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Balcombe v De Simoni [1972] HCA 9; (1972) 126 CLR 576 (24 February 1972)

CATCHWORDS

HEARING

DECISION

2. The magistrate convicted the respondent. He was satisfied of the making of the pretence and that it was false. Having found that there was a false pretence within s. 408 of the Criminal Code, the magistrate said that he accepted the evidence "that it was this false pretence which was the substantial cause which induced her" (the representee) "to part with $6.50 in money and this creates the offence with which the defendant is charged notwithstanding that . . . " (the representee) "was to get something of real value for her money". (at p580)

3. Upon an order to review this decision the Supreme Court set aside the conviction. The Court (1971) WAR 147 rejected a submission that the magistrate had failed to give attention to the need to find an intent to defraud by obtaining the property in order to constitute the offence and held that in fact the magistrate had found such an intent. For myself, I would have preferred the view that the magistrate did make the error of concluding that once he found the inducement of the transaction by the false pretence, he was justified, in the circumstances, in convicting the respondent. A like mistake is illustrated in the summing up with which R. v. O'Sullivan (2) deals. That it was an error so to conclude is to my mind manifest. The crime is that of obtaining property by false pretences and with intent thereby, i.e. by the obtaining, to defraud. The insistence on the need for there to be such an intent appears throughout the reported cases on this particular offence. It is sufficient to cite R. v. O'Sullivan [1925] VicLawRp 58; (1925) VLR 514 as an example. (at p580)

4. It seems to me that the Supreme Court was entitled to take the magistrate at his own word and to conclude that he meant what he so clearly said. As spoken by him, his judgment was in my opinion in fundamental error ; as expressed, it was that the inducement of the representee's agreement to purchase the book by the false pretence constituted the offence. (at p580)

5. However, we have heard argument on the footing that the Supreme Court rightly treated the magistrate's decision as including a finding that the respondent not merely induced the purchase of the book by a false pretence but that he obtained the price of the book with intent to defraud. On that footing the Supreme Court discharged the magistrate's order, being of opinion that the intent to defraud had not been made out. See s. 197 and s. 205 of the Justices Act. (at p581)

6. The respondent, as the magistrate found, falsely pretended that he was a student from South Australia selected as a participant in a contest for $1,000 and a trip abroad, a competition in which points were earned by sales effected of certain books offered for purchase. Whether the evidence showed that all the facts of the representation were false is to my mind unclear. But clearly the respondent was not a student and the representation was not wholly true. His story seemingly excited the representee's sympathy for, so moved, she purchased through him a cooking book, which she otherwise would not have done, paying him what appears to have been its value in anticipation of its subsequent delivery by the respondent's employers. The representee having decided to purchase the book selected by her intended in passing over the price of the book that the respondent should in turn pass the money to his employers as the price of the book she had agreed to buy. It was not suggested that the respondent did not think the book to be really worth the asking price, or that he did not intend when he received the money to pass it to the proper destination to procure delivery of that book, or that he did not believe that the book would be duly delivered. (at p581)

7. One can feel quite strongly about the lack of honesty in this form of salesmanship, reflecting no credit whatever on the respondent and none on those who employed him. But however much to be condemned and deplored, the question remains whether the conduct of the respondent made out the offence with which he was charged. (at p581)

8. The section creating the offence, s. 409 (1) of the Criminal Code (W.A.), is in the following terms :

"409. (1) Any person who by any false pretence or by any
wilfully false promise or partly by a false pretence and partly
by a wilfully false promise, and with intent to defraud, obtains
from any other person anything capable of being stolen, or
induces any other person to deliver to any person anything
capable of being stolen, is guilty of a crime, and is liable to
imprisonment with hard labour for three years.
It is immaterial that the thing is obtained or its delivery is
induced through the medium of a contract induced by the false
pretence or the wilfully false promise or partly by a false
pretence and partly by a wilfully false promise." (at p581)

9. The clearest and most authoritative statement of the necessary
elements of this offence is to be found in the summing up of Channell J. in R. v. Carpenter (1911) 22 Cox CC 618, at p 624 .

"If the defendant made statements of fact which he knew to
be untrue, and made them for the purpose of inducing persons
to deposit with him money which he knew they would not
deposit but for their belief in the truth of his statements, and
if he was intending to use the money so obtained for purposes
different from those for which he knew the depositors
understood
from his statements that he intended to use it, then
. . . we have the intent to defraud . . . "

10. The property will not be obtained by false pretence unless the pretence induces the representee to act upon it. Nor will there be a false pretence unless it can be concluded that the accused intended his representation to be acted upon. See Russell on Crime, 12th ed. (1964) vol. 2, p. 1176. Thus the intent to induce and the inducement in fact are necessary elements of that part of the offence which consists in the obtaining by a false pretence. But in addition to the false pretence there must be an intent to defraud by the obtaining of the property. To treat the intended inducement by the false pretence as in itself of necessity proof of an intent to defraud is in effect to dispense with the need for an intent to defraud. In other words the intent to obtain is treated as itself the intent to defraud. No doubt there are occasions when the nature of the representation, the circumstances in which it was made, and the nature of the property obtained thereby may furnish material upon which an intent to defraud may be found. But it does not necessarily follow in my opinion that obtaining property by a false pretence is an obtaining with intent thereby to defraud within the requirement of s. 409. (at p582)

11. But the appellant, conceding the need for an intent to defraud by the obtaining of the price of the book, insists that the Supreme Court was in error in concluding that there was no evidence of an intent to defraud over and above the intent to obtain by the false pretence. (at p582)

12. The expression "with intent to defraud" does not seem to have any universal connotation applicable in all statutory contexts. Their Lordships in Welham v. Director of Public Prosecutions (1961) AC 103 gave the expression as found in s. 4 of the Forgery Act 1913 (U.K.) a meaning which did not require an intention to inflict economic loss on another person. They seem to have been assisted in this view by decisions illustrative of convictions for forgery prior to the passing of the statute they were construing. No universally valid conclusion as to the connotation of the expression can be drawn in my opinion from their Lordships' speeches in that case. But I notice in passing that Lord Radcliffe agreed that "to defraud must involve something more than the mere inducing of a course of action by deceit" (1961) AC, at p 127 . The question remains as to the meaning of the expression in the context of the Western Australian Criminal Code. (at p583)

13. The language of the section clearly requires in terms that there be both an intent to obtain the property by false pretence and in addition an intent by that obtaining to defraud. The pretence must of necessity be made to a person or body : in general one would expect the property to be intended to be obtained from the representee, though perhaps this may not always be so. Also, in general, the intent will be to defraud the representee from whom the property is obtained : though again this may not be universally so. But in this case, the property was intended to be and was obtained from the representee and there is no suggestion of any intent to defraud except a suggestion of an intent to defraud the representee. (at p583)

14. Whilst in other contexts it may possibly be said that to defraud is by deceit to cause another to take a course of action to his injury, this connotation of the word cannot, in my opinion, be applicable in the case of this section of the Criminal Code. The obtaining by false pretence essentially involves inducing the representee by deceit to take a course of action which otherwise the representee would not have taken. In so far as that course of action is the delivery of property, it can be said that that delivery is a relevant injury to the representee. Unless the requirement of an intent to defraud is treated as tautological, as I think the magistrate did, it calls for something more than the obtaining of the property by the false pretence, that is, for something more than an inducement by deceit to take a course of action. Again, in so far as the intent must be to defraud by the obtaining of the property, it would seem that the intent must be to do something to or with that property which the representee in handing it over did not intend, contemplate or understand should be done with it. This does not mean that of necessity economic loss by the representee is intended to be caused. But it does mean in my opinion that there must be an intent to divert or use the property obtained in a dishonest way. In other words, the dishonesty involved in the false pretence does not necessarily involve the achievement or intended achievement of a dishonest purpose by the obtaining of the property. So much in my opinion the statute properly construed contemplates. (at p584)

15. The question, which in a sense was the real question for the Supreme Court, as it viewed the magistrate's decision, is whether there was any material upon which the magistrate properly understanding all the elements of the offence, could have found beyond reasonable doubt that the respondent had an intent by obtaining the price of the book to defraud the representee. I agree with the Supreme Court that the magistrate was not justified in doing so. The whole facts of the transaction are known and unless the intention dishonestly to induce the agreement to purchase necessarily establishes the intention to defraud the representee by obtaining the price of the book from her, there is no evidence at all of an intention to defraud the representee by taking the price from her. (at p584)

16. Whilst the intervention of a contract between the false pretence and the passing of money or property to the defendant does not prevent it being held that the accused obtained the money or property, the existence of that contract cannot be ignored when questions of an intent to defraud are being considered. Further, although the fact that value was, or was to be, obtained for the money with which the representee parted, does not negative or preclude the existence of an intent to defraud, the fact that the money is paid over for a contractual purpose cannot be ignored when deciding whether the requisite intent to defraud is present. Here, though the agreement was induced by deceit, there was no evidence on which it could be held that the respondent intended to do anything with the money other than that which the representee intended when passing it to him that he should do with it. In relation to an intent to defraud what the parties intended should be done with the property or money obtained can never, in my opinion, be immaterial. (at p584)

17. The case is an unusual one for in general the overall dishonesty of purpose of the accused as evidenced by his conduct will furnish evidence of the requisite intent to defraud. That really was the case for example in R. v. Hammerson (1) and R. v. O'Sullivan (2). Here, there was no evidence of that pervasive dishonesty which so often runs throughout a case of obtaining money or property by false pretences with intent to defraud. (at p584)

18. Consequently, upon what I conceive to be the construction of the Statutory provision and the state of the evidence, I am of opinion that the complaint ought to have been dismissed. (at p585)

19. However, because much reliance was placed upon certain decisions by the Solicitor-General in his vigorous argument in support of the appeal, I should briefly discuss some of them. (at p585)

20. In R. v. Hammerson (1914) 10 Cr App R 121 there was evidence of conduct on the part of the accused from which it could have been concluded that there was what I have referred to as pervasive dishonesty which coloured all the incidents of the transaction in question and gave warrant for inferring an intent to defraud. But judging by counsel's argument, as reported, there was no specific direction by the trial judge as to the need for an intent to defraud. The Court of Criminal Appeal apparently thought that on a general purview of the summing up the "real question" was properly put to the jury. In dealing with another submission, however, that there could be no intent to defraud if something of real value was obtained by the representee for the money with which he parted - a proposition clearly insupportable - Bankes J. said (1914) 10 Cr App R, at p 122 , "where money is obtained by pretences that are false, prima facie there is an intent to defraud". I find the use of the expression "prima facie" difficult, carrying as it may some impression that it rests upon an accused to negative the implication. Equally I find unsatisfactory a summation of R. v. Williams [1836] EngR 545; (1836) 7 C & P 354 (173 ER 158) which attributes to it the proposition that "the circumstances may negative an intent to defraud, although the goods are obtained by a false pretence". (Hamilton and Addison : Criminal Law and Procedure New South Wales, 6th ed. (1956), p. 222). R. v. Williams [1836] EngR 545; (1836) 7 C & P 354 (173 ER 158) in my opinion decides that the obtaining of the goods by a false pretence does not necessarily import an intention to defraud. Whether or not there is such an intent depends on all the circumstances. Of course, the onus of satisfying the jury as to the existence of such an intent rests upon the Crown. But if no more is meant by the statement in R. v. Hammerson (1914) 10 Cr App R 121 and in R. v. Porter (1935) 25 Cr App R 59, at p 62 that where money is obtained by pretences that are false prima facie there is an intent to defraud, such an intent may be inferred if no more is known than that the accused obtained money by false pretences, I feel I could accept the statement. But that is not the case here. Consequently I obtain no assistance from these statements in resolving the present case. In addition the decision in R. v. O'Sullivan [1925] VicLawRp 58; (1925) VLR 514 places, and I think rightly, much more emphasis on the need for a specific and unambiguous direction as to the need for the presence of an intent to defraud than was done in R. v. Hammerson (1914) 10 Cr App R 121 . Cf. also Reg. v. Potger (1970) 55 Cr App R 42 , a case disposed of by the use of the proviso to s. 2 (1) of the Criminal Appeal Act, 1968 (U.K.). (at p586)

21. I have already indicated that the connotation of the expression "intent to defraud" as found in the Forgery Act is in my opinion inapplicable in the case of s. 409 of the Criminal Code. So are many of the general statements contained in decided cases and text books dealing with forgery. (at p586)

22. I have already referred to the language of Channell J. in R. v. Carpenter (1911) 22 Cox CC, at p 624 . In dealing with his Lordship's summing up in that case it must be remembered that the defrauding consisted in the representee getting something different from what he thought he was getting. There does not seem to have been any contest that that was so. Consequently, the case boiled down as Channell J. said to the question whether the false pretence was made or not. (at p586)

23. I do not pause to discuss cases with respect to other and different offences such as asporting property fraudulently under the Larceny Act, 1916 (U.K.), or the making of a false entry with intent to defraud, or obtaining credit by false statements because statements as to what is sufficient to satisfy the notion of fraud, or an intent to defraud in those instances cannot in my opinion be transferred into the context of the present appeal. (at p586)

24. There remains the judgment of the Supreme Court of Victoria in R. v. O'Sullivan [1925] VicLawRp 58; (1925) VLR 514 . I have already indicated my acceptance of the decision that an express direction is necessary as to the need for an intent to defraud by the obtaining of the money or property. I also agree that this is so notwithstanding the presence of abundant evidence of such an intent. For my own part, though the possibility of such cases must be conceded, I would regard the course taken in R. v. Carr (1916) 12 Cr App R 140 and in R. v. Ferguson (1913) 9 Cr App R 113 as exceptional and as in general unsatisfactory. (at p586)

25. But, there is a dictum made in the course of the judgment of the Chief Justice in R. v. O'Sullivan [1925] VicLawRp 58; (1925) VLR 514 which, with due respect, I am unable to accept. His Honour said :

"It is an essential element of the offence that the goods
should have been obtained by false pretences with intent to
defraud. The intent to defraud includes in every case an
intention on the part of the accused that the owner of the
goods shall be by such false statements induced to do what he
otherwise would not do - namely, part with the goods in
question. There is abundant evidence in this case on which
the jury might find such an intention in the accused"
(1925) VLR, at p 518
. (at p587)

26. It seems to me that in this passage the intent to defraud is
identified with the intent to obtain. But in that event, the reference in the section to an intent to defraud becomes otiose for the intent to obtain is an indispensable element of the obtaining by false pretence. No doubt in other contexts a person induced by deceit to a course of action which he otherwise would not take may be held to be defrauded. But, as I have already said, such a concept is inadequate in the context of this section which requires an obtaining by false pretence and an intention by the obtaining to defraud. However, in my opinion, there was evidence of conduct in R. v. O'Sullivan [1925] VicLawRp 58; (1925) VLR 514 from which an intent to defraud the representee of the goods or their value could have been inferred. (at p587)

27. For the reasons I have expressed, the conclusion at which the Supreme Court of Western Australia arrived in this case, in my opinion, was correct. I would dismiss the appeal both for that reason and also because I think the magistrate wrongly decided that the inducement of the contract of purchase by a false pretence was enough to establish the offence. (at p587)

McTIERNAN J. The respondent was convicted by a Court of Petty Sessions under s. 409 (1) of the Criminal Code, 1913-1969 (W.A.). That section in so far as it is material, reads as follows :

"(1) Any person who by any false pretence or by any
wilfully false promise or partly by a false pretence and partly
by a wilfully false promise, and with intent to defraud, obtains
from any other person anything capable of being stolen, or
induces any other person to deliver to any person anything
capable of being stolen, is guilty of a crime, and is liable to
imprisonment with hard labour for three years.
It is immaterial that the thing is obtained or its delivery is
induced through the medium of a contract induced by the false
pretence or the wilfully false promise or partly by a false
pretence
and partly by a wilfully false promise." (at p587)

2. The learned magistrate had found that the defendant had falsely
and knowingly represented that he was a student selected in a contest for a monetary prize and an overseas goodwill trip to represent the youth of Australia and had thereby induced a purchaser to give him $6.50 for a cookery book which was to be delivered at a later date. The learned magistrate held the offence was made out notwithstanding his finding that the purchaser was to get something of real value for her money. In my opinion this entailed a finding that the defendant had obtained $6.50 from the purchaser by a false pretence and with intent to defraud. (at p588)

3. It was contended before this Court however that there was no evidence on which a finding of intent to defraud could have been made beyond a reasonable doubt for the reason that the intent was no more than to secure an agreement supported by a genuine and adequate consideration. (at p588)

4. In my opinion the crucial characteristic of an intention to defraud is not the economic loss which may or may not result to the purchaser but the element of dishonesty. In R. v. Kritz (1950) 1 KB 82, at pp 86-87 , the Court of Criminal Appeal quoted with approval the direction given by Channell J. as to intent to defraud in R. v. Carpenter (1911) 22 Cox CC, at p 624 . The concluding words of the passage quoted read : ". . . this question as to the intent to defraud substantially comes to this : whether or not the statements were honestly made". This question was also considered by the Supreme Court of Victoria in R. v. O'Sullivan [1925] VicLawRp 58; (1925) VLR 514 where the Court said (1925) VLR, at p 518 :

"It is an essential element of the offence that the goods
should have been obtained by false pretences with intent to
defraud. The intent to defraud includes in every case an
intention on the part of the accused that the owner of the goods
shall be by such false statements induced to do what he
otherwise
would not do - namely, part with the goods in question."

5. In my judgment there was ample evidence on which the learned magistrate might have made a finding that there was an intent to defraud on the part of the defendant, a finding which he did, in my opinion, make. (at p588)

6. I would therefore grant special leave, allow the appeal and discharge the order to review. (at p588)

MENZIES J. I have had the advantage of reading the reasons

WALSH J. The questions raised by this application for special

2. My consideration of the questions raised by the application has brought me to the conclusion, in agreement with that of the Chief Justice, that the orders made by the Supreme Court of Western Australia (1971) WAR 147 should not be disturbed. I agree with his Honour's reasons and do not wish to add anything to them except to make some observations upon one question, upon which different views have been taken in this Court. (at p589)

3. In the Supreme Court of Western Australia, Wickham J., after referring to ss. 408 and 409 of the Criminal Code, said (1971) WAR, at p 149 :

"There is therefore an element of intent in the obtaining
of the thing by the false pretence in that the false pretence
which is itself necessarily dishonest is intentionally used by the
accused as an inducement for the obtaining, or, more accurately
as an inducement to the victim to allow him to obtain." (at p589)

4. In his reasons for judgment the Chief Justice has written that
the intent to induce and inducement in fact are necessary elements of that part of the offence which consists in the obtaining of property by a false pretence and that in addition there must be an intent to defraud by the obtaining of the property. The contrary view is that in the description of the offence there is not included, apart from the words "with intent to defraud", any element of intention at all. According to that view all that is necessary in order to establish that a person has obtained property by a "false pretence" (as defined in s. 408 of the Criminal Code) is to show that he obtained it by means of a representation of a matter of fact which representation was false in fact and that he knew that it was false or did not believe it to be true and in this no intention to obtain the property is involved. (at p589)

5. I am of opinion that the view of the Chief Justice is correct. If s. 409 (1) had been enacted without the inclusion therein of the words "and with intent to defraud", it would not have been proper in my opinion to construe it in such a way that an offence would be committed even if it appeared that the accused, although he made a false statement known by him to be false by which in fact he obtained property from another person, had no intention that that person would be induced by the statement to part with any property. I do not think that s. 23 of the Criminal Code would require that it should be so construed. I do not think that the word "obtains", as used in s. 409 (1), includes in its meaning a reference to an unintended and unexpected acquisition of property. The same provision refers to a person who "obtains" something from another person and to a person who "induces" another person to deliver something. In the first case there is required, in my opinion, an intention that the other person will be induced by the false pretence to part with the property so that the maker of the representation may obtain it, just as in the second case it is plain that there must be an intention that the other person will be induced to deliver the property. (at p590)

6. In my opinion, special leave to appeal should be granted but the appeal dismissed. (at p590)

GIBBS J. The respondent was employed as a salesman to go from house to house through the suburbs of Perth in an endeavour either to sell books or to obtain subscriptions for periodicals for which his employer had the agency. He was not scrupulous in the methods he employed to effect a sale, but used both deceit and importunities to that end. As a result of complaints concerning his activities he was charged that on 17th August 1970 at Wexcombe by falsely pretending to one Jina Hasluck that he was a student from South Australia selected in a contest for $1,000 and an overseas trip to represent the youth of Australia on a goodwill tour he obtained from the said Jina Hasluck $6.50 in money with intent thereby then to defraud, contrary to s. 409 of the Criminal Code (W.A.). The magistrate who constituted the Court of Petty Sessions before which the charge was brought found that the false pretence alleged was made and that it induced Jina Hasluck to part with $6.50 and went on to convict the respondent. The magistrate did not, however, make a finding that the respondent had an intent to defraud. The respondent obtained an order nisi to review the decision of the magistrate upon two grounds, viz., (a) that the magistrate had made no finding that the respondent had made the false pretence alleged with intent to defraud and (b) that there was no evidence of an intent to defraud on the part of the respondent and that he should therefore have been acquitted. The learned judge of the Supreme Court of Western Australia (1971) WAR 147 before whom the order nisi was returned took the view that the magistrate must have been satisfied that there was an intent to defraud, so that the first ground failed, but that there was no evidence on which such a finding could have been made and he accordingly made absolute the order nisi and quashed the conviction. The complainant now seeks special leave to appeal against this judgment. (at p591)

2. It is convenient to proceed immediately to the question of substance involved in the application, which is whether on the evidence the magistrate should have found an intent to defraud, a question which depends upon the true view of the substantive law on the point. By means of the false pretence alleged the respondent induced Jina Hasluck to agree to buy a cookery book which she did not want and to pay the respondent $6.50 as the price of the book. She was given a receipt and was apparently told that the book would be delivered to her at a later date. Her money was subsequently refunded as a result of a suggestion made to the respondent by the police, but it must be assumed in favour of the respondent, since the contrary was not proved, that at the time the false pretences were made and the money was obtained the respondent intended that his employer would arrange for the delivery of the book and that the book would have been delivered and that its normal price was not less than $6.50. The case is therefore one in which there was no misrepresentation as to the nature or quality of the thing to be supplied in exchange for the money or as to the use to which the money would be put when it was paid over ; the false pretence was made with intent to induce the representee to part with her money but it was intended to use the money in exactly the manner represented, that is, as the purchase price of the book which it was intended to deliver and which it must be supposed would, in fact, have been delivered, in accordance with the representation. (at p591)

3. Section 409 of the Criminal Code (W.A.) reads as follows :

"(1) Any person who by any false pretence or by any
wilfully false promise or partly by a false pretence and partly
by a wilfully false promise, and with intent to defraud, obtains
from any other person anything capable of being stolen, or
induces any other person to deliver to any person anything
capable of being stolen, is guilty of a crime, and is liable to
imprisonment with hard labour for three years.
It is immaterial that the thing is obtained or its delivery is
induced through the medium of a contract induced by the false
pretence or the wilfully false promise or partly by a false
pretence
and partly by a wilfully false promise.
(2) Any person incurring any debt or liability who obtains
credit by any false pretence or by any wilfully false promise
or partly by a false pretence and partly by a wilfully false
promise or by any other fraud is guilty of a misdemeanour,
and is liable to imprisonment with hard labour for one year."

"Any representation made by words or otherwise of a matter
of fact, either past or present, which representation is false in
fact, and which the person making it knows to be false or does
not believe to be true, is a false pretence." (at p592)

4. The words of these sections make it plain that to establish that the respondent committed the crime with which he was charged it must be proved, first, that he obtained from another person property capable of being stolen ; secondly, that he obtained such property by means of a representation of a matter of fact which representation was false in fact and which he either knew to be false or did not believe to be true and, thirdly, that he obtained such property with intent to defraud. The learned primary judge took the view that there is "an element of intent in the obtaining of the thing by the false pretence in that the false pretence which is itself necessarily dishonest is intentionally used by the accused as an inducement for the obtaining, or, more accurately as an inducement to the victim to allow him to obtain" (the property) and that "'intent to defraud' connotes something additional to the intention dishonestly to obtain" (1971) WAR, at p 149 . With all respect I cannot agree that this is the effect of the section. Section 23 of the Criminal Code provides, inter alia, that :

"Unless the intention to cause a particular result is expressly
declared to be an element of the offence constituted, in whole
or part, by an act or omission, the result intended to be caused
by an act or omission is immaterial."

5. The learned primary judge found some support for the view which he took, and which I feel obliged to reject, in a comparison which he drew between sub-s. (1) of s. 409 and sub-s. (2), which he seemed to think did not make an intent to defraud an element of the offence created by the latter subsection. It is unnecessary for present purposes to express any final view as to the effect of sub-s. (2), but it should be mentioned that it has been held that s. 13 (1) of the Debtors Act, 1869 (U.K.), and s. 253 of the Crimes Act 1908 (N.Z.), which appear indistinguishable in any material respect from s. 409 (2), require the prosecution to prove an intent to defraud : R. v. Brownlow (1910) 4 Cr App R 131 ; Reg. v. McKay (1961) NZLR 256 . (at p593)

6. The crucial question then is what constitutes an intent to defraud. The expression is not defined in the Criminal Code but some assistance may be derived from the discussion of the meaning of the words in other contexts. In In re London and Globe Finance Corporation Ltd. (1903) 1 Ch 728, at pp 732-733 , Buckley J. said :

"To deceive is, I apprehend, to induce a man to believe that
a thing is true which is false, and which the person practising
the deceit knows or believes to be false. To defraud is to
deprive by deceit : it is by deceit to induce a man to act to
his injury. More tersely it may be put, that to deceive is by
falsehood to induce a state of mind ; to defraud is by deceit
to induce a course of action."

"The intent to defraud includes in every case an intention
on the part of the accused that the owner of the goods shall be
by such false statements induced to do what he otherwise
would not do - namely, part with the goods in question." (at p594)

7. However, in R. v. Carpenter (1911) 22 Cox CC 618 in a passage described in R. v. Kritz (1950) 1 KB, at p 87 as the locus classicus on the subject, Channell J. said (1911) 22 Cox CC, at p 624 :

"If the defendant made statements of fact which he knew
to be untrue, and made them for the purpose of inducing persons

from his statements that he intended to use it, then . . .

"If a false statement, false to the knowledge of the person
making it, is made, and by this means money or credit
is obtained, and the person who gives that money or credit does
so in reliance on the false statements that have been made -
well, that is sufficient and you need not go any further. The
fact that the man may, and undoubtedly would if he got the
chance, repay the money is, to my mind, quite immaterial,
chance, repay the money is, to my mind, quite immaterial,
but it is immaterial what he intended to do with the money if
he obtained it by means of pretences that are false, with intent
to defraud. And to defraud, as I say, means by deceit to get
other people to take a certain course of action that is harmful
to them
(1950) 1 KB, at p 86
."

8. Considering the matter on principle I am of opinion that it is not necessary that an accused person should have intended to use the property for purposes different from those for which the victim of his deceit understood he would use it before he can be held to have had an intent to defraud. What is essential is that he should have intended to obtain the property by means of a deception. To say this is not to fail to give proper weight to the words "with intent to defraud". If those words did not appear in the section it would be enough if the accused made a statement which was false to his knowledge and if the person to whom the statement was made was induced to part with property by reason of such false pretence, and it would be immaterial whether the statement was intended to have that effect. What the inclusion of the words "with intent to defraud" makes necessary is that the accused should have made the false pretence with the intention of inducing another person to part with property. Therefore, if a beggar obtains money by pretending to be blind, and with the intention that the person to whom the pretence is made should be induced by that pretence to give him alms, the offence is committed notwithstanding that the money is used exactly as the person who gave it intended that it should be used, for the relief of the beggar. Similarly, if a man, by pretending to hold a certain position, or to possess certain assets, intentionally induces another to lend him money which he would not otherwise have lent, the former has an intent to defraud, notwithstanding that he intends to use the money for the very purpose for which he says he wants to borrow it. (at p596)

9. In the present case, as I have said, the magistrate made no specific finding that there was an intent to defraud. If a judge summing up to a jury omitted to direct them that an actual intent to defraud is a necessary element of the crime, I would be of opinion that the direction was insufficient. However in the present case the magistrate, after refusing to accept the denials of the respondent that the representations alleged were made, proceeded to convict the accused and if, consistently with the view which he took of the respondent's credibility, the magistrate was bound to find an intent to defraud, his conviction ought to be sustained. In my opinion, the only possible conclusion from the evidence is that the respondent made false pretences with the intention of inducing Jina Hasluck to part with her money ; in other words, the respondent had the intention of depriving her of her money by deceit and, therefore, had an intent to defraud. The magistrate's conclusion was in my opinion correct. (at p596)

10. I would grant special leave to appeal, and would allow the appeal and discharge the order to review. (at p596)

ORDER