Bovelt v Lenehan [1973] PNGLR 454 (30 November 1972)

[1973] PNGLR 454

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

AL BOVELT

V

PETER JOHN LENEHAN

Lae & Port Moresby
Frost SPJ

16 November 1972
30 November 1972

APPEAL - Appeal from magistrate - Function of appellate court - Test to be applied.

CRIMINAL LAW - Obtaining goods by false pretences with intent to defraud - Intent to defraud - Criminal Code (Queensland adopted), s. 427[dxvii]1.

Before an appellate court can set aside the conviction of a magistrate, the appellate court must come to the conclusion that a judicial tribunal seized of its duty, cognizant of the essential requirements of proof and properly directed as to the law, was bound to entertain at best a reasonable doubt as to the guilt of the applicant.

Laird v. Mitchell, [1930] St. R. Qd. 38 at p. 43 per Macrossan SPJ followed.

Intent to defraud under the Criminal Code (Queensland adopted) “is established if it is shown that there has been an attempt to obtain some dishonest advantage, or to injure some person, whether the immediate result is to cause loss to that person or not; (Interpretation of Griffith CJ in White v. The King [1906] HCA 53; (1906), 4 C.L.R. 152 at p. 162 adopted and applied.) and it is not necessary to prove an intent to defraud any particular person.

The appellant AB who was the supply manager for M.C. Pty. Ltd. had authority to make certain purchases on behalf of the company for the purposes of its business in return for local purchase orders which he filled in, signed and handed to the supplier. In October 1972 he openly issued one such order for Tutt Bryant in return for minor repairs to and the servicing of his own private motor vehicle to the value of $11.66 including spare parts of $5.36. M.C. Pty. Ltd. had explicitly forbidden the issue of such orders in return for private purchases. There was evidence that an account would have been delivered to AB in accordance with previous practice of the company for the amount of order and that A. B. was entitled to a credit by M.C. Pty. Ltd. for other goods. AB kept his purchases secret as far as M.C. Pty. Ltd. was concerned.

Held

(1) That in the circumstances in acting contrary to the instructions of his employer company in signing a local purchase order for his own purposes, even if his purpose was to obtain a set off against the company, it was an attempt to obtain a dishonest advantage against the company, which he knew he was not entitled to;

(2) e; Thase was accordingly sufficient evidence to support the magistrate’s finding an i tenteto ddfraud had had been established beyond reasonable doubt, and the appeal should be dismissed.

Appeal

This was an appeal against conviction by a District Court magistrate on a charge under s. 427 of the Criminal Code (Queensland adopted) of obtaining goods by false pretences with intent to defraud. The relevant facts and the grounds of appeal appear in the reasons for judgment.

Counsel

D. Reynolds, for the appellant.
B. Ryan, for the respondent.
Cur. adv. vult.

30 November 1973

FROST SPJ: This is an appeal against a conviction by the District Court, Lae on 2nd August, 1972, whereby the appellant was found guilty of obtaining goods by a false pretence with intent to defraud. The informant’s case was that the appellant falsely pretended to an employee of Tutt Bryant (Pacific) Limited that he was a person authorized to sign and issue a local purchase order drawn on the account of Macair Charters Pty. Ltd., and thereby obtained from such employee services and parts, to the value of $11.66, for a Holden sedan which was registered in the name of the appellant, with intent thereby to defraud. The appellant was fined $30 in default of imprisonment.

The appellant, who was the supply manager for Macair Charters Pty. Ltd. had authority to make certain purchases on behalf of the company for the purposes of its business in return for local purchase orders which he filled in, signed and handed to the supplier. The subject of the information in the District Court was the issue by him, on 7th October, 1972, of a purchase order to Tutt Bryant in return, as he admitted, for minor repairs and the servicing of his Holden motor car for his own private purposes.

The information was laid under s. 427 of the Criminal Code, the relevant provisions of which are that any person who by any false pretence and with intent to defraud obtains from any other person anything capable of being stolen is guilty of a crime. Counsel for the appellant did not concede that, upon the weight of the evidence, the appellant had no authority to issue the purchase order in return for a private purchase, but while the appellant maintained that he was given such authority, his evidence differed from that of the accountant, Mr. Walsh, and Mr. Freeman, the general manager of Macair Charters, and as the magistrate, who had the advantage of seeing and hearing the witnesses, preferred the sworn evidence of the prosecution witnesses, his finding that the appellant acted contrary to the explicit instructions of his senior officers cannot be disturbed. Counsel for the appellant then submitted that even if the purchase order was given without authority, the magistrate’s finding that there was an intent to defraud was wrong, and that on the evidence there must have been room for reasonable doubt on this issue. Mr. Reynolds relied strongly on the evidence of Mr. Walsh to the effect that the procedure he would have adopted would be to debit private purchases to the account of the appellant even if, contrary to instructions, the appellant continued to make private purchases by means of a purchase order, so that the appellant must have anticipated that an account would be delivered to him for those items. He also submitted that the appellant openly signed the purchase order in his own name in respect of his own vehicle, which could not have been mistaken for the company’s, so that the fact that it was a private purchase was bound to be detected by Mr. Walsh when he came to check on the purchase orders. There was additional evidence that the appellant claimed that he was owed moneys for aircraft parts brought up from Australia and delivered to Macair which entitled him to a credit from his employer. Also he was dismissed suddenly, nearly two months after the transaction, so that it could not be said that he was contemplating leaving his employment. But the consideration strongly relied upon by counsel for the respondent was that the appellant kept his purchases secret as far as Macair was concerned, making no mention of them to the accountant, and also that Mr. Walsh, as the appellant knew, was two months behind in his accounts.

Before proceeding with these submissions, I should point out that it could not be, and was not, disputed that, on the magistrate’s finding of fact, the false pretence alleged in the information was made out, for in return for the motor car the employee of Tutt Bryant received not what he thought he was getting, that is an authorized purchase order, but something altogether different, that is a purchase order given without authority, R. v. Kritz[dxviii]2; R. v. Procter & Perry[dxix]3. But the conviction can only be supported as to the spare parts of the value of, apparently, $5.36, because services are clearly not a thing capable of being stolen.

As to the intention to defraud, because of the provisions of s. 634 of the Code it is not necessary to prove an intent to defraud any particular person, but the magistrate’s finding was a specific one, that the appellant set out to defraud Macair for the purposes of his personal interest. There was thus no finding of an intention to defraud Tutt Bryant.

Counsel for the respondent’s first submission was that it followed from the magistrate’s finding, that the appellant acted contrary to instructions, that, in giving the unauthorized purchase order, as a necessary consequence there must have been an intention to defraud Tutt Bryant, and that accordingly the appeal must fail because there was no miscarriage of justice. But I do not consider that such an intent should necessarily be inferred, for even if the defrauding was the necessary consequence of the appellant’s act (and there was no evidence that Tutt Bryant was not paid), the appellant may not have known that it would be a necessary consequence, and consequently the mental element would not be proved. See R. v. Abberton[dxx]4. What I have in mind is that, on the facts, the appellant may have thought that, whilst he was acting contrary to instructions, so far as the supplier was concerned, Macair would still meet the purchase order as it had done in the case of previous private purchases made by him. I therefore decline to hold that an intent to defraud Tutt Bryant was proved on the evidence before the court.

The meaning of intent to defraud under the Criminal Code was stated by Griffith CJ as follows—“In my opinion the intent to defraud is established if it is shown that there has been an attempt to obtain some dishonest advantage, or to injure some person, whether the immediate result is to cause pecuniary loss to that person or not.” White v. The King[dxxi]5. The phrase was also considered by the House of Lords in Welham v. Director of Public Prosecutions[dxxii]6. In that case Lord Denning said that the concept was “... not limited to the idea of economic loss, nor to the idea of depriving someone of something of value. It extends generally to the purpose of fraud and deceit. Put shortly, ‘with intent to defraud’ means ‘with intent to practise a fraud’ on someone or other. It need not be anyone in particular. Someone in general will suffice. If anyone may be prejudiced in any way by the fraud, that is enough.”

For this court to set aside the conviction, it is not sufficient that, upon a consideration of the evidence it would have come to a different conclusion or that there appears to be, on any particular finding, oral evidence both ways, for the court will not normally interfere with the finding of a magistrate who had the advantage of seeing and hearing the witnesses. Mr. Ryan for the respondent submitted that I should follow the Queensland authorities which establish the function of the appellate court on an appeal from a magistrate. It was expressed as follows by Macrossan SPJ, “. . . the burden . . . rested on the complainant to prove each essential fact strictly. It was incumbent on the prosecution so to close the ring of proof of guilt round the defendant that each link was established beyond any reasonable doubt. The question of whether there was a reasonable doubt was in the first instance for the magistrate, and before we can set aside the conviction, we must come to the conclusion that a judicial tribunal, seized of its duty, cognizant of the essential requirements of proof, and properly directed as to the law, was bound to entertain at least a reasonable doubt as to the guilt of the applicant.” Laird v. Mitchell[dxxiii]7. This test has been applied in later cases in Queensland (see Kennedy Allen The Justices Acts of Queensland, 3rd ed., pp. 497-498). I was assisted by Mr. Ryan’s submission and consider that the test so laid down should be followed by this court.

The magistrate’s finding that the appellant “while a trusted employee of the company of Macair did set out to defraud the company of Macair” was unsupported by any reasons. The only elaboration of that finding supplied by the magistrate for this court amounts to this, that he had no doubt whatsoever that the appellant had acted contrary to explicit instructions from his senior officers.

Turning to the facts of this case, it seems to me that there were several ways in which it could be submitted that the appellant was seeking to obtain a “dishonest advantage” from Macair. From his failure to inform the company’s officers that he had used a local purchase order for his private purposes, it could be said that he was hoping that, unlikely though it was, the unauthorized purchase would not be detected. A stronger ground was that the appellant intended that his private purchases were to be debited against the claim that he maintained he had against Macair for the spare parts brought up from Australia, and this would be a means of obtaining some set off against that disputed claim. It is also to be noted that whilst he gave two explanations to Inspector Lenehan as to charging the garage account to Macair, viz., that he was doing a lot of work for the company, so he felt entitled to have the car serviced at the company’s expense, and also that he intended to pay for it, at the hearing he said he did not consider that he owed Macair money, and that it was in reverse. As I read the evidence, the appellant at no time said he intended actually to pay Macair by cash or cheque, and the magistrate’s finding must be taken as a rejection of any such intention. I must say, however, that on the facts of this case my mind has wavered, for I was impressed with two passages in Mr. Walsh’s evidence, first that he used to check the accounts and would discuss them with the appellant as to the items which he was not sure about, so that the appellant could not have expected that his use of the local purchase order for his garage account would go undetected, and, secondly, that in due course Mr. Walsh would have rendered the appellant an account for the garage repair item. Further, even if the substance of the appellant’s evidence was disbelieved by the magistrate, it was not disputed that he genuinely believed that Macair owed him money for spare parts. The highest that the case for the appellant could be put by Mr. Reynolds was that in using the local purchase order to satisfy the garage account, he believed that it would be entered as a contra item against his claim upon the company. But it is implied in the magistrate’s finding that the appellant knew that he had no authority to sign a local purchase order for that purpose, and accordingly it seems to me that, in acting contrary to those instructions, even if his purpose was to obtain such a set off against the company, that was an attempt to obtain a dishonest advantage against the company, which he knew he was not entitled to. I therefore am of the opinion that there was evidence to support the magistrate’s finding that an intent to defraud was established beyond reasonable doubt.

I would dismiss the appeal, uphold the conviction, save that the value of the goods unlawfully obtained should be amended to $5.36.

I do not find it necessary to rule on the application relating to the notice of appeal against the other conviction because it would fall to be determined in the same way.

Appeal dismissed, conviction varied in that the value of the goods obtained is reduced to $5.36, but otherwise affirmed.

Solicitor for the appellant: Reynolds, Rissen & Co.
Solicitor for the respondent: P. J Clay, Crown Solicitor.

[dxvii]Section 427 of the Criminal Code (Queensland adopted) provides as follows:—

427. Any person who by any false pretence, and with intent to defraud, obtarom aher p any thing capablapable of e of beingbeing stolen, or induces any other person to deliver to any person any thing capable of being stolen, is guilty of a crime, and is liable to imprisonment with hard labour for three years, with or without solitary confinement.

If the thing is of the value of five hundred pounds or upwards, he is liable to imprisonment with hard labour for seven years, with or without solitary confinement.

It is immaterial that the thing is obtained or its delivery is induced through the medium of a contract induced by the false pretence.

The offender cannot be arrested without warrant unless found committing the offence.

[dxviii][1950] 1 KB. 82, at p. 86.
[dxix] [1963] Qd. R. 335.
[dxx][1931] ArgusLawRp 36; [1931] VLR. 237, per Lowe J., at p. 246.
[dxxi][1906] HCA 53; (1906) 4 CLR. 152, at p. 162.
[dxxii][1961] AC. 103.
[dxxiii] [1930] St. R. Qd. 38, at p. 43.