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District Court 22 October 2019

R v Fletcher

[2019] NSWDC 587

Fraud & dishonesty
CRIMINAL LAW SECTION 192E(1)(B) CRIMES ACT 1900 DIRECTED ACQUITTAL KEY WORDS ONLINE BETTING BOOKMAKERS OBTAIN FINANCIAL ADVANTAGE

Citation: R v Fletcher [2019] NSWDC 587
Court: District Court of New South Wales
Date: 22 October 2019
Judge: DCJ Beckett

Background

The accused was a professional punter who held accounts with two corporate bookmakers, Sportingbet and Bet365, both licensed in the Northern Territory. During the relevant period, his own accounts had either been closed or restricted, apparently because the bookmakers considered him high risk given his professional status and winning record.

Between September 2012 and March 2013, the accused placed bets on horse and greyhound races using accounts registered in the names of three other people. These were known in the industry as "bowler" accounts: arrangements where one person uses another's account to avoid placing bets under their own name. The accounts had been set up using the account holders' personal details and identification documents, and the accused had sole or near-sole control of them.

The Crown alleged that by operating the accounts as though he were the registered account holder, the accused deceived the bookmakers into allowing him to place bets. He was charged with 78 counts under s 192E(1)(b) of the Crimes Act 1900 (NSW), five alleging he dishonestly obtained a financial advantage (the winning amounts) and the remainder alleging he caused a financial disadvantage to the bookmakers (the winning margins paid out).

  • Whether the accused's use of accounts registered in others' names constituted a deception within the meaning of s 192E(1)(b) of the Crimes Act 1900 (NSW).
  • Whether, even accepting the deception, that deception was the effective cause of the financial advantage obtained or the financial disadvantage caused.
  • Whether, on the evidence at its highest, a jury could properly return a verdict of guilty on any of the 78 counts, warranting a directed acquittal under the principles in Doney v R.

Decision

DCJ Beckett directed acquittals on all 78 counts. The critical issue was not whether deception occurred, but whether the deception caused the financial advantage or disadvantage alleged. The court found a fundamental break in the causal chain between the accused's conduct and the financial outcome.

What the accused obtained through his deception was an opportunity to place a bet. The financial advantage (a winning payout) only materialised if and when the animal he backed actually won the race. Because there was no evidence the accused had any influence over the race result, the deception gave him only the chance to potentially win, not the win itself.

The court drew on the distinction recognised in authorities such as R v Button and R v Lambassi, where the defendant had actually cheated in the event itself and thereby directly influenced the outcome. Here, by contrast, the deception operated only as a "step along the way" to a possible financial advantage. The chance to place a bet and the receipt of winnings are separated by an independent contingency entirely outside the accused's control.

The court also noted that the New South Wales offence provision, unlike equivalent provisions in other states, does not extend to obtaining a "benefit" (which might encompass the mere opportunity to wager). Under the NSW legislation, the Crown was required to prove a financial advantage or disadvantage as the direct product of the deception. On the evidence presented, that causal link could not be established on any count.

Orders Made

  • Directed verdicts of acquittal entered on all 78 counts on the indictment.

Key Takeaways

  • A conviction under s 192E(1)(b) of the Crimes Act 1900 (NSW) for dishonestly obtaining a financial advantage by deception requires the deception to be the effective cause of the financial advantage, not merely a step that created an opportunity to later obtain one.
  • Where the financial outcome depends on an independent contingency (such as whether a horse wins a race) entirely beyond the accused's control, the causal connection between the deception and the financial advantage is not established.
  • The District Court distinguished cases such as R v Button and R v Lambassi, in which defendants had directly manipulated the event on which the bet was placed, observing that direct influence over the outcome is a significant factor in establishing causation.
  • The NSW fraud provisions differ from equivalent legislation in Western Australia and Queensland, which extend to obtaining a "benefit." The narrower NSW formulation, requiring proof of a financial advantage or disadvantage, does not capture the mere obtaining of an opportunity to gamble.
  • Applying Doney v R, a directed acquittal is warranted where the evidence, taken at its highest, discloses a defect that would prevent a properly instructed jury from returning a guilty verdict.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 4B, 192B, 192D, 192E(1)(b), 192F (Part 4AA)

Cases
- Doney v R [1990] HCA 51; (1990) 171 CLR 207
- R v Button [1900] 2 QB 597
- R v Clucas [1949] 2 KB 226
- R v Lambassi [1927] VLR 349
- Royall v The Queen (1990) 172 CLR 378
- R v King; R v Stockwell (1987) 1 QB 547
- Moylan v Western Australia [2007] WASCA 52; 169 A Crim R 302
- R v Saba [2013] QCA 275
- Case Stated by Director of Public Prosecutions (SA) (No 2 of 1993) (1993) 70 A Crim R 323
- Gibbs v The Queen (1992) 58 SASR 347
- R v Morris (1997) 98 A Crim R 408
- Ho and Szeto v R (1989) 39 A Crim R 145
- Duncan & Ors v Independent Commission Against Corruption [2016] NSWCA 143
- R v PL [2009] NSWCCA 256
- R v Leung (No 3) [2009] NSWSC 450
- Re Attorney-General's Reference (No 1 of 1983) [1983] 2 VR 410
- R v Harris; R v Turner [1963] 2 WLR 851