Balcombe v De Simoni [1972] HCA 9; (1972) 126 CLR 576

Mathews v R [2001] WASCA 264; (2001) 24 WAR 438

R v English (1993) 10 WAR 355

Re London & Globe Finance Corporation Ltd [1903] 1 Ch 728

Schokker v The Queen [2001] WASCA 84

Lowndes v R [1999] HCA 29; (1999) 195 CLR 665

Vrisakis v Australian Securities Commission (1993) 9 WAR 395

1 The appellant appeals against his conviction on 8 March 2004 in the Court of Petty Sessions at Joondalup of one count of attempted fraud, contrary to s 409(1)(c) of the Criminal Code (WA). For that offence, the appellant was fined $500.

2 The relevant findings of fact made by the court below, which are not contested on this appeal (indeed, the appellant elected not to give evidence in the court below) were as follows:

(1) the appellant had imported a Subaru vehicle into Australia from Japan;

(2) when imported, the vehicle bore a vehicle identification number (VIN);

(3) the appellant had purchased another, damaged Subaru vehicle in Victoria and caused it to be brought to Western Australia;

(4) the appellant replaced the VIN on the imported Japanese vehicle with the VIN from the damaged Victorian vehicle;

(5) the appellant presented the imported Japanese vehicle, with the replaced VIN, to the Warwick Licensing Centre for the purpose of having it licensed in Western Australia.

3 The appellant was charged on the complaint of the respondent that, on 25 June 2003, at Warwick the appellant -

"with intent to defraud by deceit, namely presented a Subaru vehicle for licensing, attempted to gain a benefit for himself, namely a current valid West Australian vehicle licence from the Director General of the Department of Planning and Infrastructure ... "

4 The learned Magistrate found on the facts above that the charge was proven.

5 The appellant now appeals on four grounds, as follows:

"(a) The learned [M]agistrate erred in fact and in law in finding that by presenting the vehicle for examination for the purpose of having it licensed, the appellant thereby represented that the vehicle had an 'Australian vehicle identification number'.

(b) Further and in the alternative, the learned [M]agistrate erred in fact and in law in finding that the making of a representation knowing it to be false is sufficient without anything else to establish an intent to defraud by deceit or fraudulent means within the meaning of section 409 of the Criminal Code, whereas in circumstances in which the relevant representation was held to have arisen by the appellant's conduct, the learned [M]agistrate was required to find whether the appellant knew his conduct gave rise to such a representation in order to determine whether he had an intent to defraud by deceit or fraudulent means.

(c) Further and in the alternative, the learned [M]agistrate erred in fact and in law in that there was no or no sufficient evidence that the appellant had an intent to defraud by deceit or fraudulent means within the meaning of s 409 of the Criminal Code.

(d) Further and in the alternative, the learned [M]agistrate erred in fact and in law in finding that the act of presenting the vehicle for examination for the purpose of having it licensed was sufficient to constitute an attempt to commit an offence against section 409 of the Criminal Code, and in failing to find that it was merely preparatory within the meaning of s4 of the Criminal Code."

6 Each of the appellant and the respondent filed written submissions in the appeal as well as made oral submissions at the hearing. In his oral submissions, counsel for the appellant developed his written submissions in relation to the second and third grounds and relied on his written submissions in relation to the first and fourth grounds. For that reason, I shall deal with the grounds of appeal in the same order.

7 Counsel for the appellant put particular emphasis on the second ground. He contended that the learned Magistrate expressly rejected a submission at trial that the prosecution needed to prove a subjective intent to defraud on the part of the appellant. He contended that the learned Magistrate adopted this position because he erroneously interpreted what was said on this issue by the High Court in Balcombe v De Simoni [1972] HCA 9; (1972) 126 CLR 576 and by the Full Court of this Court in Mathews v R [2001] WASCA 264; (2001) 24 WAR 438, at [17] - [21].

8 It is useful to commence by noting what the Court decided in Balcombe v De Simoni (supra). As the headnote discloses, the respondent was employed as a salesman to go from house-to-house in an endeavour either to sell books or to obtain subscriptions for periodicals for which his employer had the agency. He falsely represented to a householder that he was a student from South Australia selected in a contest for $1000 and an overseas trip to represent the youth of Australia on a goodwill tour. He thereby induced her to agree to buy a book which she did not want and to pay the respondent $6.50 as the price of the book. She was given a receipt and was told that the book would be delivered to her at a later date. The respondent was convicted on a charge of obtaining $6.50 in money by a false pretence with intent thereby then to defraud contrary to s 409(1) of the Criminal Code (1913-1969) (WA). It was held by the majority of the court (McTiernan, Menzies and Gibbs JJ, Barwick CJ and Walsh J dissenting) that the only possible conclusion from the evidence was that the respondent made false pretences with the intention of inducing the householder to part with her money, that he had the intention of depriving her of her money by deceit and that he therefore had an intention to defraud. Accordingly, he was rightly convicted.

9 Gibbs J (with whom Menzies J agreed entirely), at 593, adopted what Buckley J had said the phrase "with intent to defraud" means in Re London & Globe Finance Corporation Ltd [1903] 1 Ch 728, at 732 - 733:

"To deceive is, I apprehend, to induce a man to believe that a thing is true which is false, and which the person practising the deceit knows or believes to be false. To defraud is to deprive by deceit: it is by deceit to induce a man to act to his injury. More tersely it may be put, that to deceive is by falsehood to induce a state of mind; to defraud is by deceit to induce a course of action."

10 Gibbs J, at 595 - 596, emphasised that the words "with intent to defraud" have work to do in the statutory context in which they appear. For example, if the words did not appear in the section in issue, it would be enough in a relevant case if the accused made a statement which was false to his knowledge and if the person to whom the statement was made was induced to part with money by reason of such false pretence, and it would be immaterial whether the statement was intended to have that effect. Thus, at 596, Gibbs J concluded:

"What the inclusion of the words 'with intent to defraud' makes necessary is that the accused should have made the false pretence with the intention of inducing another person to part with property. Therefore, if a beggar obtains money by pretending to be blind, and with the intention that the person to whom the pretence is made should be induced by that pretence to give him alms, the offence is committed notwithstanding that the money is used exactly as the person who gave it intended that it should be used, for the relief of the beggar. Similarly, if a man, by pretending to hold a certain position, or to possess certain assets, intentionally induces another to lend him money which he would not otherwise have lent, the former has an intent to defraud, notwithstanding that he intends to use the money for the very purpose for which he says he wants to borrow it."

11 In the case before him, Gibb J noted that the Magistrate made no specific finding that there was an intent to defraud. He noted that ordinarily, if a Judge summing up to a jury omitted to direct them that an actual intent to defraud is a necessary element of the crime, he would be of the opinion that the direction was insufficient. However, in the case before him, the Magistrate, after refusing to accept the denials of the respondent that the representations alleged were made, proceeded to convict the accused and if, consistently with the view he took of the respondent's credibility, the Magistrate was bound to find an intent to defraud, then his conviction ought to be sustained. Gibbs J then, having regard to the evidence, concluded, at 596:

"In my opinion, the only possible conclusion from the evidence is that the respondent made false pretences with the intention of inducing Jina Hasluck to part with her money; in other words, the respondent had the intention of depriving her of her money by deceit and, therefore, had an intent to defraud. The magistrate's conclusion was in my opinion correct."

12 To similar effect, in Matthews v The Queen (supra), Burchett AUJ (with whom Malcolm CJ and Steytler J agreed), emphasised that s 409(1) of the Criminal Code itself contains a mental element which may involve a question when an accused person has a belief in the existence of a state of things, by virtue of the words "with intent to defraud". His Honour, at [17], adopted what Professor Glanville Williams stated in his Criminal Law, the General Part (2nd ed, 1961) to the effect that the question of intent to defraud "is essentially subjective: it is a question of what the accused intended, not of what a hypothetical reasonable man would have intended, though the intent may be inferred from behaviour."

13 Accordingly, Burchett AUJ, at [19], observed that the proper course for a trial Judge is to identify the knowledge, belief or intent said to reveal an intent to defraud and then to instruct the jury to decide whether the accused had that knowledge, belief or intent and, if so, to determine whether, on that account, what was relevantly done by the accused was so done with an intent to defraud.

14 Counsel for the appellant took the Court to a number of passages in the transcript and in the Magistrate's ultimate findings which he contended showed that the Magistrate had misapplied the true meaning of "intent to defraud" in the context of the offence charged. Counsel noted that at page 44 of the transcript counsel who appeared for the appellant at the trial clearly stated to the Magistrate that the test for deceit "is purely a subjective test", but that his Worship had some doubts that Balcombe v De Simoni (supra) stood for any such proposition. Counsel drew particular attention to what his Worship said, at page 63 of the transcript, in response to a no case submission made by counsel for the appellant at the trial to this effect:

"In this instance, the defendant by presenting the vehicle in the state it was, knowing that he had altered the vehicle identification number, made a misrepresentation. To misrepresent the truth of that matter, whether it's intentional or not, is as I understand the law as set out in Balcombe and De Simoni sufficient to establish that there was an intent to defraud by making that misstatement of fact."

Counsel drew particular attention to the Magistrate's reference to "whether it's intentional or not" as indicating that his Worship did not apparently consider that a subjective intent needed to be found on the evidence.

15 At page 74 of the transcript, the issue was again raised by counsel for the appellant at the trial. Counsel again suggested that there needed to be demonstrated a subjective intent not an objective intent and that there was no evidence as to the former. His Worship again made reference to Balcombe v De Simoni and stated:

"But that's what Balcombe and De Simoni says you don't do. Barwick in his dissenting decision said there had to be something other than the making of an incorrect statement for there to be an intent to defraud ... The majority - I think Gibbs was the leading judge - said 'No', the statement if there is a misstatement, if there is an untrue statement - - that constitutes an intent to defraud without anything else."

16 At transcript page 75, counsel for the appellant at trial also made reference to Mathews v R (supra) in support of his submission, to which the Magistrate responded by stating that he was quoting from Balcombe v De Simoni (supra) and what Gibbs J there said. Further, at page 75 of the transcript, the Magistrate observed:

"I don't have any evidence that he honestly believed - - if there was representation, and you say there wasn't, I don't have any evidence from the defendant that he honestly believed that what he was saying was true. That can't apply.'

His Worship then referred to Balcombe v De Simoni again.

17 In finding the appellant guilty as charged, the Magistrate, at transcript page 77, first stated:

"It is my view the misstatement of fact by the defendant in presenting the vehicle with that vehicle identification number on it, the representation that was made by him presenting it in that form, was false. He knew it to be false."

Then at transcript pages 78 - 79, his Worship added:

"For those reasons I am satisfied that the prosecution have proved to the necessary degree that there was a presentation of the vehicle as alleged. In doing so there was an attempt to gain a benefit by the defendant, the completion of the contract he had entered into, and by obtaining a West Australian vehicle licence. I am satisfied and find as a fact that the defendant, by producing the vehicle in the state that it was in with the changed vehicle identification number, made a representation which was false to his knowledge.

It is submitted that there needs to be something further - that is, something further to establish that there was an intent to defraud by the defendant - - by the defendant in so doing, As I understand the decision in Balcombe and De Simoni the making of the representation knowing it to be false is sufficient without anything else to establish that there was at the material time an intent to defraud. It is further submitted - no, I'll leave that. Given my understanding of the decision of the law in relation to this particular matter on the facts as I've found them to be, I'm satisfied there was an intent to defraud; I'm satisfied that the prosecution have proved the charge to the necessary degree."

18 The respondent accepts that at trial, to prove that the appellant had an intent to defraud, the prosecution had to establish that the appellant had intent to gain property by deceit.

19 Counsel for the respondent emphasises the ultimate finding made in his reasons by the learned Magistrate that the appellant made the representation concerning the VIN "knowing it to be false" and that was "sufficient without anything else to establish that there was at the material time an intent to defraud".

20 Counsel for the respondent submits that, in other words, in the circumstances of the case the learned Magistrate properly inferred the relevant intent from an assessment of the appellant's behaviour. He contends the learned Magistrate did not expressly reject the submission that there needs to be a subjective intent to defraud on the part of the appellant.

21 In my view, taken as a whole, the Magistrate's understanding of the principle that Balcombe v De Simoni (supra) stands for was probably flawed. The headnote makes clear, and as Gibbs J concluded, on the particular evidence before the Court in that case "the only possible conclusion" from the evidence was that the respondent made false pretences with the intention of inducing the householder to part with her money. Thus, the intent to defraud could be inferred from the circumstances. But there must still be an intent to defraud and, as the Full Court explained in Mathews v R (supra), the question of intent to defraud is essentially subjective. What Balcombe v De Simoni (supra) demonstrates is that there are occasional cases where the evidence led by the prosecution or otherwise given on behalf of the defence does not go so far as to show what an accused or a defendant actually thought or said when carrying out certain acts, or why he did what he did, but where the facts, in a sense, speak for themselves and from which the relevant intent of the defendant may be inferred.

22 Where, however, more than one conclusion might reasonably be drawn from the evidence as to whether or not an accused person or a defendant had an intent to defraud, then it will not be possible or permissible simply to draw an inference that the relevant intent existed merely because in a given case a statement was made and the statement has subsequently been demonstrated to be false. In other words, the mere falsity of a statement made does not establish, of itself, that the person making it had, in a relevant case, an intent to defraud. In such a case, something more, indeed, is necessary by way of evidence to enable the finder of fact (the jury or in this case the Magistrate) to form the relevant conclusion and properly convict an accused person or defendant.

23 In this case, it is put to me by counsel for the appellant that the learned Magistrate did, indeed, apply the wrong test in approaching the question of proof of intent to defraud. Counsel for the respondent, in effect, suggests that, while much of what his Worship said bespeaks a misunderstanding of the test on his part, in the event he applied Balcombe v De Simoni, in the sense that his Worship had regard to the whole of the evidence and must be taken to have concluded that, on the evidence, only one conclusion was open to him and that is that the appellant had the relevant intent to defraud at the time he presented the vehicle with the false VIN at the Warwick Licensing Centre for registration under the law of this State.

24 All in all, I am persuaded by the submissions made on behalf of the appellant that the learned Magistrate erred in posing the test in the way that he did. It would have been correct for the Magistrate to have observed that a subjective intent to defraud must be proved on the evidence before the charge against the appellant could be sustained, but that, in an appropriate circumstance, an intent to defraud may be established by reference to the objective evidence on the basis that it is the only possible conclusion to be drawn from the evidence. However, the Magistrate did not expressly approach his task on this basis.

25 Counsel for the appellant and the respondent both recognised that, even if the Court were to uphold ground 2 of this appeal, it is then open to the Court to consider whether, on the evidence before the learned Magistrate, and applying the correct test, the prosecution nonetheless proved its case beyond reasonable doubt. The third ground, in substance, goes to this issue and I now turn to it.

26 Counsel for the appellant contends there is no or no sufficient evidence of the appellant's intent to defraud by deceit or fraudulent means within the meaning of s 409 of the Criminal Code.

27 In putting this submission, the appellant says that, having regard to the evidence adduced by the prosecution at trial:

(1) there was no evidence the appellant had been asked about the VIN prior to the inspection of the vehicle or at all;

(2) there was no evidence the appellant was asked whether the VIN was an "Australian" VIN and there was also no evidence as to what an "Australian" VIN is, or whether such a thing even exists;

(3) there was no evidence as to the nature or significance of a VIN in the regulatory scheme, nor of the relevance of the fact that a vehicle had a different VIN prior to being licensed; nor was there evidence of what the appellant was told, or otherwise knew, in that respect;

(4) there was no evidence as to what documents, if any, the appellant had lodged in relation to the examination or any application for a licence;

(5) there was virtually no evidence as to the steps involved in the licensing process. The only evidence was that of Mr Allan Jenner, that: it was a two-stage process; the inspection was the first stage; and the inspection was a "roadworthy check". Mr Jenner agreed that he was "involved in the initial introductory stage of the examination". There was no evidence as to what the second stage involved; and

(6) there was no evidence as to what the appellant was told or otherwise knew as to the point in the licensing process at which issues as to the VIN would normally arise.

28 Additionally, there was positive evidence the vehicle was not stolen.

29 The appellant thereby contends that the evidence suggests the question of the VIN was immaterial to the licensing process that the appellant had elected to undertake in respect of the vehicle. At least, counsel for the appellant says that this Court should not draw an inference of intent to defraud unless other reasonable inferences are not open. Plainly, that is so.

30 Counsel suggests there are, in substance, two other inferences reasonably open on the evidence which are not consistent with the appellant having had an intent to defraud, namely:

(1) that the appellant believed the inspection of the vehicle he presented was the first stage of a process going to the roadworthiness of the vehicle. He says this is open having regard to Mr Jenner's evidence referred to above; or

(2) the appellant had no particular belief about the relevance of the prior vehicle identification number he had removed and replaced with the Japanese vehicle's vehicle identification number.

31 However, counsel for the respondent contends that there was uncontested and unambiguous evidence before the Magistrate from which he could be satisfied beyond reasonable doubt that the appellant had the necessary intent to defraud. Counsel draws attention to the video record of interview in which the appellant admitted that he replaced the VIN for the purpose of licensing the vehicle, that he knew that it was wrong to do so in Victoria, but was unsure of the situation in Western Australia, and that he took the vehicle to the licensing centre to get the vehicle registered.

32 Counsel for the respondent submits that the only reasonable conclusion to be drawn from the evidence is that the appellant knowingly made a false representation with the intention of inducing the licensing authority to grant a licence for the vehicle, that is to say, the appellant had the necessary intent to defraud.

33 In my view, the submissions of the respondent must be accepted.

34 The evidence taken as a whole plainly suggests that the appellant understood that, by presenting the vehicle for registration, the relevant authorities would inspect the vehicle, including the VIN and, if satisfied, cause the vehicle to be licensed under the law of Western Australia with that number. The suggestion made by the appellant's counsel that, on the evidence of Mr Jenner, there was a "two stage" process from which it may reasonably be inferred that the VIN was not immediately relevant during the first stage of the process, and that the appellant (by inference) had only presented the vehicle for consideration as part of the first stage of the process, is without any substantive evidentiary support. It may be, as a matter of the practice adopted by the authorities, as explained by Mr Jenner, that the roadworthiness of a vehicle is checked as part of the licensing process, but that is not to say that the whole of the inspection process ignores the VIN. No matter how one looks at the evidence as a whole, the VIN was obviously material to the licensing process. There is nothing that reasonably suggests that the process, including inspection of the vehicle, that leads to the licensing of the vehicle in circumstances such as those where the appellant presented the vehicle for licensing, is broken down into discrete processes such that the appellant had or could have had some belief that the VIN was immaterial to the licensing process.

35 Having regard to the relevant findings of fact made by the Magistrate set out above, I would conclude that the only possible conclusion open is that the appellant presented the Subaru vehicle for licensing and attempted to gain a benefit for himself, namely, a current valid Western Australian vehicle licence for the vehicle, as alleged in the complaint, with intent to defraud by deceit.

36 In these circumstances, I consider that the conviction in fact recorded by the Magistrate was correctly recorded.

37 So far as the first ground of appeal is concerned, the appellant contends that there was no evidence that the appellant made any express statement or representation in relation to the VIN.

38 The appellant says that the evidence does not permit an inference of an implied representation, at least to the required standard of proof, having regard to the state of the evidence the appellant contends for and as set out above in relation to the third ground.

39 The respondent contends, on the other hand, that it is well established that fraud or deceit may be practised by conduct not involving any written or oral representation: Schokker v The Queen [2001] WASCA 84 per Parker J at [38]. In the event, counsel for the appellant does not quibble with that proposition.

40 On all the evidence, I agree with the submission put by counsel for the respondent that it was open to the learned Magistrate properly to find that, by presenting the vehicle for licensing, having changed the VIN, the appellant made a representation concerning the relationship of that number to the rest of the vehicle presented as at the date of its manufacture. This representation was false to the knowledge of the appellant and, ultimately, this satisfied the element of deceit alleged. The substituted VIN constituted a constant false representation to the licensing authority as to the true identity of the vehicle.

41 The appellant further contends that the Magistrate erred in fact and in law in finding that the act of presenting the vehicle for examination for the purpose of having it licensed was sufficient to constitute an "attempt" to commit an offence against s 409 of the Criminal Code when he should have found that it was merely "preparatory" within the meaning of s 4 of the Code.

43 An "attempt" is defined by s 4 of the Criminal Code as involving three elements, comprising: (1) the intention to commit an offence; (2) beginning to put that intention into effect by doing more than a preparatory act; and (3) non-fulfilment of the intention: R v English (1993) 10 WAR 355.

44 Counsel for the appellant says that facts (1) to (6) set out above under the heading "Third Ground" are relevant to this issue and that the only evidence from a vehicle examiner was that of Mr Jenner, referred to above, who stated that he was "involved in the initial introductory stage of the examination".

45 However, the evidence found by the Magistrate all goes to this question. The evidence, briefly to repeat it, was that:

(1) the appellant purchased the shell of a vehicle from Japan;

(2) the appellant purchased another vehicle of the same make from Victoria;

(3) the appellant removed the VIN from the Japanese vehicle and replaced it with the VIN from the Victorian vehicle;

(4) the appellant took the Japanese vehicle with the "new" VIN to the licensing centre for the purpose of licensing;

(5) the vehicle so presented was examined as part of the licensing procedure;

(6) an employee of the licensing centre suspected that the VIN had been replaced, the licensing procedure ceased and the police were called to investigate.

46 These acts, in combination, coupled with an intention to defraud, which I have already found to exist, constitute an attempt to gain a benefit, namely, the vehicle licence. The appellant's actions were immediately connected with and sufficiently proximate to the commission of the offence for the Magistrate properly to have concluded that his acts were not merely "preparatory" in terms of s 4 of the Criminal Code and indeed involve an attempt to commit the offence alleged.

47 For the reasons set out above, I consider the appeal must fail.

• Introduction
• Second ground
• Third ground
• First ground
• Fourth ground
• Conclusion