Balcombe v De Simoni [1972] HCA 9

High Court of Australia Barwick C.J. McTiernan, Menzies, Walsh and Gibbs JJ. Balcombe v De Simoni [1972] HCA 9

ORDER Special leave granted. Appeal allowed. Order of the Supreme Court set aside and in lieu thereof order that the order nisi to review be discharged.

Cur. adv. vult.

The following written judgments were delivered:—

1972, Feb. 24 Barwick C.J.

The respondent was charged on the appellant's complaint under the Justices Act, 1902 W.A. (as amended) that "by falsely pretending 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 obtained from" (the representee) "$6.50 in money with intent thereby then to defraud, contrary to s. 409 of the Criminal Code ".

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".

Upon an order to review this decision the Supreme Court set aside the conviction. The Court [1] 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 [2] as an example.