R v Weaver [1931] HCA 23

High Court of Australia|1931-07-01|Before: Tiernan JJ

: WEAVER bs Fi 4 F % 4 ¢ . ResponvEnt. 7 ON APPEAL FROM THE COURT OF CRIMINAL APPEAL OF

Griminal Law - Conspiracy to cheat and defraud - False pretences - Form of indictment H.C. or A.

Delerminable by Crown - Overt acts - Particulars - Values - Bridence - Direc- 1931. tions to Jury - Verdict of guilty - Appeal to Court of Criminal Apped

accused, appeal by one only - Appellant's conviction quashed - Verdict of acquittal SYDNEY,

Appeal by Crown to High Court - Oompetency - Determination - New trial warranted, but, in circumstances, not ordered - Orimes Act 1900 (N.S.W.) (No.

40 of 1900), sec. 393 - Criminal Appeal Act 1912 (N.S.W.) (No. 16 of 1912), "Byatt avd sec. 6 (2), MeTiernan JJ.

1, Every kind and description of fraudulent statement, conduct, trick or device by which a party may be induced to part with his property for less than its value or to give more than its worth for the property of another falls within the description of fraud necessary to make criminal a combination to cheat and defraud.

2, A false pretence may suffice to satisfy a charge of conspiracy though the pretence is such that making it would not constitute the statutory crime of false pretences.

It is for the Crown to determine what form a prosecution shall take and for the Court to determine whether the charge made has been supported.

4, The Crimes Act 1900 (N.S.W.), sec. 393, provides that it is not necessary to state any overt act in an indictment for conspiracy but the Court may order such particulars to be given as to the Court may seem meet:

Held, that it is the duty of the Court trying the indictment to direct precise particulars of the acts relied upon by the Crown to establish the conspiracy charged.

R. v. Partridge, (1930) 30 8.R. (N.S.W.) 410, approved.

The Court of Criminal Appeal directed, pursuant to sec. 6 (2) of t Criminal Appeal Act 1912 (N.8.W.), that a conviction for conspiracy ag an appellant to that Court be quashed:

Held, that such a judgment and verdict is the determination of a Cour law and not of a jury, and is subject to the appellate power of the High Co

R. v. Snow, (1917) 23 C.L.R. 256, at p. 261; (1918) 25 C.L.R. 377, follo . R. v. Snow, (1915) 20 C.L.R. 315, at p. 363, distinguished.

Decision of the Court of Criminal Appeal (N.S.W.), R. v. Weaver, (19 31 S.R. (N.S.W.) 403, in view of the particular circumstances of the allowed to stand.

Apprat from the Court of Criminal Appeal of New South Wales.

George Lynne Weaver and William Clarke Stevens were trie 24th November 1930 and succeeding days, at the Court of Q Sessions, Gundagai, on an indictment in which they were ch that on and after 16th April 1926 at Jugiong and other p New South Wales they "did amongst themselves with each and with divers other persons conspire to cheat and defraud F Thomas Coggan and divers other persons of divers large money." Particulars of the overt acts relied upon by the Cror were supplied to the accused before the trial, and were as follo "The overt acts relied on by the Crown . . . are thosed in the depositions, more particularly : (1) All exhibits and tendered during the hearing at the Police Court; (2) various visi made to Belmont, Jugiong, on and after 15th April 1926, h sales took place of certain blocks of land in the estates known ' Marayong, Walgrove and Lynwood, and all representations mac in connection therewith mentioned in the depositions: (3) visit t Great Southern Hotel, Sydney, on 5th August 1930, and all eo nve sations subsequent thereto, inducing Coggan to drop n proceedings, (4) various visits made to" certain named "and all representations made in connection with the various blocks of land in the aforementioned estates, and such matters, documents and writings as are necessary to connect a elucidate the above-stated items as set out in the depositions, # Crown, of course, reserving the right to tender further evide upon due notice." It was shown in evidence that for a peri three or four years commencing April 1926, Weaver and Stev

the latter being in receipt from the former of a salary and a commis- sion on sales - were in close and constant association for the purpose of selling land owned by Weaver and situated near Blacktown, New South Wales. The practice of the accused was to visit country people at their homes in distant parts of the State, to whom they stated that having themselves been born in the country they sympathized with country people and wanted them to share in the profits to be made on the sales of the land owned by Weaver. Schemes were propounded to the country people whereby they should buy land from or through Weaver and Stevens and then sell it again within the course of a few months at, so it was stated, prices which would result in a net profit of 100 per cent or more and which would, indeed, make them the wealthiest people in their respective districts. Both the accused on the same and different occasions, and invariably in the presence of each other, stated that the land they had to sell was extremely valuable; that there was a keen demand for the land in question, and that they would resell it, and would guarantee its sale within the course of a few months at huge profits. Representations were made as to existing and prospective improvements on or in the vicinity of the various estates, especially in regard to one estate, of the proposed construc- _ tion or erection of a speedway and a factory, and, as regards another estate, of a hotel and a dance hall; but the evidence showed that such representations were untrue. Country people were appointed by the accused to act as their representatives in the districts in _ which the appointees resided, a remuneration of £5 per block of

land being promised for each sale recorded within such districts.

Evidence was given by a grazier and his wife, who had been so _ appointed, and who had bought many blocks of land from and paid considerable sums of money to the accused, that whilst on a visit to Sydney the accused had taken them out by motor-car to some : land near Blacktown, which Weaver informed them was the

s Marayong Estate, and during the brief stay of a few minutes only

Weaver pointed out where, according to him, it was proposed to build a railway station, and the speedway and factory above referred to, but no signs of any preliminary work were noticed. Regard was _ expressed by the accused for the interests of the children of some of

the country people so visited, and " special" blocks were reserved for them on the condition that the parents should contribute in cas two-thirds of the value fixed by the accused, which condition complied with, quick returns in respect of such blocks being promi Bad investments these people had made in shares were to be met by investment in the land offered by the accused. Contracts pr cured by misrepresentation on the part of others were to be set and the moneys paid thereunder recovered and more land pur from the accused. The evidence showed that a large number blocks of land were sold, for which the purchasers paid some £20,000 to the accused although according to the evidence such land was of small value and there was little, if any, demand for it. , made by the accused to purchasers that they would resell the at "handsome profits " were not kept, not one resale being e1 In the course of his summing up to the jury the Chairman |

charged is apparently that these two men put their heads r, 3 and started out deliberately into the country for the purpos of cheating and defrauding various people . . . of large of money by reason of a sort of false pretence, coupled in many case by a false promise ; getting into their confidence by all the arts of. confidence person, and having obtained their confidence selling them land at a value which, the Crown states, they, at that time, was not of that value ; and furthermore inducing them to buy at extravagant value, giving them a promise that within a short ti two or three months - they would either sell the property or hat them back their money, that is to say, cancel the contract. . On the question of their combining the Crown alleges that # two men made up their minds. There are circumstances from they ask you to come to the conclusion that they did make up minds to go forth, and by trick or confidence or whatever you

to do at the least a civil wrong. It has been pointed out you, gentlemen, that there must necessarily be a criminal ¥

A ee, 5 ca a Conspiracy can lie if two people combine to do a civil wrong to 2

particular person, and it has been said that two people may combine 'H.C. of A

and be party to do an act which an individual may not be criminally liable for. There is the case, gentlemen, and with the directions that I have given you, will you please consider your verdict."

Both the accused were found guilty, and were sentenced to imprisonment with hard labour, Weaver for a term of five years and Stevens for a term of two years.

Weaver appealed to the Court of Criminal Appeal against his conviction and sentence on the grounds (inter alia) that the trial Judge (1) did not direct the jury (a) as to what constituted cheating and defrauding in respect of the sale of land, (b) as to the effect of the knowledge or otherwise of the accused of the falsity of the representations, and (2) did not properly instruct the jury as to the teal issues that arose from the indictment. A report was made by the trial Judge in which he stated (inter alia) : - '' The evidence, in my opinion, shows Weaver to have been a very suave confidence trickster, who, with his companion Stevens, had obtained thousands of pounds from trusting people by the sale at extravagant prices of practically worthless land. Misrepresentation was made as regards a speedway being built particularly, besides other false statements. It was one of the most glaring instances of what is known as ' go-getting " that have known. . . . In some instances, land was stated to. be worth £200 per block, and at the time of sale Weaver would promise to sell it in two or three months at 20 per cent profit, or cancel the contract. By this means a sale was effected, and as a. matter of fact the land was never sold or the contract cancelled. These matters were placed before the jury, together with Weaver's denial that he ever mentioned the worth of blocks."

The Court of Criminal Appeal allowed the appeal, quashed Weaver's conviction and directed that a verdict of acquittal be entered in respect of him: R. v. Weaver (1).

The judgment of the Court, which was delivered by Ferguson J., contained (inter alia) the following : - '' There was evidence upon which it was open to the jury to find that the prices paid for the land were far in excess of its real value, and that buyers were misled by fraudulent misrepresentations as in matters of fact

affecting its value. . . . The offence, if any, was a to obtain money by false pretences, and it is necessary to be: mind that the essence of such a conspiracy is not the making false representation itself, but the agreement to make it. As t] was no direct evidence of such agreement, it might be prove in the ordinary case of prosecution for conspiracy, by infer from the acts of the accused. . . . If both the accused were: guilty of false pretences, there is no evidence upon which they eo properly be convicted of the conspiracy charged against them.

became necessary, then, for the prosecution, in the first pl establish beyond reasonable doubt that each of the acc made, or was a party to, some specific representation of fact with intent to defraud, which, to his knowledge, was false. 1 would have been sufficient to justify his conviction on a cha false pretences, but that was not the offence with which he charged. . . . Where a charge against several conspiring to commit a crime can be made out only by proof that have, in fact, committed that crime, in common fairness they s be charged with the specific crime, and not with conspiring commit it. . . . The Crown, however, having laid the el in this way, as it was legally entitled to do, the question no the Court is whether any ground has been shown why the conv upon it should not be allowed to stand. It was essential should be made clear to the jury what facts should be proved they could find the accused guilty. Had the applicant alone charged with false pretences, it would have been left to the to say whether it had been proved to their satisfaction that this that specific representation had been made by him, that it wasf and false to his knowledge. Had Stevens been tried alone, would have been a similar direction in his case. The fact that # were tried together, not for false pretences but for conspiracy could be proved only by proving false pretences, did not them of the right to have that part of the case presented least, as much particularity and precision. In my opinion th not done. The careful summing-up of the learned -Chairmal Quarter Sessions proceeded largely upon the assumption that

essence of the charge was that the accused had made misrepresenta- H. ©. or A.

tions as to the value of the land. In that, I think, with respect, that he was wrong, for the reasons I have given. Our attention has been drawn, however, to passages in the evidence which might have justified the jury in coming to the conclusion that the appellant, and possibly Stevens, had each been guilty of wilfully false representa- tions as to specific matters of fact affecting the value of the land. But there was nothing to indicate to the accused that that was the case they had to meet. There was nothing to show the jury that those were the matters upon the consideration of which their verdict

should be based. It is quite possible, and, I think, probable, that they acted upon the view that the charge was made out if it was proved to their satisfaction that advantage had been taken of the gullibility of buyers to induce them to give extravagant prices for the land."

Stevens, who had not appealed, was subsequently released by the Crown.

From the decision of the Court of Criminal Appeal the Attorney- General for New South Wales now, by special leave, appealed to the High Court on the grounds (inter alia) that the Court of Criminal Appeal was in error in holding that if both the accused were not guilty of false pretences there was no evidence upon which they could properly be convicted of the conspiracy charged ; that the Court should have held that no substantial miscarriage of justice occurred ; and that it was in error in holding that the conspiracy charged could be proved only by proving false pretences against the accused.

_ Other material facts appear in the judgments hereunder.

Loxton K.C. (with him McMinn), for the respondent. There is a 'preliminary objection to this appeal being proceeded with. The 'Crown's tight of appeal in this matter has been extinguished. Upon the Court of Criminal Appeal allowing the present respondent's appeal and quashing his conviction, the Crown released also the

m who had been convicted of conspiring with him, and such 'person cannot again be placed upon his trial. The right to appeal

did not exist at the time of the application for special leave to ap (Loughnan v. Haji Joosub Bhulladina (1) ).

[Gavan Durry C.J. In view of the fact that the Court o Criminal Appeal ordered and directed a judgment and verdict acquittal to be entered, can any further proceedings be t (See R. v. Snow (2).)

[Srarke J. referred to Musgrove v. McDonald (3); Baume y, Commonwealth (4); The Commonwealth v. Brisbane Milling Co,

({Evarr J. referred to Secretary of State for Home Affairs v. 0') (6).J :

According to the official papers the Crown stated that the ma was a nullity and that a release ought to take place. 4

Weigall K.C. (with him Kinkead), for the appellant. No qu arises as to the Crown's right or power to re-arrest after release re-arrests have been effected many times (R. v. Grills (7); Finlayson (8) ; R. v. Eyles (9); R. v. Judd (10) ). The other per convicted with the respondent was released under the Fines Penalties Act 1901 (N.S.W.). Where the Court of Criminal A has made an order that a verdict be entered, this Court has: to make any order that the Court of Criminal Appeal ought to: made. The question as to re-arrest need not arise (Di Public Prosecutions v. Christie (11) ).

{Evarr J. Under sec. 24 of the Criminal Appeal 4a 1 (N.S.W.) the Crown must apply for a stay of proceedings before t release of a successful appellant.]

The release of a prisoner does not prevent this Court from special leave to appeal (Attorney-General (N.S.W.) v. Jackson |

[Loxton K.C. That case was decided prior to the passing of see of the Criminal Appeal Act 1912.]

The observance of the provisions of sec. 24 is not a cont precedent to the institution of an appeal. Such pro intended to meet the case where the Crown thinks a

(1) (1851) 7 Moo, P.C, 373, at p. 381 5 (6) (1923) A.C. 603. 13 E.R. 923, at pp. 7. (7) (1910) 11 CLLR. 400. (2) (1915) 20 C.LR. (8) (1912) 14 CLR. 675.

(3) (1905) 3 CLR. (9) (1917) 23 CLR, 1. (4) (1906) 4 C.L.R. (10) (1919) 26 C.L.R, 168. (5) (1916) 21 C.L.R. (11) (1914) 10 Cr, App. R. Ml. (12) (1906) 3 CLLR. 730.

not answer his bail. As to the Court entering a verdict of acquittal, see sec. 6 of the Act.

Assuming that there is no appeal from the verdict of a jury; in this case the jury did in fact convict, which conviction was set aside by the Court of Criminal Appeal. Similar facts were present in Attorney-General (N.S.W.) v. Jackson (2), but the High Court dealt with the appeal nevertheless.

[Gavan Durry C.J. Is not the order of the Court of Criminal Appeal similar in nature to the direction of a trial Judge to a jury to find a verdict ?]

The position is covered by Attorney-General (N.S.W.) v. Jackson (2); see also R. v. Boston (3).

Gavan Durry C.J. The Court will reserve its decision on this point, and will hear argument on the merits of the case.

Weigall K.C. (with him Kinkead), for the appellant. The two accused could not have been convicted of obtaining money by false pretences. The judgment of the Court of Criminal Appeal unduly restricts the right of the Crown to take proceedings in case of cheating and defrauding (R. v. Hudson (4), which was followed in Scott v. Brown, Doering, McNab & Co. (5) ). Whilst the judgment of the Court of Criminal Appeal stands, a trial Judge will be unable, in cases where the charge is conspiracy to cheat and defraud, to direct the jury to convict if the evidence be such as would support a charge of false pretences. (See also R. v. Gunn and Howden (6) and R. v. Partridge (7).) As to the summing-up the substantial question is: Was the case properly left with the jury? (See R. v. Grills (8).) "* Puffing " does not apply where there is a false statement of fact (R. v. Nathan and Harris (9) ).

The evidence amply shows that as to values and prices the accused

had made false statements of fact. A defence of " puffing" must (1) (1915) 20 C.L.R. 315; (1917) 23. 263; 169 E.R. 1254. CLR. 256; (1918) 25 CLR. 377; (5) (1892) 2 Q.B. 724, at p. 738,

(2) (1906) 3 C.L.R. 730. (7) (1930) 30 S.R. (N (3) (1923) 33 C.L.R. 386. (8) (1910) 11 C.L.R. 400. (4) (1860) 8 Cox Cr. Ca, 305; Bell (9) (1909) 2 Cr. App. R. 35.

have some limits imposed upon it. On the question whether jury should have been directed on this point, it is material to as whether the verdict of the jury was perverse or not (R. v. MeMc (1) ). If a matter is properly before a jury, even if only poi out by counsel, a Court of appeal will not interfere (R. v. Q (2); R. v. Murray (3) ). In Murray v. The King (4) this refused an application for special leave to appeal from the deci: of the Full Court of the Supreme Court of Victoria. A "si up " is not a lecture on law, but is merely a pointing out of materi features. Non-direction is not misdirection. It is for the Crown determine with what offence an accused person shall be charged and Courts should deal with the charge asso laid. The practice ob in New South Wales is not to join any other counts with co charges (see R. v. Luberg (5)). The only offente here is a cor spiracy; that is, a conspiracy together to do something which is: moral wrong, and unless conspiracy be charged the offence be adequately dealt with. The judgment of the Court of Appeal should not be allowed to stand (R. v. Hudson (6) ). jury could not reasonably have come to the conclusion that accused came by the money honestly.

Loxton K.C. (with him McMinn), for the respondent. The other accused was merely a salaried employee of the respondent and in no way benefited by sales of the land, and there is no evidence to show that he had any knowledge that the statements complained of if made, were false. The evidence of the Crown's principal wi shows that long after he had been shown over the land referred toh continued to buy and sell allotments thereon and earned large sum
of money as commission, and it was not until after the lapse of or four years that he made any suggestion as to deceit. that the representations were made as alleged, such a case is tht very one in which a charge of false pretences should be laid. On fair reading of its judgment the Court of Criminal Appeal d with the facts of this particular case and what was reasonable

(1) (1930) 30 S.R. (N.S.W.) 262, at (4) (1924) 35 CLR. 596, p. 264, (5) (1926) 19 Cr. App. R. 133. (2) (1911) 6 Cr. App. R. 269, (6) (1860) Bell 263; 8 Cox Cr

(3) (1924) V.LR. 374, at 'p. 383; 305; 169 ER. 1254. 46 A.L.T. 35, at p. 39.

be done having regard to the way the case was conducted. No H. ©. or A.

exception can be taken to representations as to value when such representations are made by the vendor : such value is a mere matter of opinion. " Puffing " is not limited by a question of degree. It is an exaggeration of the value of the commodity then being dealt with, and is not ordinarily, a misstatement of an existing fact. It is not fraudulent for a vendor to speak in most exaggerated terms of an article he desires to sell (Halsbury's Laws of England, vol. xx., p- 670, par. 1634 ; Webster on Conditions of Sale, 3rd ed., pp. 14-18). A statement by a vendor as to value is a mere expression of opinion, and the principle is that purchasers ought not to be deceived by such statements (Bellairs v. Tucker (1); Kerr on Fraud and Mistake, 6th ed., pp. 53 et seqg.). Assuming all the representations as capable of being taken as statements of fact, they were simply expressions of opinion as to future probabilities (Bisset v. Wilkinson (2) ). The attention of the trial Judge was drawn specifically to the distinction between '' puffing" statements and statements of fact (R. vy. Levine and Wood (3)). As to the ingredients necessary to constitute conspiracy, see R. v. Warburton (4). The decision in R. vy. Partridge (5) was in accordance with decided cases and practice. Accused persons should know clearly what particular offence or offences they are charged with, and in matters of this nature full and complete particulars of the overt acts relied upon by the Crown should be communicated to the accused at the earliest possible moment before the trial. The summing-up does not give any indication as to what guided the jury in arriving at its verdict. It is the duty of the trial Judge to direct the jury in such a way that it has a clear idea of all material issues and matters in the case. The jury should have been directed (inter alia) that inferences of guilt should not be drawn from exaggerated statements unless such statements were statements of fact. Values are purely questions of opinion, and regard must be given to differences in the economic and other relevant conditions prevailing at the time the representa- tions were alleged to have been made, and at the time of the trial ; in this case a period of some years intervened. To take advantage

(1) (1884) 13 Q.B.D, 562, at pp. 571 (3) (1867) 10 Cox Cr. et seqy. (4) (1870) LC. (2) (1927) A.C. 177. (5) (1930) 30

of the gullibility of the public is neither a civil wrong nor a erim wrong. In his summing-up the trial Judge referred to a civil but did not define such a wrong. The accused Stevens was, asalre stated, merely an employee of the respondent, and he derived no benefit from the sale of the land. The evidence fails to show t] Stevens knew anything as to the value of the land or that stat said to have been made by the respondent were untrue. The om of proof of knowledge is upon the Crown, and such onus has not b discharged.

Gavan Durry C.J. In this case we are of opinion that the of the Court of Criminal Appeal should stand, but we do not ag with the reasons stated in the judgment of that Court. We that the trial miscarried, and will at a later date give our rea

The following written judgments were delivered :- -

Gavan Durry C.J., Srarke anD McTiernan JJ. George Ly Weaver (the appellant) and William Clarke Stevens were cha on indictment, in New South Wales, with conspiracy to cheat a1 defraud one Coggan, and divers other persons, of divers large of money. They were convicted, but the conviction of Weaver wa quashed on his appeal to the Court of Criminal Appeal, which order and directed that a judgment and verdict of acquittal be enter (Criminal Appeal Act 1912, sec. 6 (2)). Stevens did not appeal and his conviction still stands upon the records of the Court ¢ Quarter Sessions holden at Gundagai. The Attorney-General « New South Wales, pursuant to special leave, brought an appeal t this Court against the judgment of the Court of Criminal App The appeal was dismissed, and we intimated that we would reasons for this decision on a later day.

Before dealing with the substance of the appeal, some referred to during the argument must be mentioned. One affect the competency of the appeal. As already observed, the

Criminal Appeal directed the entry of a verdict of acquittal, and it H. ©. or Ay

was said that such a verdict is final and conclusive. No doubt a verdict of acquittal given by a jury on a sufficient indictment in a purely criminal trial conducted by a competent Court is final (R. v. Snow (1)). But the decision of the Court of Criminal Appeal quashing a conviction and entering judgment and verdict of acquittal is a determination of a Court of law, and not of a jury, and has been regarded in this Court as subject to the appellate power (R. v. Snow (2); cf. R. v. Ball (3) ). Another affects the form of indict- ment. Under the Crimes Act 1900, sec. 393, it is not necessary to state any overt act in an indictment for conspiracy, but the Court may order such particulars to be given as to the Court may seem meet. Particulars were given in this case, No. 1 was as follows : - " All exhibits and writings tendered during the hearing at the Police Court." Such a particular is indefensible and should not have been allowed. More than once the learned Judges of the Supreme Court of New South Wales have said that accused persons are entitled to ~ and should be furnished with the precise particulars of the overt acts relied upon by the Crown to establish the conspiracy charged, so that there may be clearly defined issues before the Court and the jury (R. v. Partridge (4) ). In this we entirely agree. The particular cited above, and indeed, all the particulars given under the indictment in this case, should have been struck out at the trial, and the Crown compelled by the Judge trying the indictment to give, clearly and unequivocally, the acts relied upon to establish the charge against the accused. The matter is within the control of the Judge before whom an indictment comes for trial. If the Crown fails to give proper particulars, then the Judge can adjourn the trial until it does so, and if he thinks fit bail the accused. Again, the learned Judges of the Supreme Court of New South _ Wales, following the opinions of some learned Judges in England, have said that where facts intended to be submitted to a jury to establish a conspiracy to commit a crime establish the actual commis- sion of the crime, then the proper course is to charge the parties with _ the commission of the crime, and not with conspiring to commit it (R.

R., at p. 363. (3) (1911) A.C. 47, at pp. 69, 70, 72. -» at p. 261; (4) (1930) 30 S.R. (N.S. W.) 410.

v. Partridge (1); R. v. Gunn and Howden (2) ; R. v. Selsby (3) ). a matter of opinion whether charging a conspiracy in such a satisfactory or not, but undoubtedly it is legal. It is entirel matter for the law officers of the Crown to determine the form o prosecution, and for the Court to determine whether the ch made had been supported. In the case now before us the law of exercised a wise discretion in the form of charge adopted. It wa a charge of conspiracy to cheat and defraud. But it has been held in modern times that a false pretence may suffice to satisfy a chat of conspiracy though the pretence is such that making it would constitute the statutory crime of false pretences (2. v. Hudson (4); Scott v. Brown, Doering, M'Nab & Co. (5); R.v. Warburton (|

Wright, Law of Criminal Conspiracies (1873), pp. 34-35). It is necessary, nor, perhaps, possible, to state exhaustively the deseriy

of fraud necessary to make criminal a combination to cheat ar defraud: it is enough to say that every kind and deseript of fraudulent statement, conduct, trick, or device by which party may be induced to part with his property for less than value, or to give more than its worth for the property of a certainly falls within the description of fraud necessary to mz

criminal the combination to cheat or defraud. Thus it is a eit a conspiracy to cheat and defraud if two or more persons combine t defraud others by means of false accounts, fabricated shares, fals representations or conduct, or fraudulent betting (R. v. Warburton R. v. Mott (7); R. v. Esdaile (8); R. v. Timothy (9); R. v. Orman and Barker (10)). Of course, as Willes J. said in R. v. Bryan if the misrepresentation was a simple commendation of goods, was a mere " puffing" of articles offered for sale, the case woul easily be disposed of by a jury, acting as persons of common sens and knowledge of the world (cf. R. v. Levine and Wood (12) ). if statements known to be untrue are made with intent to defr

(1) (1930) 30 S.R. ( (2) (1930) 3 (3) (1847) 5 (4) (1860) 8 Cox (5) (1892) 2 Q. aah) (1880) 14 Cox Cr. Ca. 38. (6) (1870) 1 C.C.R. (11) (1857) 7 Cox Cr. Ca. 312, at p. 3 (7) (1827) 2 Car, & P. 521; 172 E.R, (12) (1867) 10 Cox Cr. Ca, 374. z 236.

another of his property or money, then a fraud is committed, and a H- ©. or A.

combination to effect such a fraud is indictable as a conspiracy. or The facts proved in the present case afforded ample evidence of Tux Krxe

a conspiracy on the part of the accused to cheat and defraud divers Wairse

persons of large sums of money. It is a disgraceful story, and too Gavan Duty

long for full repetition here. In outline it is as follows : - The two Starke i

accused, in close and constant association, introduced themselves to ~

country people, as sympathizers with them, desirous that they

should share in profits to be made on the sales of subdivided suburban

properties near Sydney in New South Wales. They appealed to

their cupidity by unfolding a scheme whereby the country people

should buy land from or through them and then sell it again and

thus double their money, and, indeed, become the wealthiest people

inthe South of New South Wales. They said that they had valuable

Jand for sale, that there was great demand for this land, and that

they could resell it, and would guarantee its resale in a very short

time, at huge profits. Confidential relations were established by

the appointment of country people as representatives in the district

in which they lived, and promising them remuneration on land there

sold. Anxious regard for the interests of the country people's

children was expressed, and "choice blocks" were reserved for

them and quick returns promised. Bad investments these people

had made in shares were to be met by investment in the land offered

by the accused. Contracts procured by misrepresentation on the

part of others were to be set aside and the moneys paid thereunder

recovered and more land purchased from the accused. Thus it is

deposed that the accused Weaver said : - ''I will get those contracts

set aside that you signed and the return of your £1,300, even if it

costs me £1,000. I am that sure of getting you out of that, I will

give you a receipt for the £1,300 you have lost, and you need not

tepay me until the contract is set aside and your £1,300 returned." Amazing as it may seem, the accused, by means such as these,

sold a large number of blocks of land to confiding country people,

and procured from them some £20,000. Evidence was led which, if

believed, established that the lands were of small value, and that

There was ample evidence, fit to be submitted to a jury, accused conspired together to cheat and defraud, and, unfor tely succeeded in cheating and defrauding, many country people. jury had no doubt that they did so conspire, and found them guilt of the offence. But the charge to the jury of the learned who tried the case is imperfect, and the conviction cannot, in ot opinion, be sustained. The opening words of the charge migh suffice, but for the concluding passage of the charge: "In this the conspiracy charged is apparently that these two men put heads together, . . . and started out deliberately intothe country

for the purpose of cheating and defrauding various people . . .

arts of a confidence person, and having obtained their confidence them land at a value which they, at that time, knew was not of that value; and furthermore inducing them to buy at at extravagant value, giving them a promise that within a short

two or three months - they would either sell the property or them back their money, that is to say, cancel the contract." introductory words of the learned Judge to the jury do not emph as clearly as is desirable that the essence of the matter is the ment of the accused by means of false and fraudulent st conduct and devices to induce persons to buy land at more its worth and thus cheat and defraud them. The concluding of the charge is as follows : - "* On the question of their the Crown alleges that these two men made up their minds.

are circumstances from which they ask you to come to the conelus that they did make up their minds to go forth, and by trick confidence or whatever you may callit, compel, or urge - or W the term may be - induce these various people to believe that that they said was worth £150 or £200 - that that was the value of it - and by that means to do at the least a civil wrong. has been pointed out to you, gentlemen, that there must nee be a criminal wrong. Conspiracy can lie if two people combine t do a civil wrong to a particular person, and it has been said two people may combine and be party to do an act which an indivi may not be criminally liable for. There is the case, gentlemen, and

_ with the directions that I have given you, will you please consider your verdict." This passage is obscure. The expression "civil wrong" is undefined, and the direction wholly fails to state the

essence of the charge, namely an agreement, by means of fraudulent

statements, conduct, tricks and devices, to obtain the money of divers persons and to defraud them of it. It is consistent with

the passage that the crime is complete though the agreement to do a civil wrong involved no such fraudulent means. Consequently we agree with the result reached by the Supreme Court that the conviction cannot stand.

But there is power under the Criminal Appeal Act to order a new trial, and the question arises whether that power should now be _ exercised. The conviction of Weaver was quashed by the Supreme Court on his appeal, and the Crown authorities, on that judgment

being given, also released Stevens, and do not now propose that the

judgment and sentence upon him should be executed. Further, the fair and proper conduct of the trial was rendered most difficult by the improper and inadequate particulars of overt acts delivered by the Crown. In all the circumstances it is undesirable that one only __ of the two accused should be subjected to a new trial, and conse- quently the order of the Court of Criminal Appeal will stand.

Eyarr J. The respondent, Weaver, was the owner and vendor _ of certain blocks of land near Blacktown, New South Wales. The land was subdivided. Weaver and his employee Stevens then set forth to sell the blocks to persons living in country districts situated at a great distance from Blacktown. Their methods of business led _ to investigation, and ultimately they were tried at Gundagai Quarter Sessions before his Honor Judge Coyle and a jury. The charge was d conspiracy to cheat and defraud Francis Thomas Coggan and divers other persons of large sums of money. They were both convicted, but Weaver alone appealed. The learned Chairman of Quarter Sessions reported to the Court of Criminal Appeal (constituted by

the Supreme Court of New South Wales) in the following terms : -

"The trial lasted eight days. The evidence in my opinion shows Weaver to have been a suave confidence trickster, who, with his companion Stevens, had obtained thousands of pounds from trusting people by the sale at extravagant prices of practically worthless land. Misrepresentation was made

as regards a speedway being built particularly, besides other false statem It was one of the most glaring instances of what is known as 'go, that I have ever known,"

The Supreme Court quashed the conviction of Weaver and d the entry of a judgment and verdict of acquittal. From ¢ judgment the Crown appeals to this Court in pursuance of sp leave. An analysis of the judgment of the Supreme Court show that it proceeds upon certain propositions which I hl convenient to set out in the following order : -

The offence charged against Weaver and Stevens (c to cheat and defraud purchasers) was not dis from that of a conspiracy to obtain money by false that is, to commit the crime of false pretences. 4

On the facts of the present case unless both of the accu were guilty of false pretences there was no evidence uy which they could properly be convicted of the conspi charged. ;

Where a charge against several persons of conspira cy

commit a crime can be made out only by proof that t

have in fact committed that crime, they should, as a of common fairness, be charged with the specific crime a1 not with conspiracy to commit it. 3

The fact that Weaver and Stevens were tried together, for false pretences but for conspiracy which could be pt only by proving false pretences, did not deprive them of right to have the case against them presented by the tri Judge to the jury with at least as much particular if the two had been charged with false pretences.

. The summing-up of the Chairman of Quarter Sessions pr ceeded largely upon the assumption that the charge b made was that the two accused had made represt as to the value of the land in order to take advantag the gullibility of buyers and thus had obtained extravag prices. .

The assumption made was erroneous although there evidence that the buyers were misled by frau misrepresentations as to specific matters of fact afi the value of the land sold.

The relevance of propositions Nos. 2, 3 and 4 depends largely on H.C. oF A.

the validity of proposition No. 1, so that it is necessary to consider

the nature of the crime of conspiracy to cheat and defraud in relation Tae Kixe

to the crime of obtaining money or goods by false pretences.

The law of criminal conspiracy is of comparatively modern growth. During the 17th century the Court of Star Chamber acted as " the curious eye of the State and the King's Council prying into the inconveniences and mischiefs which abound in the Commonwealth." (Hudson, quoted by Holdsworth, 37 Law Quarterly Review, p.466). For the Court of King's Bench having first "asserted itself as a rival of the Star Chamber" (Wright, Law of Criminal Conspiracies, p. 9) by assuming and exercising a criminal jurisdiction over a very wide area of subject matter, had, by the end of the 17th century, successfully converted to its own use many of the doctrines of " Criminal Equity " which had been administered in the Star Chamber before its abolition. "Although," said the Court of King's Bench in 1664, "there was not now a Star Chamber, still they would have him know that this Court is custos morum of all the subjects of the King " (Wright, p. 9).

The same point of view is evident in many of the declarations of the Courts of common law in the 18th century. In 1727 Sir Phillip Yorke (as he then was) successfully argued that the King's peace might be broken by an act offending merely against morality where the public in general were affected. In 1773 Lord Chief Justice Mansfield who was greatly influenced by the opinions of Lord Hardwicke said : -

" Whatever is contra bonos mores et decorum, the principles of our law prohibit,

and the King's Court, as the general censor and guardian of the public manners, is bound to restrain and punish" (Wright, p. 9).

In this development, the old crime of conspiracy diverges from its original application, which was to cases of abuse of process, until we find in the law some approximation to the dictum of Hobbes that

all uniting of strength by private men is if for evil intent unjust ; if for intent unknown, dangerous to the Publique, and unjustly concealed." At any rate it is an established fact that during the 18th century the procedure by indictment for conspiracy was "applied to combinations for a great variety of purposes made criminal" by the adoption and recognition of principles of general morality and honourable conduct (Wright, p. 9).

It is not possible, of course, entirely to account for what is peculiar growth in the evolution of this doctrine in the co mn law Courts. There was certainly enough in the 17th 'and 18th centuries to create in those in authority a wholesome distrust persons acting in combination. Moreover, the inadequacy of th police system seems to have been appreciated by the Tudges a requiring sure punishment for detected combinations thought to b hurtful to the public. This emphasis on " public interest" and " public policy "' has had a wide influence upon the law of conspit " And just as in the law of contract there is a legitimate use of doctrine, so there is a legitimate use for it in the criminal law. both cases it is used legitimately to strike at practices and of conduct which are contrary to the established principles of common law and obviously dangerous to the State. In both cases, because it is an elastic doctrine, it gives the law a power of so develop ing its principles as to keep in touch with the needs and ideas of he age." This opinion of Professor Holdsworth (37 Law Qua Review, p. 467) is well illustrated by the history of the law conspiracy to cheat. And that history assists greatly in mining the validity of the main proposition of law contained in judgment under review.

At common law, an individual who cheated by using false or measures, which were known as " public tokens," was guilty an indictable offence. The "cheat" was punished because it wa of a public nature, and the possession and use of the false tokens indicated a general desire to defraud. By such a public token " public in general may be imposed upon without any imputation o folly or negligence " (East, Pleas of the Crown 1803, p. 820).

The common Jaw sanction proved insufficient and, asa suppleme t there was passed the statute 33 Hen. VIII. c. 1. This Act punishable in an individual the use of "a false privy token." statute recited the cunning of light and evil disposed persons refraining from getting goods by stealth and so rendering themse liable to suffer death, and who, in order to obtain goods, hi "imagined privy tokens, and counterfeit letters in other mem: names." The statute proceeded to prohibit the use " by colour and means of any such false token or counterfeit letter made in any 01

man's name" to a special friend or acquaintance for the obtaining of money from such person.

The crime thus newly created consisted in the use of a " false privy token," which meant some real visible mark or thing as a key or ring, or writings in the name of a third person, " whereby some additional credit may be gained to the party using them." From the nature of the false public token punishable at common law when used by an individual for the purpose of fraud, and of the false privy token the use of which was made punishable by the statute of Henry VIII., it would seem to follow that the obtaining of money or chattels by an individual merely by means of untrue or fraudulent statements of fact or intention was not within the reach of the criminal law. This conclusion seems to have been gradually adopted and recognized in the eighteenth century by the Courts of common law. The Statute of False Pretences (30 Geo. II. c. 24) was not passed until 1757 in order "to protect the weaker part of mankind." It was subsequently extended by 52 Geo. III. c. 64 in 1812 so as to include the obtaining of choses in action as well as of goods or money, and, in substance, the felony of false pretences referred to in sec. 179 of the New South Wales Crimes Act 1900 is the crime created by the statutes of 1757 and 1812.

So far, reference has been made to the punishment of cheats committed by an individual, but it is also clear that, before the Act of 1757, conspiracies to cheat were punished by the King's Courts. These conspiracies were punished although

(i.) there was no user proved of false public tokens (punished in an individual at common law) or false privy tokens (punished in an individual by the statute of Henry VIII.) and

(ii.) the statutory offence of false pretences had not been created and the combination was, therefore, to commit an act which was not a crime in an individual at all and

(iii.) what was agreed to be carried out would not have been punishable in an individual even if the Statute of False Pretences had been in force.

If the decided cases and authorities bear out the three points I have just stated, the validity of the first and main proposition of the judgment of the Supreme Court is directly affected.

In R. v. Jones (1) an individual was indicted for obtaining | from J. D. by falsely pretending that he had been sent by J. s get £20 for his use. Holt C.J. said : - "It is no crime . came with false tokens. Shall we indict one man for making fool of another ? Let him bring his action." This is a typical of conduct made criminal 54 years afterwards in the Statute of Fal Pretences. No proof was given of the use of false tokens public or private.

R. v. Orbell (2) was an important decision given in the followi year. The indictment was that the accused " fraudulently, ar per conspirationem, to cheat J. S. of his money, got him to certain sum of money upon a foot-race, and prevailed with the part to run booty."' In this case the Court would not quash the indic ment "for they said, that being a cheat, though it was privat

the particular, yet it was publick in its consequences." The point of Orbell's Case (2) lies in the conspiracy between th accused and the foot-runner to cheat the prosecutor of his money. 1] is certainly no case of (a) a cheat punishable in an individual a common law, or by the Statute of Henry VIII., or (6) what wa later the crime of false pretences. R. v. Mackarty (3) is also relevant. It was a case of two pe carrying out a fraud by bartering certain wine for a quantity of of the prosecutor on the representation that the wine was ~ goo and new Lisbon wine." One person pretended to be a merchat of London dealing in wine, the other said that he was a broker. The indictment charged that the defendants ~ did the acts," in form a joint offence, but also in substar aconspiracy. The 1803 edition of East (p. 824) treats the true pol of the judgment given in favour of the Crown as resting on conspi The individuals were apparently free of the net set for indiv by the common law or the Statute of Henry, the representat made resting entirely upon the assertions of the two accused. East's view, though not universally accepted (36 Law Qua Review p. 375), seems to be borne out by R. v. Bryan (4). There th attempt of a woman to obtain goods on a false pretence was held

(1) (1703) 2 La. Raym. 1013; 92 (3) (1705) 2 Ld. Raym, 1179: ER. 174. ER. % (2) (1704) 6 Mod. 42; 87 E.R. 804, (4) (1730) 2 Stra. 866 ; 93 E.R.

following way: "There the conspiracy was the crime; and an indictment will lie for that, though it be to do a lawful act." Bryan,

however, had committed "no more than telling a lie, and no instance being shown to maintain it." The indictment in Mackarty's Case is fully set out in Lord Raymond's Reports (2); and there are imputed to the defendants " fictitious assumptions, personatings, and deceits.""

The first case of importance, after the Statute of False Pretences was passed in 1757, is R. v. Wheatly (3), where the defendant was indicted for knowingly selling amber-beer short of the just and true 'measure. Lord Mansfield, presiding over the Court, emphasized the negligence and carelessness of the prosecutor in not measuring the beer upon receipt, but distinguished a case "if there be a conspiracy to cheat: for ordinary care and caution is no guard against this" (4). Denison J. said (5) that R. v. Mackarty (1) included a conspiracy and Wilmot J. boldly enunciated a principle (he declared) " which will solve them all" : - " That in such impositions or deceits where common prudence may guard persons against the suffering from them, the offence is not indictable . . . but where false weights and measures are used, or false tokens produced, or such methods taken to cheat and deceive, as people can not, by any ordinary care or prudence be guarded against, there it is an offence indictable" (6). In Wheatly's Case there was no indictment for false pretences under the statute recently passed,

but the Court seems to have recognized that a conspiracy to cheat was punishable because it was impossible to guard against its success by ordinary care and prudence.

In 1716 Hawkins had defined cheating as consisting in "any deceitful practice in defrauding, or endeavouring to defraud a man 'of his known right by some artful device notoriously contrary to the plain rules of common honesty." 'There is no doubt that the definition was too wide in its application to cheats made punishable

Ld. Raym. 1179; 92 (4) (1761) 2 Burr., at p. 1127; 97 E.R., at p. 748. 7 Burr., at p. 1128; 97

(1) (1705) E.R. 280, (2) (1705) 3 Ld. Raym, 325; 92 BR. 713. ; 1761 a) 760)

in individuals, and East accordingly criticizes it from that point view. Harrison, however, in his work on Conspiracy (1924), at says that a " combination to cheat within the meaning of this" (j Hawkins') " definition was, of course, a criminal conspiracy, an several cases of such conspiracies are on record." The foot-rum case (Orbell) (1) is (he says) a good illustration of such a consp The edition of Hast published in 1803 states that in order to ec stitute a cheat at common law " it must be such as affects the pub such as is public in its nature, calculated to defraud number deceive the people in general. And this is instanced precedents of cheats effected by conspiracy, to which may be ad forgery, which are in themselves substantive offences, though t cheats thereby intended be not fully carried into effect " (p. 816). Ee illustrates this position from the punishment inflicted at law on the use of false weights and measures " which are ka public tokens." "These betoken a general design to defrs

the public in general may be imposed upon without ar imputation of folly or negligence " (p. 820). Cheats in their natur private have, it is added, been adjudged indictable at common la "but upon examination they will either appear to be founded i conspiracy or forgery ; or as in some of the instances implicate considerations of public justice, public trade, or p policy " (p. 823).

Curwood's 8th edition of Hawkins, published in 1824, in the mai adopts East's criticisms, and says that for an individual to procu goods by a " mere naked lie " is not cheating ; and adds, too ho fully, that although the cases where cheats in individuals for use of private tokens are founded either in conspiracy or fo common law, "the examination is now of no great importance, the extension of the law by the subsequent statute of 30 Geo. c. 24 enlarged by 52 Geo. IIT. c. 64" (p. 318 (n.), Hawkins, 8th ed 1824).

R. v. Hevey (2) was a case of uttering a bill of exchange on false assertion that one of the defendants was the person to ¥ the bill was payable and by whom it was indorsed. The judgi is based not on forgery but on conspiracy to defraud. It is notie Y

(1) (1704) 6 Mod. 42; 87 E.R. 804. (2) (1782) 1 Leach 229; 168 E.R.

the evidence would have supported such a case. The truth scems

to be that the words of the statute "who knowingly and designedly, Tux cea

by false pretence or pretences, shall obtain from any person or

persons, money, goods, wares or merchandizes, with intent to cheat or defraud any person or persons of the same," were regarded as being capable of far too wide an interpretation. The Courts seem to have been loath to punish a man who, for example, bought goods not intending to pay for them "by a false pretence of his ability and intention to pay.' "This is closely analogous," says Stephen, "to the element of public harm involved in the definition of cheating. A mere lie told with an intent to defraud, __ and having reference to the future, is not treated asa crime. A lie _ alleging the existence of some fact which does not exist is regarded as a crime if property is obtained by it' (Stephen, History of the

Criminal Law of England, vol. 11., p. 161). Hence Adolphus in _ "The Circuiteers " attributes to Lewin (the reporter of the Crown

"Tell me the difference first, 'tis thought immense, " Betwixt a naked lie and false pretence."

The famous case of R. v. De Berenger (1), where false rumours of the death of Napoleon had been spread in pursuance of a design of

certain persons to raise the price of the public funds, may be regarded __ from one aspect as a conspiracy to defraud the purchasers. Dampier _ J. certainly pointed out (2) that the means used - the spreading of

"wrong," and the object in view - the giving of a false value to a public or vendible commodity to the injury of

"the purchasers - was also " wrong." Yet neither the means nor the

end in themselves were strictly unlawful. It is as a conspiracy to defraud or cheat that Lord Esher treated De Berenger's Case in RB. v. Aspinall (3).

e R.v. Pywell (4) was a case before Lord Ellenborough of a conspiracy to cheat by selling an unsound horse by false warranties. An acquittal was directed, and the case has sometimes been relied upon for the view that a combination to cheat by the mere use of false

pa) (814) 8M. & S675 105 ER, (3) (1876) 2 Q.B.D. 48. (4) (1816) 1 Stark, 402; 171 E.R, 5) (1814) 3M. &S., at p.77; 105 510. ae at p. 540,

warranties is not indictable. The true ground of the decision app to be that one of the two defendants in Pywell's Case (1) was not proved to be a party to the design, Lord Ellenborough stat that " No indictment in a case like this could be maintained, wi evidence of concert between the parties to effectuate a fraud" Pywell's Case, if it means more than this, cannot be regarded a good law. (R. v. Cavlisle (3).) f

In R. v. Kenrick (4) there was proof that A and B conspired make a false representation (knowing it was false) that certain horse sold to the purchaser had belonged to a private person and not to a horse dealer. In the course of argument Lord Denman 0. pointed out that a conspiracy to " cheat and defraud " were y "Imown to the law" (5) and distinct from conspiracy to obi goods by false pretences. The Court held that the same evid was sufficient to sustain convictions for (1) conspiracy to cheat and (2) obtaining money by false pretences.

In R. v. Yates (6) the indictment alleged a conspiracy " by fals pretences and subtle means and devices" to extort money from T. E. and cheat and defraud him thereof. No evidence amounting to a false pretence was given but it was held that the allegat "by false pretences" could be treated as surplusage, Crompton J. stating that the gist of the offence was the conspiracy to injure. \

In R. v. Carlisle (7) there was an agreement by false represen tions to induce the seller of a horse to abate part of his purch price. No actual obtaining of any money resulted from the frat but the agreement was held indictable. "I am not aware," Crompton J. in the course of argument (8), " that there is any ease which goes so far as expressly to decide that a conspiracy to mis sent the value of goods, as between buyer and seller, would not be an indictable offence."

The impossibility of a purchaser's obtaining a civil remedy misrepresentations made in pursuance of an agreement is not itself an answer to a case of a conspiracy to cheat. R.v. Timothy) '

gift) (818). 2, Stank, A085 17L ER 8G) (1843) 5 Q.B., at p. 595 THER

at p. 1170. Ny (1816) 1 Stark, at p. 403; 171 (6) (1853) 6 Cox Cr. Ca. 441. a E.R. at p. 511. (7) (1854) Dears. 337; 169 E.R. 750. (3) (1854) Dears, ae at p. 342 (a); (8) (1854) Dears, at p. 341; 169

169 E.R. 750, at_p. E.R., at p. 752. (4) (1843) 5 Q. iy 49; "ls E.R, 1166, (9) (1858) 1 F, & F. 39; 175 E.R. 61

shows this, because, the false representation as to solvency being oral, Lord Tenterden's Act made the ordinary civil remedy impossible. R. v. Esdaile (1) (the case of the directors of the Royal British Bank) is an example of an indictment for conspiracy to defraud by false representations to the effect that the Bank was in a sound and solvent condition.

R. v. Hudson (2) is a very important and typical case of a conspiracy to cheat. The conspirators induced a yokel to bet upon what was in fact a certainty, by tempting him to try and cheat one of the conspirators. By means of a device the event was indeed a certainty but in the contrary direction. The case is not one of false pretences at all. Blackburn J. (as he then was) pointed out that the prisoners cheated the prosecutor into believing that he was going to be the biter when in fact he was going to be bitten (3). The Court clearly regarded the "false pretence" assigned in the indictment as part of the means employed. to cheat as being quite distinct from the statutory crime of that name. In Scott v. Brown, Doering, McNab & Co. (4) A. L. Smith L.J. relied on R. v. Hudson for the proposition that "false pretences," if mentioned as an ingredient in a conspiracy to cheat, " do not mean such false pretences as would support an indictment for obtaining money or goods by false pretences'.

R. v. Lewis (5) was the mock auction case, with sham bidders and goods " vamped up " but far different in quality to that repre- sented. The indictment was for (i.) conspiracy to defraud and (ii.) false pretences. Willes J. allowed evidence to be given that the price paid for articles in the auction room by purchasers was £8 and £10, whereas the real value (according to expert evidence of tradesmen in the town) was £4 13s. 6d. and £4 8s. 6d. respectively. The argument for the accused was not dissimilar to much that was urged on the question of value during the course of the present appeal. What took place (it was said) was only a misrepresentation of value and not of specie. It was a mere puffing of value. The goods delivered after sale were of the same general character as that

Ao (1858) 1 F. & F. 213; 175 ER. (3) (1860) Bell, at p.

described. Willes J. withdrew the count of false pretences but allowed the conspiracy count to remain. He directed that the jury might convict if they found an agreement to put off goods at prices grossly higher than the defendants knew they were worth, inducing the belief that everything was genuine.

In R. v. Warburton (1) Cockburn C.J. for the Court of Copal Cases Reserved said that in a conspiracy to cheat it was not necessary that the acts agreed to be done should themselves be criminal, and was sufficient if they would amount toa civil wrong. The combinati of two or more to injure another by such fraudulent practices as would give the latter an equitable remedy would attract the sanction of the criminal law of conspiracy. R. v. Warburton is an established and binding authority.

At a glance

Court

Decision date

Before

Source

Judgment (293 paragraphs)

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