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Court of Criminal Appeal 7 September 2000

Boscolo v Regina

[2000] NSWCCA 356

Fraud & dishonesty
APPEAL AGAINST CONVICTION AND SENTENCE CRIMES ACT S300 S.305 CRIMES ACT "PREJUDICE" FALSE INSTRUMENT WITHDRAWAL OF CAVEAT PROPERTY IN WESTERN AUSTRALIA

Citation: Boscolo v Regina [2000] NSWCCA 356
Court: NSW Court of Criminal Appeal
Date: 7 September 2000
Judge(s): Meagher JA, Grove J, Kirby J

Background

The appellant had been convicted in the District Court on two counts of using a false instrument under s 300(2) of the Crimes Act 1900 (NSW). The charges arose from two caveat withdrawal forms lodged with the Western Australian Department of Land Administration. The forms bore what appeared to be the signature of the appellant's then husband, who maintained his signatures had been forged. The caveats had been placed over two Western Australian properties registered in the appellant's name but purchased with her husband's money.

The withdrawal of the caveats cleared the titles for mortgaging. The appellant subsequently borrowed against both properties. A jury could not agree on the two charges of making a false instrument, but returned guilty verdicts on the two using charges. The appellant was sentenced to two periods of six months periodic detention.

On appeal, the appellant challenged both the territorial jurisdiction of the New South Wales courts and the sufficiency of proof of an essential element of the offence, namely "prejudice" to another person.

  • Whether a sufficient geographical nexus existed between the use of the alleged false instruments (in Western Australia) and New South Wales to ground the prosecution in this state.
  • Whether the acceptance of the withdrawal forms by the Western Australian Department of Land Administration caused "prejudice" to any person within the exclusive definition in s 305 of the Crimes Act 1900 (NSW).

Decision

On the territorial nexus question, the Court of Criminal Appeal found that a sufficient nexus to New South Wales did exist. The appellant lived in a Sydney suburb with six children, and all correspondence between her and the relevant lending companies was conducted through her Sydney address. The court rejected the suggestion that the withdrawal forms might have been posted from another jurisdiction as fanciful in the circumstances.

The more substantial issue was whether the required element of "prejudice" had been established. Section 300(2)(b) requires that the false instrument be used with the intention of inducing another person to do or not do some act to that or another person's "prejudice." Section 305 provides an exhaustive definition of prejudice, confining it to specific forms of property loss, deprivation of earning or financial opportunity, or consequences flowing from acceptance of the false instrument in connection with a person's duties.

The Crown's case at trial had focused on the proposition that the withdrawal of the caveats deprived the husband of the opportunity to be notified. Meagher JA observed that this is not a form of prejudice listed in s 305. He also noted the practical difficulty in the Crown's position: a department receiving what appears to be a valid withdrawal request from the caveator would have no reason to notify that same caveator of anything. Further, by the time these events were considered, the Family Court had dismissed the husband's appeal, meaning he had held no legal or equitable interest in either property from 3 August 1994.

The Court found that the Crown had failed to prove an essential element of the offence. Absence of notification did not constitute prejudice under the statutory definition, and the loss of whatever protection the caveats previously afforded did not fall within any of the categories enumerated in s 305. Both Grove J and Kirby J agreed with Meagher JA's reasons.

Orders Made

  • Appeal allowed.
  • Convictions and sentence quashed.

Key Takeaways

  • Under s 300(2) of the Crimes Act 1900 (NSW), a conviction for using a false instrument requires proof of an intention to induce another person to act to someone's "prejudice" as exclusively and exhaustively defined by s 305.
  • The definition of "prejudice" in s 305 is a closed list: deprivation of notification rights, or loss of the protection a caveat affords, does not fall within it.
  • A sufficient territorial nexus to New South Wales can be established even where the relevant acts took effect in another jurisdiction, provided the evidence supports the conclusion that the conduct originated in New South Wales.
  • Where a Crown case at trial rests on a form of alleged prejudice not recognised by the governing statutory definition, the conviction cannot stand, as an essential element of the offence remains unproven.
  • The Court of Criminal Appeal entertained the geographical nexus argument despite it not having been raised at trial, though it ultimately resolved the appeal on the prejudice ground.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 300(1) (making a false instrument)
- Crimes Act 1900 (NSW), s 300(2) (using a false instrument)
- Crimes Act 1900 (NSW), s 305 (definition of "prejudice")

Cases cited: No cases were cited in the judgment as provided.