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10
Court of Criminal Appeal 28 July 2011

Flack v R

[2011] NSWCCA 167

Fraud & dishonesty
CRIMINAL LAW CONVICTION APPEAL EXTENSION OF TIME TO APPEAL REFUSED

Citation: Flack v R [2011] NSWCCA 167
Court: NSW Court of Criminal Appeal
Date: 28 July 2011
Judge(s): McClellan CJ at CL, Hidden J, Johnson J

Background

The applicant was convicted by a jury of five counts of obtaining a financial advantage by deception under s 178BA of the Crimes Act 1900 (NSW). The Crown alleged that the applicant and a co-accused made false representations to five financial institutions, claiming that specific buses (identified by engine and chassis numbers) existed, in order to obtain hire and asset purchase finance totalling over $1.5 million. No such buses existed.

At trial, the Crown called officers from each of the financial institutions. Each officer gave evidence that their institution would not have approved the relevant loan had it known no bus existed. The applicant's trial counsel mounted a no-case submission, arguing that none of the officers who gave evidence were the individuals who had originally approved the loans, and that there was therefore no evidence that the deception had actually caused any particular decision-maker's mind to be deceived.

The trial judge rejected the no-case submission and declined to direct verdicts of acquittal. The jury convicted the applicant on all five counts. The applicant then sought an extension of time to appeal against conviction, relying on the single ground that the trial judge had erred in refusing to direct an acquittal.

  • Whether the trial judge erred in rejecting the no-case submission and refusing to direct verdicts of acquittal on all five counts
  • Whether the Crown was required to call the specific officer who approved each loan in order to establish that the deception caused the financial advantage obtained
  • Whether, in the absence of such witnesses, there was sufficient evidence from which the jury could draw an inference of causal connection between the deception and the financial advantage
  • Whether, given the significant delay and the proposed ground's merits, an extension of time to appeal should be granted

Decision

The Court of Criminal Appeal unanimously refused the application for an extension of time, finding the sole ground of appeal to be without merit. Johnson J (with McClellan CJ at CL and Hidden J agreeing) held that the trial judge had been correct to reject the no-case submission.

The central legal principle in issue was the causal connection required for an offence under s 178BA: the Crown must establish that the deception caused the financial advantage. The applicant argued that, because the Crown had not called the actual loan approver in each case, no evidence established that the relevant decision-maker had been deceived into approving the loan. The Court rejected this argument, drawing on the English and Australian authorities including R v Lambie [1982] AC 449 and National Commercial Banking Corporation of Australia Limited v Batty (1986) 160 CLR 251.

Those authorities establish that, where an inference of inducement is irresistible on the evidence as a whole, it is not necessary for the prosecution to call the specific individual whose mind was allegedly deceived. The documents themselves, together with the institutional evidence from authorised representatives of each lender, were capable of supporting such an inference. In R v Lambie, Lord Roskill had noted that requiring the prosecution to produce a specific witness who recalled the precise transaction would allow guilty parties to escape conviction in cases where no-one could reasonably be expected to remember a particular transaction in detail.

Applying those principles, the Court found that the combination of the documentary evidence and the evidence from each financial institution's representative created a clear case to answer on all five counts. The trial judge committed no error in declining to direct acquittals, and the proposed ground of appeal lacked sufficient merit to justify an extension of time.

Orders Made

  • The application for an extension of time to appeal against conviction was refused.

Key Takeaways

  • A prosecution for obtaining financial advantage by deception under s 178BA of the Crimes Act 1900 requires proof of a causal connection between the deception and the financial advantage obtained, but this does not invariably require calling the specific individual whose mind was deceived.
  • Where an inference of inducement is irresistible from the documentary evidence and the evidence of authorised institutional representatives, a jury may properly be left to draw that inference without direct testimony from the original approving officer.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the principles in R v Lambie and National Commercial Banking Corporation of Australia Limited v Batty apply to NSW fraud offences of this kind.
  • Sufficient evidence existed in the Crown case, at the close of that case, for each of the five counts to be left to the jury, making the no-case submission untenable.
  • The Court of Criminal Appeal reiterated that applications for an extension of time to appeal face a demanding test, and that the merits of the proposed ground are a central consideration when assessing whether the extension should be granted.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 178BA
- Crimes Amendment (Fraud, Identity and Forgery Offences) Act 2009 (NSW)

Cases
- McCall v R [2010] NSWCCA 174
- Darwiche v R [2011] NSWCCA 62
- R v Ho; R v Szeto (1989) 39 A Crim R 145
- R v Flack; R v Grindrod [2009] NSWDC 94
- R v Serratore [1999] NSWCCA 377; 48 NSWLR 101
- R v Stanhope (NSWCCA, unreported, 10 September 1987)
- R v Clarkson [1987] VR 962
- R v King [1987] 1 QB 547
- National Commercial Banking Corporation of Australia Limited v Batty [1986] HCA 21; 160 CLR 251
- R v Lambie [1982] AC 449