R v Weaver [1931] HCA 23

• 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.

3. 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.

5. 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 : -

1. 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. ;

3. 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

4. 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)

hs not punishable. The Court referred to Mackarty's Case (1)in the H- ©. or A.

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.

that no reliance is placed on the Statute of False Pretences although #: ©. or 4.

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.

In R. v. Aspinall (2), a case of a fraudulent company promotion, Brett J.A. (as he then was) said that " An agreement made with a fraudulent or wicked mind to do that which, if done, would give to the prosecutor a right of suit founded on fraud, or on violence exerted on or towards him, is a criminal conspiracy." It was fraudulent against the purchaser of a vendible commodity to raise the price of it by fraudulent falsehoods. R. v. De Berenger @) should be regarded from such aspect, and shares of public com were in the same position as Government stock. An agreement to give fictitious or unreal value to shares by transactions not represent- ing any real or genuine desire to buy was within the principle, and might amount to a conspiracy to cheat.

Scott v. Brown, Doering, McNab & Co. (4) is also an important case. The Court of Appeal treated as a conspiracy to defraud an agreement to purchase shares in a new company so as to induce purchasers to believe, contrary to the true position, that there was a_ bona fide market and shares were at a real premium. Lindley LJ. said (5) that, although the purchase was an actual and not a sham purchase, the sole object of it was to cheat and mislead the public into the belief that the shares had a value. A. L. Smith L.J. referred (( with approval to Hudson's Case (7) in the manner previously described. C.R. at p. 276. (5) (1892) 2 Q.B., at p. 729.

A long line of decisions has been traced because of the tendency H.C. or A.

to identify a conspiracy to cheat with a conspiracy to commit the

crime of false pretences. No doubt the judgment of the Supreme Tur Kixe v

Court was largely affected by the simplicity of the rule which would be applicable on the hypothesis of this identity. Moreover, in a number of cases, the view has been expressed by Judges of the Supreme Court that the use of the indictment of conspiracy to cheat was accompanied by unfair heaping together of evidence by the Crown, by the failure to give proper particulars, and often by proof of substantive criminal offences on the part of one or more of the individuals jointly indicted for conspiracy.

There is, however, a vital distinction between a conspiracy to cheat and a conspiracy to obtain money by false pretences. The latter conspiracy is a conspiracy to commit a crime. The former conspiracy is proved by showing an agreement to do certain acts of a fraudulent or dishonest character which, if done, would enable the person defrauded to succeed in obtaining a civil but not neces- sarily a criminal remedy. It is occasionally said to be an illogical and surprising feature of the law that an individual may do certain acts without criminal liability attaching to him, whereas a criminal conspiracy arises if two persons agree to do those very same acts ; but if the result surprises, it is certainly not illogical. For conspiracy consists in the making of an agreement. The nature and quality of the agreement determine its legality or criminality, and there is no logical reason why certain agreements should not be struck at by the criminal law. What an individual may of himself lawfully do is nothing to the point. One thing he can never do - of himself - is to make any agreement.

Turning now to the propositions laid down by the Supreme Court, proposition 1 is, in my opinion, erroneous. As long ago as 1899 it was accepted law that " Beyond all question there are, as the law now stands, some cases where an indictment for a criminal conspiracy may be maintained, although if the purpose of the conspiracy were carried into effect, no indictment would lie against any individual for anything done in pursuance of the combination" (6 Law Quarterly Review, p. 131). One of the best instances of this general Statement is the case of a conspiracy to defraud. Proposition No.

2 is based upon the hypothesis that the Crown had to prove b the accused guilty of false pretences, and this hypothesis is uns The third proposition is not one of law but of policy. Itisa matt for the exercise of discretion by the Crown Authorities. It m be observed, however, that the suggestion of unfairness has no necessary application to a conspiracy to cheat. In order to prove

a conspiracy to cheat, evidence may be led which incidently tends show the commission or the attempted commission by one or more of the accused of the crime of false pretences. As itis not necessary, however, that such crime should be proved as an ingredient in conspiracy to cheat, the comment of the Supreme Court has not the force it might otherwise have where what is charged and has to be proved, is an agreement to commit a crime. ' It must not be forgotten in matters of this kind that grave abuses are associated with the practice of what is called " go-getting," where vendors or agents send out persons to work in teams it order to compel and to coerce members of the public to buy land of little or no value, at extravagant prices, and often situated at distant or inaccessible places. It is possible that this practice may be conducted without dishonesty, fraud or criminality, but man cases which have reached the Courts during the past ten years have shown that the practice is constantly associated with fraud of a serious description. Often the success of the fraud depends upon the salesmen selling in association. It is well known that two three are able to effect a cheat or a fraud where one by himself is _ powerless to do so. This fact has, in the past, been a feature : many cheats, including the sale of worthless animals and worthless goods. < It may, therefore, be essential for the proper administration of justice that, where the Crown Authorities consider frauds to have resulted from the agreement of two or more persons to sell worth- less land, or worthless company shares, or worthless goods, the indictment for conspiracy to cheat should be used, even though it may reveal the commission or attempted commission of the erime of false pretences by one or more of the accused. If the agreement which can be inferred from the acts of the accused is to do acts which would enable purchasers to rescind their contracts because of

the deceitful practices employed, or to succeed in an action of deceit H.C. oF A.

at law, then the conspiracy has been established. It does not lie in the mouth of one of the accused to complain that it may incidentally be proved that he has also committed or attempted to commit the statutory felony of false pretences.

At the same time, where the indictment of conspiracy is used, proper particulars of the overt acts relied on should be given. A mere reference to depositions taken upon the preliminary magisterial inquiry will seldom be sufficient. I have known cases where these depositions contained hundreds of pages, and something more specific than such reference is required in order to enable the Judge presiding at the subsequent trial to rule on questions of the admis- sibility of evidence, and to instruct the jury on the questions for their consideration. The tendency of legislation in New South Wales and elsewhere has been to do away with the necessity of giving anything in the nature of particulars in the indictment itself. The formal charge to which the accused pleads becomes more and more general and vague, as witness the indictment in the present case. It has statutory warrant and it cannot be criticized with anyadvantage. But the Courts have jurisdiction to order particulars, and, as Lord Denman C.J. pointed out some ninety years ago, "' the expedient now employed in practice, of furnishing the defendants with a particular of the acts charged upon them, is probably effectual for preventing surprise and unfair advantages" (R. v. Kenrick (1) ).

Proposition No. 4 in the judgment of the Supreme Court is also based upon the assumption that it was necessary for the Crown to prove that both Weaver and Stevens were guilty of the crime of false pretences. Propositions Nos. 5 and 6 really amount to the view that the learned Chairman of Quarter Sessions in his charge to the jury failed to direct that it was necessary to establish against the accused acts amounting to the crime of false pretences. Upon this assumption, there was, in the opinion of the Supreme Court, misdirection as well as failure to direct.

It is the first or root proposition of the judgment under appeal which is not correct in point of law. The Supreme Court appears

(1) (1843) 5 Q.B., at pp. 61-62; 114 E.R., at p. 1171.

to have entertained the opinion that a case of false pretences have been presented successfully against one or both of the a but, as this was never suggested at the trial or put to the jury, verdict of guilty could not stand; moreover, it would not h been of any use to order a new trial on the charge of conspi consequently a judgment of acquittal was entered.

Whilst I am of opinion that the basis upon which the jud of the Supreme Court proceeded is erroneous, the question remains whether the trial itself did not miscarry. Inasmuch as 1 definite particulars of the overt acts, relied upon by the Cro m to prove the conspiracy, were before the learned Chairman of Qua Sessions, his summing-up was necessarily a task of special diffieu But counsel for the accused from an early stage of the trial made submissions to the effect that a misrepresentation of the value of the land sold could not serve as evidence to support a charge conspiracy to defraud, or, if it could, such evidence was of a special character and it was essential to point out to the jury the distinction between mere puffing or exaggeration and fraudulent misrepresent tion. ¥

Undoubtedly the case was largely dependent upon the decisio of the jury as to what was said to prospective purchasers by th accused upon the subject of the value of the blocks of land whiel were being offered for sale.

It is extremely important to disabuse over-enthusiastic pers of the notion that they are able to escape the clutch of the eri law by confining their misrepresentations to statements as to value of land offered for sale. No doubt the view often entertained is that in making such statements all that is being done is to expre: an opinion. It is apparently believed by those engaged in deals of a dishonest or doubtful character that, so long as they confine their representations to statements of land value, they are safe.

Leaving out of consideration mere puffing or mere exaggerati , in which the representor does not condescend to any definite state ments of value, the first essential is to ascertain the mean of the words used and the representations made. That mea may be affected to some extent by the means of knowledge and relative positions of the persons concerned. To say that land "

(1) that the land offered possesses an actual value of £20 per foot

such value. Even in the second case - a representation as to opinion - there may be implied a representation that there are _ facts in existence which justify the expression of the opinion (Bisset __y, Wilkinson (1) ).

__ Passing by such question of implied representation contained in the statement of opinion itself, and confining attention to the two main types of representation set out, it will be for the jury to , "determine in the circumstances of each case what was the meaning conveyed by the statements made.

In the first type, representation as to value is definitely objective in character. The Crown must prove (often no doubt by expert _ evidence) that the actual value of the land was not as represented, _ but it is not essential that actual knowledge of the untruth of the tepresentation as to objective value should be proved. If the repre- sentation is false, it may be shown to have been intentionally made, without belief in its truth, and with a dishonest indifference to its truth or falsehood. The conduct of two or more persons may, in

_ the circumstances, justify an inference that the representations Were made in pursuance of an agreement to ascribe a value to the land which it did not possess, and made without the slightest regard to the truth or otherwise of the statements of objective _ Yalue to be asserted. Such an agreement is a criminal conspiracy _ to defraud because, if carried into effect, the persons injured could obtain civil relief either at law or in equity.

In the second type, the representation is of a subjective character, _ purporting to express the opinions of the seller. If the inference may be drawn from the evidence that the opinions were not really held by the seller expressing them, the untruth of the representations made is established. And if the actual salesmen are the parties charged with conspiracy the same inference shows that the repre- Sentations were made fraudulently. It will then be for the jury to determine whether the misrepresentations made were made in pursuance of prior agreement.

~ worth £20 per foot, but you may have it for £2 per foot," may mean H: ©. or A.

or (2) that in the opinion of the seller the land being offered has Tar Kixe

In cases such as the present, statements as to value may presen a double aspect. The Crown may desire both phases to be sented to the jury, and the latter may thereupon be directed a conspiracy to cheat or defraud will be established if infer from the facts either (1) an agreement to secure purchas by making statements as to the market value of land of for sale, such statements being untrue in fact and intended to b made, either with knowledge of their untruth, or with indi ence to their truth or falsehood, or (2) an agreement to make cause to be made statements of opinion as to the value of the such opinions, to the knowledge of the parties to the agreen

not being entertained by the persons alleged to hold them, or an agreement combining the features of (1) and (2). Whether these alternative instances of conspiracy should be presented will usually depend upon the case opened and particularized by the Crown.

The two kinds of conspiracy, or rather the two species of the s kind of conspiracy, must be dissevered for the purpose of ana and direction to the jury. The facts in most cases of " value" representations, however, will often establish a conspiracy to cheat and defraud answering to both the descriptions I have indicated.

I might add that, if one accepted the view of Dr. Harris that a conspiracy to cheat exists when there is an agreement do acts coming within Hawkins' original definition of cheating the two described species of conspiracy to defraud by "value" misrepresentations might not constitute the whole even of limited genus. Brett J.A.'s observation in R. v. Aspinall (1), * may be and probably are others," might be in direct point. Iti clear, however, that the two instances discussed are those most likely to be met with in practice.

In the present case I think the learned Chairman of Quat Sessions should, in the circumstances, have emphasized and di tinguished the two aspects of conspiracy discussed, for they certainly both presented by the evidence of statements made b the accused as to the value of the land sold. Moreover, there Wa evidence of a further type of conspiracy to cheat by ma false statements not as to the value of the land but as to certaiZ

'of the land in the estimate of a prudent purchaser. This third

At the commencement of the summing-up his Honor said : -

"Jn this case the conspiracy charged is apparently that these two men put their heads together, as has been said, and started out deliberately into the country for the purpose of cheating and defrauding various people who have been brought before you (Cogan in particular) of large sums of money by reason of a sort of false pretence, coupled in many eases by a false promise ; getting into their confidence by all the arts of a confidence person, and having obtained their confidence selling them land at a value which, the Crown states, they, at that time, knew was not of that value; and furthermore inducing them to buy at an extravagant value, giving them a promise that within a short time - two or three months - they would either sell the property or hand them back their money, that is to say, cancel the contract."

Tn this passage I think that the words italicized by me in the last

Subsequently, emphasis was again laid on the question of the value of the land. Finally his Honor said : "On the question of their combining the Crown alle;

made up their minds, There are circumstances from which they ask you to come to the conclusion that they did make up their minds to go forth, and by

trick or confidence or whatever you may call it, compel, or urge - or whatever the term may be - induce these various people to believe that land that they said was worth £150 or £200 - that that was the actual value of it - and by that means to do at the least a civil wrong."

The last passage should have been accompanied by a direction as to what would have constituted a "civil wrong.'' What was, no doubt, present to his Honor's mind was proof of the common law ingredients of the tort of deceit, or of such fraudulent misrepre- sentation as would be sufficient to obtain relief in equity. But the jury were not instructed as to these ingredients, and they cannot be presumed to have known them. After the summing-up was con- cluded, Mr. Holman asked for a specific direction as to what false Tepresentations would be required to obtain a civil remedy, but nothing further was added by his Honor.

In the circumstances, therefore, the Supreme Court was justified in quashing the conviction. Had the learned Judges not taken the view they did upon the more fundamental question already discussed, a new trial would probably have been ordered. But judgment of acquittal was entered and Weaver was immediately released. So

'matters of fact the existence of which might have affected the value H- ©. or A.

aspect of the case also required special consideration and treatment. Tue Kise W: Ev

also was Stevens, who did not appeal against his conviction. the application for special leave to this Court, emphasis was la by the learned Solicitor-General upon the embarrassment to t Crown resulting from the opinion of the Supreme Court as to tl identity between a conspiracy to cheat and a conspiracy to comm the crime of false pretences. It was stated that the Crown anxio desired a decision from this Court upon this important qu law. It was also said that in no case would criminal pri for the same transactions be taken against Stevens.

In view of all these circumstances the opinion has been a at by this Court that it would not be proper to order a new t for conspiracy to defraud as against Weaver alone. '

A question was raised during the appeal as to whether competent for the High Court to hear appeals from judgments the Supreme Court of a State directing the entry of a verdict acquittal in criminal cases, pursuant to State Acts which give of appeal from a jury's verdict of guilty. I am of opinion the High Court has jurisdiction to hear appeals from such judgmen of the Supreme Court of a State. The verdict of acquittal a1 by the Supreme Court as a Court of Criminal Appeal, whate it may be in point of form, differs greatly in substance from original verdict of a jury to whom an accused person has been give in charge upon an indictment and who have acquitted. The jury verdict of not guilty has a special constitutional finality and san which are always regarded as an essential feature of British eri jurisprudence.

The legal position, as I appreciate it, may be summarized a follows : - ;

(1) The High Court has jurisdiction to hear and determine appea from judgments of the Supreme Courts of a State (sitting as Courts' Criminal Appeal), notwithstanding that such judgments direct tl entry of a verdict of acquittal in place of the jury's verdict of g

(2) The offence of conspiring to cheat and defraud pi of land is quite distinct from the offence of conspiracy to obt money from such purchasers by false pretences, and many of | legal considerations applicable to the former offence have little or1 application to the latter.

(3) A conspiracy to cheat and defraud may be established by H- ©. or A.

_ proof of an agreement to do acts in relation to purchasers of land

which, if done, would enable the latter to obtain civil relief on the basis of fraud either at law or in equity.

(4) It is true that the legal result of proposition 3 is that the law punishes the parties to an agreement to do certain things although, if those things were done by an individual without prior agreement, he would not be exposed to punishment; but this result follows because the law of criminal conspiracy attaches its sanction to certain agreements as such, and agreements require the assent of at least two persons.

(5) It is clear from the history of the crime of conspiracy to cheat and defraud that, early in the 18th century, the English common Jaw Courts had finally decided, in accordance with a principle of public policy adopted from the practice of the Court of Star Chamber

during the 17th century, that a number of combinations (including

a combination to cheat) were punishable as conspiracies and the

_gist of the offence lay in the combination itself.

(6) From early in the 18th century an agreement to cheat was punished as a conspiracy although

(a) there was no agreement to use or actual user of " false public tokens " (the use of which was punishable in an individual as a common law "cheat "'), and

(b) there was no agreement to use or actual user of " false privy tokens " (the use of which was punishable in an individual by the statute of 33 Hen. VIII. as a "cheat"), and

(c) the statute of 1757 creating the offence of "false pretences" had not been passed, and

(d) even had such statute been in force, what was agreed to be done by the conspirators would not have come within the statute.

(7) There is thus a definite historical basis for propositions 2, 3 and 4, supra, and their validity is also supported by an analysis of the cases decided during the 19th century.

(8) It is true that the evidence given in the course of a particular

"case of conspiracy to cheat and defraud may incidentally prove

or tend to prove the commission by one or more of the accused of

H.C. or A. the felony of false pretences. But the evidence is not inadmi

ies on that account, and it is entirely a matter for the discretion of

Tue Kiya Crown Authorities whether or not a charge of false pretences is Wate be laid against the individuals concerned, in addition to or in of the indictment for conspiracy to cheat and defraud.

(9) In New South Wales, there is statutory warrant for the ab

order such particulars at or before the trial. A mere referen

the depositions of witnesses taken at the preliminary minis

inquiry by a magistrate, will seldom suffice for this purpose.

(10) A conspiracy to cheat and defraud may, in cases otherwi

appropriate, be based upon evidence of misrepresentation as to th

value of land or other property offered for sale. In such

convictions may lawfully proceed upon a finding by the jury #

(a) there was an agreement to ascribe to the property off

for sale an actual value, the representations being u

in fact and the parties to the agreement either knowii

such untruth or (being unaware of their truth or untruth

agreeing to ascribe value, not caring whether the sentations were true or false, or

(b) there was an agreement that statements of opinion as 1

actual value were to be made, merely as expressions

opinion of salesmen (including parties to the agreemen

who, to the knowledge of the parties to the agreement, di

Because of the special circumstances already referred to, the orde

In the circumstances the order of the Cow Criminal Appeal allowed to stand.

Solicitor for the appellant, J. V. Tillett, Crown Solicitor for }

South Wales. 7 Solicitors for the respondent, 7. Marshall, Marks & Jones. -