Citation: R v SKL; R v JY; R v XGL [2019] NSWCCA 43
Court: NSW Court of Criminal Appeal
Date: 5 March 2019
Judges: Hoeben CJ at CL; Adamson J (principal judgment); Button J (separate concurrence)
Background
Three respondents faced 21 counts of fraud under s 192E(1)(b) of the Crimes Act 1900 (NSW), arising from an alleged cheating scheme at The Star Casino in Sydney. The respondent dealer, SKL, was employed as a Baccarat dealer. The Crown alleged that SKL signalled the identity of forthcoming cards to co-respondents XGL and JY (and another player) using hand signals or a mobile phone, allowing the players to place substantially larger bets when they held an advantage. The total alleged to have been dishonestly obtained exceeded $3 million.
At first instance in the District Court, Whitford SC DCJ directed acquittals on all counts. The trial judge's central reason was that the Crown had not called any witness to give evidence of actually being deceived by the respondents' conduct. No casino supervisor or other representative testified that they were misled.
The Director of Public Prosecutions appealed pursuant to s 107 of the Crimes (Appeal and Review) Act 2001 (NSW), which permits a Crown appeal against a directed acquittal on a question of law alone.
Legal Issues
- Whether proof of "deception" under s 192E(1)(b) of the Crimes Act 1900 necessarily requires establishing that the deception operated on the mind of an identified natural person.
- Whether the Crown was required, as a matter of law, to call a representative of the casino to give direct evidence of having been deceived.
Decision
The Court of Criminal Appeal held, by unanimous agreement, that the trial judge had erred on both questions of law. Adamson J delivered the principal judgment, with Hoeben CJ at CL agreeing and Button J agreeing with one qualification.
On the first question, the Court held that deception under s 192E(1)(b) does not require the Crown to identify a specific natural person whose mind was actually operated upon by the deception. Where the alleged victim is an entity such as a casino, the offence can be established by proving that the deception was practised upon those acting on behalf of the entity, and this can be done by inference from circumstantial evidence. The casino's supervisors, who were watching the games live and reviewing CCTV footage, must on the Crown's case have been deceived into believing the games were being played in accordance with the rules; that inference was available without calling those supervisors to testify.
On the second question, the Court confirmed that the element of deception does not require direct evidence from a representative of the deceived entity. The Crown was entitled to rely on a wholly circumstantial case. The CCTV footage, evidence of the betting patterns, and evidence about the casino's supervision arrangements were capable of supporting the inference that casino supervisors had been deceived. Requiring live testimony from supervisors who could only confirm what the CCTV already showed would have added nothing of substance.
Button J agreed with all of Adamson J's conclusions but declined to express a view on the separate proposition that a representation is not an essential element of deception. His Honour preferred to leave that question open, observing that on the facts the respondents were in any event impliedly representing by their conduct that they were playing the game in accordance with its rules.
Orders Made
- Appeal allowed.
- Verdicts of acquittal quashed.
- New trial ordered.
- Matter listed for mention before the District Court on 15 March 2019 at 9:30 am.
Key Takeaways
- Under s 192E(1)(b) of the Crimes Act 1900 (NSW), the Crown is not required to identify a specific natural person whose mind was actually operated on by the deception; where the victim is an entity, the element of deception can be established inferentially.
- A directed acquittal solely because no individual witness testified to being deceived was, in the Court's view, an error of law where the Crown was running a circumstantial case.
- The Court of Criminal Appeal confirmed that the whole of the Crown's case on deception can be built from circumstantial evidence, including CCTV footage and betting pattern analysis, without direct oral testimony from representatives of the deceived entity.
- Where concealment of cheating is itself the alleged deception, the inference that supervisors monitoring a game were deceived into believing it was being played honestly is capable of being drawn from evidence about the supervisory arrangements and the subtlety of the conduct.
- Button J's separate concurrence leaves open the theoretical question of whether a representation is always an essential element of deception, though his Honour found that question unnecessary to resolve because an implied representation arose on the facts in any event.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 192B, 192E
- Crimes (Appeal and Review) Act 2001 (NSW), ss 107, 111
- Criminal Procedure Act 1986 (NSW), ss 166, 168
- Casino Control Act 1992 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 58
Cases
- In re London and Globe Finance Corporation Limited [1903] 1 Ch 728
- Macleod v The Queen (2003) 214 CLR 230; [2003] HCA 24
- Moore v R [2016] NSWCCA 260; (2016) 262 A Crim R 590
- Gould v Vaggelas (1985) 157 CLR 215; [1985] HCA 75
- National Commercial Banking Corporation of Australia Limited v Batty (1986) 160 CLR 251; [1986] HCA 21
- Reg v Lambie [1982] AC 449
- R v Charles [1977] AC 177
- R v Clarkson [1987] VR 962
- R v Jenkins (2002) 6 VR 81; [2002] VSCA 224
- R v PL [2009] NSWCCA 256
- Flack v R [2011] NSWCCA 167
- Duncan v Independent Commission Against Corruption [2016] NSWCA 143