i) and (j). Particulars (f), (g) and (j), certainly, raised the problem now under discussion.