Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Attorney-General's Application pursuant to s 108 Crimes (Appeal and Review) Act 2001 (NSW): Re Robert Burton (a pseudonym) [2021] NSWCCA 87 Hearing dates: 9 September 2020 Date of orders: 5 May 2021 Decision date: 05 May 2021 Before: Simpson AJA at [1] Campbell J at [88] N Adams J at [91] Decision: Answers to the questions submitted are: Question 1: No Question 2: No Question 3: Yes Catchwords: APPEALS – jurisdiction of appellate court – discretion to exercise jurisdiction –– Crimes (Appeal and Review) Act 2001 (NSW) s 108 – where Attorney-General or Director of Public Prosecutions has submitted a question of law arising at or in connection with a trial – whether Court of Criminal Appeal can decline to exercise jurisdiction properly invoked CRIME – appeals – directed acquittal – submission to CCA to determine question of law arising at or in connection with trial – determination not affecting acquittal - Crimes (Appeal and Review) Act 2001 (NSW) s 108 – where question submitted concerns capacity of evidence to satisfy elements of offence charged – where trial judge directed acquittal on basis of incapacity of evidence to support finding of causation – whether question so framed is a question of law – whether question arose at or in connection with trial CRIME – fraud – dishonestly cause financial disadvantage by deception – causation – where bet placed with bookmaker by deception – whether winnings paid out by bookmaker capable of constituting financial disadvantage caused by deception CRIME – fraud – dishonestly obtain financial advantage by deception – causation – where bet placed with bookmaker by deception – whether winnings paid capable of constituting financial advantage obtained by deception – whether bet itself capable of constituting financial advantage Legislation Cited: Crimes Act 1900 (NSW), s 192E Crimes (Appeal and Review) Act 2001 (NSW), s 108 Criminal Appeal Act 1912 (NSW), s 5AE Supreme Court Act 1970 (NSW), s 101A Cases Cited: Attorney-General for the State of New South Wales v X (2000) 49 NSWLR 653; [2000] NSWCA 199 Charara v The Director of Public Prosecutions [2001] NSWCA 140 Collector of Customs v Agfa-Gevaert Limited (1996) 186 CLR 389; [1996] HCA 36 Director of Public Prosecutions v Cassell (1995) 80 Crim R 160 Doney v The Queen (1990) 171 CLR 207 at 214-5; [1990] HCA 51 Duncan v Independent Commission Against Corruption [2016] NSWCA143 Elias v The Director of Public Prosecutions (NSW) [2012] NSWCA 302 Ex parte McGavin; re Berne (1946) 46 SR (NSW) 58 Flack v R [2011] NSWCCA 767 Ho and Szeto v R (1989) 39 a Crim R 145 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20 Matthews v Fountain [1982] VR 1045 Mellifont v Attorney General (Qld) (1991) 173 CLR 289 at 305; [1991] HCA 53 Orr v Cobar Management Pty Limited [2020] NSWCCA 220 R v Brown (1989) 17 NSWLR 472 R v Button [1900] 2 QB 597 R v Clucas [1949] 2 KB 226 R v J (1987) 9 NSWLR 615 R v King; (1987) 84 Cr App R 357; [1987] QB 547 R v Lambassi [1927] VLR 349 R v Steven Henry Miller [1992] 95 Cr App R 421 R v Walsh (1990) 52 A Crim R 80 Royall v The Queen (1991) 172 CLR 378; [1991] HCA 27 Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; [1994] HCA 4 Category: Principal judgment Parties: Attorney General for New South Wales Robert Burton (a pseudonym) Representation: Counsel: H Dhanji SC/L Hutchinson P Boulten SC/S Jeliba Solicitors: NSW Department of Communities & Justice Cockburn & Co Solicitors File Number(s): 2017/328979 Publication restriction: Refer to Crimes (Appeal and Review) Act 2001 (NSW), s 108(6) Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Citation: NSWDC 587 Date of Decision: 22 October 2019 Before: Beckett DCJ File Number(s): 2017/328979 JUDGMENT 1. SIMPSON AJ: Section 108 of the Crimes (Appeal and Review) Act 2001 (NSW) ("The Appeal and Review Act") provides to the Attorney General and the Director of Public Prosecutions a rarely used avenue to obtain determination by this Court of certain questions of law. By subs (1), s 108 applies to any criminal proceedings tried on indictment, and to certain summary proceedings in which the Crown was a party, which have resulted in acquittal of the person charged. 2. Subsection (2) of s 108 is in the following terms: "The Attorney General or the Director of Public Prosecutions may submit for determination by the Court of Criminal Appeal any question of law arising at or in connection with the trial (together with the statement of the circumstances out of which the question arose). The Court is to hear and determine any such question." 1. In order for this Court to have jurisdiction under s 108, any question submitted must meet two requirements: 1. it must be a question of law; and 2. it must arise at, or in connection with, the trial in relation to which it is submitted. 1. By subs (3) of s 108 determination of any question submitted does not affect or invalidate the verdict of acquittal or any other decision given at the trial. By subs (4) any person charged at the trial or affected by the decision is entitled to be heard on the determination of the question(s) submitted. In the event that the person does not propose to be represented the Attorney General or the Director of Public Prosecutions is to instruct and pay the reasonable costs of counsel to argue the question on behalf of that person. By subs (5) proceedings under s 108 are to be held in camera. 2. For completeness, subs (6) should be set out in full. It is in the following terms: "(6) The following is not to be published – (a) any report of a submission made under subsection (2), (b) any report of proceedings under this section that discloses the identity of the person charged at the trial or affected by the decision given at the trial. Any such publication is punishable as a contempt of the Supreme Court." 1. The requirement that the proceedings be held in camera, and the provisions of subs (6) (to which further reference will be made below) make it clear that the person charged and acquitted ought not to be further identified. Every attempt has been made in the following reasons to comply with that injunction. It is necessary, however, in order to address the issues raised, to outline the relevant factual background. Background 1. In October 2019 a person (to whom I will refer by the pseudonym Robert Burton) was arraigned in the District Court on an indictment that charged him with 78 counts of offences against s 192E(1)(b) of the Crimes Act 1900 (NSW). Section 192E(1) provides: "Fraud (1) A person who, by any deception, dishonestly – (a) obtains property belonging to another, or, (b) obtains any financial advantage or causes any financial disadvantage, is guilty of the offence of fraud." A maximum penalty of imprisonment for ten years is prescribed for the offence. 1. The Crown relied only on par (b) of s 192E(1): that is, it alleged that Mr Burton, by deception, dishonestly obtained financial advantage or caused financial disadvantage. Five of the 78 counts alleged that Mr Burton, by deception, dishonestly obtained a financial advantage. The remaining counts alleged that, by deception, he dishonestly caused financial disadvantage. The conduct alleged in each case was essentially the same and will be generally outlined below. 2. Mr Burton entered a plea of not guilty to each count and a trial before a jury proceeded. At the conclusion of the Crown case counsel for Mr Burton sought verdicts of acquittal by direction on all counts on the basis that a prima facie case had not been established with respect to certain elements of the offences. On 22 October 2019, having heard argument, the trial judge held that: "there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty on the offences as charged (at [105])." Her Honour accordingly directed the jury to return a verdict of not guilty on each count; that was duly done, and Mr Burton was discharged. Her Honour gave and published detailed reasons for her decision. Since reference to the published judgment could lead to the disclosure of Mr Burton's true identity the judgment is not identified. 1. As will emerge below, the defect her Honour identified concerned the issue of causation; she held that the Crown had failed to prove a causal connection between the deceptions asserted and any financial advantage or disadvantage found to have been obtained or suffered. 2. The Attorney General has invoked s 108(2) of the Appeal and Review Act. He has submitted for the determination of this Court three questions, each of which he asserts to be a question of law that arose at, or arises in connection with, the trial. The questions submitted are set out below (at [22]). The Attorney General has provided a statement of the circumstances in which (he asserts) the questions arose (as required by the subsection). 3. Mr Burton has chosen not to be represented. In accordance with s 108(4), Mr P Boulten and Miss S Jeliba have been instructed to argue the questions on his behalf. 4. In order to understand the questions submitted it is necessary to understand the factual background of the case the Crown sought to make. The outline hereunder is necessarily drawn from the Attorney General's statement of the circumstances in which, he contends, the questions arose, which is, in turn, drawn from what was asserted in the Crown case; there have been no relevant findings of fact or determinations, and what follows does not purport to state established fact. 5. The Crown asserted that Mr Burton is known as a professional (and, it may be inferred, successful) gambler on horse and greyhound races. Prior to 2012 he had held accounts with corporate bookmakers in his own name. Because of his success the accounts had been closed or restricted. Between September 2012 and March 2013 (the period spanned by the indictment) he placed 78 successful bets on horse or greyhound races using four online accounts held with two corporate bookmakers, in names other than his own. In each case a payment was made by the relevant bookmaker into the relevant account. Mr Burton was the ultimate recipient of each of the payments, after deduction of a commission for the holder of the relevant account. 6. Use of accounts held in the name of a person other than the person placing the bet was not uncommon in the industry; it was sufficiently common that such accounts were known as "bowler" accounts. 7. With a minor and presently irrelevant exception Mr Burton had exclusive use of the four accounts which he used to place his bets. He provided the funds in the accounts and he directed payments out of the accounts. In placing his bets, which he did by telephone or on the internet, Mr Burton represented either that he was the person in whose name the account was held, or that he had the authority of that person to place the bets. The indictment 1. As indicated above, each count on the indictment took one of two forms. The first alleged that Mr Burton: "On [specified date] … did by a deception, namely that he was [name of account holder] and was authorised to place a bet of [specified amount] through [name of corporate bookmaker] account in the name of [name of account holder] of [address] on the horse [or greyhound] [name of horse or greyhound] in [specified race], dishonestly obtain a financial advantage from [name of corporate bookmaker] namely the winning margin on the bet of [specified amount]." 1. The second form of charge alleged that Mr Burton: "On [specified date] … did by a deception, namely that he was [name of account holder] and was authorised to place a bet of [specified amount] through the [account] in the name of [name of account holder] of [address] … on the horse [or greyhound] [name of horse or greyhound] dishonestly cause a financial disadvantage to [name of corporate bookmaker], namely the payment by it of the Customer Profit on the bet of [specified amount]." 1. It was not in issue that causation was an element of each offence charged: Ho and Szeto v R (1989) 39 A Crim R 145; Flack v R [2011] NSWCCA 167; Duncan v Independent Commission Against Corruption [2016] NSWCA 143 at [352], ('Duncan') and the cases there cited. So much is clear from the words "by any deception" in subs (1) of s 192E of the Crimes Act, and is explicit in the second clause of par (b). 2. As the case was pleaded and presented by the prosecution: 1. the deception alleged was that Mr Burton was the person in whose name the relevant account was held and that he was authorised to place the bets. (There is a curiosity in the counts as pleaded; the deception was alleged to be both that Mr Burton was the account holder and that he was authorised, presumably by the account holder, to place the bets. It is difficult to understand how the deception could be both, but no point has been taken in this respect. Moreover, it is difficult to see how, in the circumstances alleged by the Crown, the representations that Mr Burton was authorised by the account holders to place the bet could be shown to have been deceptions. This, also, does not arise in the present proceedings.); 2. the financial advantage alleged in five counts was the payment to the account holder of the "winning margin" on the relevant bet ("the winning margin" being, as I understand it, the difference between the amount outlaid as the wager and the amount paid on the win); 3. the financial disadvantage alleged in the remaining counts was the payment by the corporate bookmaker into the relevant account of the "Customer Profit" (the "Customer Profit" being, as I understand it, also the difference between the amount outlaid as a wager, and the amount paid by the bookmaker). It was a necessary element of the Crown case that there was a causal connection between the deceptions and the financial advantage obtained or the financial disadvantage suffered. That was the element on which, on the conclusions of the trial judge, the Crown case foundered. 1. The salient conclusions of the trial judge are to be found in two paragraphs of the judgment, as follows: "[101] … The operative cause [sic – result] of [Mr Burton's] deception was the provision of the benefit in terms of an opportunity to lay a bet. As a result of that opportunity [Mr Burton] obtained a chance to win. Sometimes he won and sometimes he lost. The deception only allowed [Mr Burton] to take a 'step along the way' to the gaining of the financial advantage, even if that step may have been measured in hours, minutes or less. … [104] At law, what [Mr Burton] obtained by virtue of his deception was the benefit of an opportunity to potentially obtain a financial advantage. The financial advantage did not arise until the horse or dog he placed a bet on, won …" The questions of law submitted to this Court 1. The questions submitted, as finally formulated, are: 1. Where a person, by a deception within the meaning of s 192E(1) of the Crimes Act 1900 [dishonestly] obtains the opportunity to place a bet, are any winnings resulting from that bet incapable of constituting a financial advantage obtained by that deception for the purposes of that provision? 2. Where a person, by a deception within the meaning of s 192E(1) of the Crimes Act 1900 [dishonestly] obtains the opportunity to place a bet, are any winnings paid out by the person with whom the bet was placed incapable of constituting a financial disadvantage caused by that deception for the purposes of that section? 3. Is a bet capable of constituting a financial advantage for the purposes of s 192E(1) of the Crimes Act 1900? 1. Question 3 was originally framed as: "Whether her Honour erred in finding that to establish that a benefit was obtained for the purposes of s192E of the Crimes Act, it is necessarily insufficient if the prosecution proves no more than the contradictor, by his or her deception obtained the opportunity to place a bet because an opportunity to place a bet is not a financial advantage within s 192E." 1. It was subsequently amended to read: "Is the opportunity to place a bet capable of constituting a financial advantage for the purposes of s 192E(1)(b) of the Crimes Act 1900?" 1. It took its final form with the deletion of the words "the opportunity to place", as set out above, during the course of the hearing of the present proceedings. 2. Questions 1 and 2 as framed are notable for their lack of clarity. As explained below, however, they must be understood as focussing on the question of the capacity of the Crown case, in the circumstances on which it depended, to establish the necessary causal connection between Mr Burton's asserted deceptions and the financial advantages gained by him and financial disadvantages suffered by the bookmaker companies. The interposition of "the opportunity to place a bet" recognises the reasoning process of the trial judge, but otherwise adds nothing to the substance of the questions. Three preliminary issues 1. Counsel for Mr Burton raised three issues preliminary to the resolution of the questions submitted. First, they argued that the questions as framed do not fall within the categories permitted by s 108(2), as having arisen at, or in connection with, the trial. Second, they argued that the questions are not questions of "pure law", as (they submitted), is required by subs (2) but are questions of mixed fact and law. That, they said, is because those questions require determination in the context of facts found by the trial judge. 2. The third preliminary matter raised was a contention that, notwithstanding the apparently mandatory language of the second sentence of s 108(2) ("the Court is to hear and determine any" question submitted (italics added)) this Court retains a discretion to decline to answer any or all of the questions submitted (and, presumably, that that discretion ought to be exercised). Discretion to decline to answer the questions 1. It is convenient to deal first with the third preliminary issue, which found its origin in the decision of this Court in Orr v Cobar Management Pty Ltd (2020) 103 NSWLR 36; [2020] NSWCCA 220. That was a decision with respect to s 5AE of the Criminal Appeal Act 1912 (NSW), which provides for the procedure commonly known as a "stated case" by which certain courts exercising summary criminal jurisdiction can submit questions of law "arising at or in reference to the proceedings" to this Court for determination. In contrast to s 108(2), s 5AE provides (in subs (2)) that the Court "may make any such order or give any such direction to the court concerned as it thinks fit" (italics added). This Court held that the jurisdiction conferred by s 5AE "must carry with it a discretion to decline to answer such questions where the Court of Criminal Appeal considers that it is not appropriate to do so" (at [115]). 2. At the outset, I should say that I do not accept that the court has a discretion to decline to answer any question that properly falls within s 108(2). First, it is difficult to escape the force of the directive that the Court "is to hear and determine" (italics added) any question submitted (on the proviso that the question submitted satisfies the statutory requirements set out above). 3. Secondly, conferral of jurisdiction on a court carries with it an obligation on the court, where the jurisdiction is properly and regularly invoked, to exercise it. That may be so even where the legislation conferring the jurisdiction is couched in terms that appear to be "facultative" or "permissive" only: Ex parte McGavin; re Berne (1946) 46 SR (NSW) 58 ('McGavin'); Director of Public Prosecutions v Cassell (1995) 80 A Crim R 160 ('Cassell'). At the time relevant to McGavin, s 5B of the Criminal Appeal Act provided (as it continues to do) for the submission to this Court by what was then known as a Court of Quarter Sessions (now the District Court) of a question of law (or a case stated) and provided that this Court "may make any such order or give any such direction" (italics added) to the Court of Quarter Sessions as it thinks fit. 4. In McGavin a Chairman of Quarter Sessions refused a request to submit a proposed question. Jordan CJ said, at 60-61: "The word 'may' is prima facie facultative only; but it was pointed out in Macdougall v Paterson (1851) 11 C.B. 755 at 773, that 'when a statute confers an authority to do a judicial act in a certain case, it is imperative on those so authorised, to exercise the authority when the case arises, and its exercise is duly applied for by a party interested, and having the right to make the application'." 1. That passage has been repeatedly endorsed in this Court; see, for example Cassell at 164-5; Charara v The Director of Public Prosecutions [2001] NSWCA 140 at [33]; Elias v Director of Public Prosecutions (NSW) [2012] NSWCA 302 at [35]-[36] ('Elias'). 2. Speaking more generally and in a different context, but nevertheless pertinently to the present issue, this Court in R v Brown (1989) 17 NSWLR 472 (Gleeson CJ, Newman and Loveday JJ) rejected a suggestion that a judge might simply decline to deal with a matter by standing it out of the list and doing nothing, and said: "We would regard such a course as quite inappropriate. Judges do not have a discretion as to whether they will deal with matters which come regularly into their lists for determination. Subject to the pressure of business and availability of time their duty is to decide matters that come before them. Judicial distaste for the nature of the matter that arises for decision, or the procedural course that has been adopted by the parties, is not a reason for declining to deal with a matter" (at 479). 1. It is true that there are indications in some decisions that some judges may have considered that there is such a discretion. More careful analysis demonstrates that those indications are deceptive. An example is to be found in the judgments in R v J (1987) 9 NSWLR 615. R v J was concerned with the predecessor to s 108, s 5A of the Criminal Appeal Act. Although different in structure, s 5A was in substance to the same effect as s 108. Subsection (2) of s 5A relevantly provided: "(c) The Court of Criminal Appeal shall hear and determine any question submitted to it under this subsection." 1. That is no different to the requirement in s 108(2) that this Court "is to hear and determine" any question submitted. The purpose of s 5A(2) was stated by Lee J (as he then was) in R v J as follows: "The purpose of s 5A(2) is to provide a procedure whereby the court can pronounce upon a question of law raised that is or may be of importance in the conduct of criminal trials in this State. The mere fact that a trial judge has made an error of law will not be sufficient. The question of law raised should be one of substance, the significance of which to the criminal law does not come to an end when the trial in which it arose concludes." (at 616). 1. Carruthers J agreed without further elaboration; Hunt J (as he then was) also agreed, adding: "It has been said time and again that the procedure laid down by of [sic] the Criminal Appeal Act 1912, s 5A(2), whereby following an acquittal the Attorney General may submit questions of law arising at or in connection with the trial for the determination of this Court, is not to be used simply to resolve such a question which has importance only in relation to the trial which has taken place. The decision of this Court upon such a question does not affect the acquittal obtained, and it cannot lead to a new trial of the person acquitted. The purpose of the procedure is to provide a precedent by which guidance is furnished in relation to other trials in the future. There must be involved a question of sufficient substance as to justify the adoption of the procedure, and questions of transitory or minimal significance in relation to the criminal law generally or questions which do no more than establish that the trial judge in the particular case made some error of law do not justify either argument before or decision by this Court pursuant to s 5A(2)." (at 626). 1. Lee J considered that the question raised in that case was of sufficient substance to require the determination of this Court (at 617); Hunt J considered that, while the question was undoubtedly one of law, it could have no significance in relation to the criminal law generally (at 627). 2. In Attorney-General (NSW) v X (2000) 49 NSWLR 653; [2000] NSWCA 199, the Court of Appeal found it inappropriate to answer four of five questions submitted under s 101A of the Supreme Court Act 1970 (NSW). Section 101A applies to prosecutions for contempt in which the alleged contemnor has been found not guilty. Subsections 101A(1) and (2) substantially replicate the provisions of subs (2) of s 108, with the exception, importantly, of the second sentence thereof. Instead, subs (3) of s 101A provides: "The Court of Appeal has jurisdiction to hear and determine any question submitted to it under this section." 1. Spigelman CJ, with whom Priestley JA agreed, referred (at [41]-[42]) with apparent approval to the remarks of both Lee J and Hunt J in R v J. He gave different reasons for his view that it was inappropriate to answer the questions. 2. While he accepted that the first question submitted identified a question of law (the correct test to be applied with respect to a defence to a contempt charge) the submissions made did not support error in the formulation of the relevant test by the trial judge but purported to assert error in the application of the correctly stated test (which is not a question of law and was therefore not within s 101A). He found it inappropriate to answer the second question because the submissions focussed on an issue different to that stated in the question as submitted. The third did not constitute a question of law because it was "too closely tied to the facts of the particular case"; the fourth he declined to answer because no submissions were directed to it. 3. It is apparent from this analysis that, in declining to answer the questions submitted, the Chief Justice did not rely on any discretion to do so. Rather, as presented, the questions did not come within s 101A. 4. It is also to be noted that, notwithstanding the criticisms in R v J by Lee J and Hunt J of the manner in which the jurisdiction conferred by s 5A(2) of the Criminal Appeal Act was invoked in that case, the Court did proceed to answer the questions submitted. I read the observations extracted from the judgments of Lee J and Hunt J, in R v J, as expressions of caution. The procedure for which provision was made by s 5A(2) of the Criminal Appeal Act and is made by s 108(2) of the Appeal and Review Act ought to be used sparingly. However, if any question submitted by the Attorney General satisfies the description of a "question of law arising at or in connection with the trial" the court is obliged to answer it. 5. In my opinion there is no discretion to decline to answer any question properly and regularly submitted under s 108. I would therefore reject the third preliminary issue raised on behalf of Mr Burton. But a question that does not satisfy the twin requirements that it (i) be a question of law and (ii) arises at or in connection with the trial will not be a question properly and regularly submitted, and the court has no jurisdiction to answer it. 6. I then return to the first and second preliminary issues: 1. (i) are the questions questions that arose at or in connection with the trials?; 2. (ii) are the questions properly characterised as questions of law? 1. If, in respect of any of the questions submitted, a negative answer is given to either question (i) or (ii), this court should adopt the course taken by Spigelman CJ in Attorney-General (NSW) v X and decline to answer. If, however, both questions are answered in the affirmative in respect of any of the three questions submitted, it is necessary to proceed to answer that question. It is not necessarily the case that all three questions submitted are to be characterised identically. 2. I will deal with these issues in reverse order. Are the questions submitted questions of law? 1. What constitutes a question of law was the subject of extensive consideration and analysis by this Court in Orr v Cobar Management Pty Ltd. Bathurst CJ and Bell P, in a joint judgment (with which Johnson, Garling and Lonergan JJ agreed) pointed out that, 25 years ago, the High Court had acknowledged that, notwithstanding the efforts of many distinguished judges and jurists to formulate tests for distinguishing between questions of fact and questions of law "no satisfactory test of universal application has as yet been formulated": Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 394; [1996] HCA 36. 2. Nor did their Honours attempt such a formulation. One proposition that emerges from their Honours' review of authority is derived from the judgment of Spigelman CJ (with whom Priestley JA agreed) in Attorney-General (NSW) v X to which I have already referred in the context of the third preliminary issue. There his Honour said: "The determination of whether a particular alleged error in matters such as fact finding, the exercise of a discretion or a process of evaluation answers the description 'question of law', will depend on the scope, nature and subject matter of the statute, including the nature of the body making the relevant decisions." (at [28]) 1. It will be remembered that the legislation under consideration in that case was s 101A of the Supreme Court Act, which has significant parallels with s 108 of the Appeal and Review Act, including the requirement that any question submitted be "a question of law arising from or in connection with the proceedings". (I see no material difference between a question of law "arising from" (as in s 101A) and a question of law "arising at" (as in s 108(2)) the proceedings). Spigelman CJ (at [36]) considered it relevant in the construction of "question of law" as it appears in that provision that the answer to be given to any question submitted was incapable of having any consequential effect on the outcome of the proceedings. That was because s 101A(4), like s 108(3), expressly provides that the determination of any question submitted does not in any way affect or invalidate any finding or decision given in the primary proceedings. That led his Honour to propose (without finally deciding) that, for the purposes of s 101A, the construction of the words "question of law": "… may well be closer to the scope of the formulation 'question of law alone' which appears in some statutes" (at [43]). 1. The "scope, nature and subject matter" of statutory provisions such as s 108 was stated by the High Court in Mellifont v Attorney General (Qld) (1991) 173 CLR 289 at 305; [1991] HCA 53. The purpose of the provisions is to enable the relevant authorities "to secure a correct statement of the law so that it would be applied correctly in future cases". It is "… a standard procedure for correcting error of law in criminal proceedings without exposing the accused to double jeopardy … designed to enable the Crown to secure a reversal of a ruling by a trial judge without infringing the common law rule that the Crown cannot appeal against a verdict of acquittal … [Such a provision] enables the Court of Criminal Appeal to correct an error of law at the trial." 1. To determine whether any of the questions submitted does raise a question of law, or a question of law alone, it is necessary to construe that question as framed. In relation to questions 1 and 2 that is no easy task. As I have indicated above, the clarity of these questions is sadly lacking. These questions need to be construed in the context of the trial and in the context of the trial judge's decision, including her reasoning process. 2. The structure of questions 1 and 2 is to postulate a set of facts (the facts on which the Crown relied at trial) and to ask whether those facts were incapable of establishing the necessary causal link between the deceptions alleged and the financial advantage obtained or the financial disadvantage suffered. To be fair to the drafter of the questions, it is likely that they were formulated to take account of the trial judge's reasoning process and her conclusions. Inherent in the questions and the argument advanced are the propositions that the decision to direct the jury to return verdicts of acquittal was erroneous in law, and that it ought to be corrected in order to preclude repetition of the error in future cases. 3. While causation is generally, if not always, a question of fact (as discussed below), the capacity or incapacity of one circumstance to be causally related to another is a question of law. The conclusions of the trial judge, set out at 21 above, are, for the most part, framed in terms of fact finding. Her Honour does not explicitly say that the asserted deceptions were not capable of causing the financial advantage or financial disadvantage on which the Crown relied. 4. Two circumstances belie the proposition that the findings were findings of fact, and not conclusions of law. First, the trial judge was empowered to direct verdicts of acquittal only if the facts on which the Crown relied were incapable of supporting the charges: Doney v The Queen (1990) 171 CLR 207 at 214-5; [1990] HCA 51. If the evidence adduced in the Crown case, even if tenuous or inherently weak or vague, is capable of supporting a verdict of guilty, the matter must be left to the jury for decision. The only basis on which the trial judge reached the conclusion that the evidence was incapable of supporting verdicts of guilty was the issue of causation: her decision to direct the verdicts of acquittal carried the necessary implication, regardless of how the reasons and conclusions were expressed, that she held that the Crown evidence was incapable of establishing the necessary causal connection – that is, a causal connection between the deceptions and the financial advantages or financial disadvantages. Her reasoning was that the causal chain between the deceptions and the financial advantages or financial disadvantages constituted by the winnings was broken, or severed, when the deceptions gave rise to "an opportunity to lay a bet" ([101]), as distinct from giving rise to the "winnings". 5. Second, the opening words of [104] clearly purport to state a legal conclusion: "At law, what [Mr Burton] obtained by virtue of his deception was the benefit of an opportunity to potentially obtain a financial advantage" (italics added) 1. Questions 1 and 2, properly construed, seek to challenge the correctness, as a matter of law, of these conclusions. Thus construed, each is a question of law. 2. There could be no serious argument that question 3 does not raise a question of law. No argument to the contrary was advanced. 3. Each of the questions submitted therefore raises a question of law. Did the questions (or any of them) arise at or in connection with the trial? 1. This Court does not have available to it transcript of the trial, nor the submissions that were made in support of the application for directed verdicts. It is therefore difficult to say with confidence that issues as to the capacity of Mr Burton's asserted deceptions to cause the asserted financial advantages or financial disadvantages expressly arose in the trial. But – and Mr Boulten appeared to accept this – once the trial judge directed the verdicts on the basis of the absence of adequate evidence of causal connection (that is the capacity of the Crown evidence to establish the causal connections as set out above) the issue clearly arose in connection with the trial. 2. Questions 1 and 2 satisfy both requirements of s 108(2), as does question 3. The capacity of a bet to constitute a financial advantage or financial disadvantage arose in connection with the trial when the trial judge held, as she did at [101] and [104], that the causal chain was severed when Mr Burton obtained the opportunity to place a bet. 3. All questions submitted therefore satisfy the requirements of s 108, and must be answered. Questions 1 and 2 - Causation 1. To establish the necessary causal connection for the purposes of s 192E(1)(b) of the Crimes Act, the Crown had to prove, to the satisfaction of the jury beyond reasonable doubt, that the deception was: "… the means whereby the financial advantage was obtained, [or financial disadvantage suffered], or the effective cause of the financial advantage being obtained [or the financial disadvantage being suffered]": Flack v R at [37] citing, R v Stanhope (NSWCCA, unreported, 10 September 1987; R v Clarkson [1987] VR 962; Ho and Szeto v R. These decisions related to the predecessor of s 192E, s 178BA of the Crimes Act. They are equally applicable to s 192E. 1. It was not necessary that the Crown establish that the deceptions were the sole cause of the financial advantages or disadvantages; it would have been sufficient if the Crown established that they substantially or significantly contributed to the outcome. Whether they had the requisite causal connection was to be determined by the jury applying their common sense to the facts as they found them, appreciating that the purpose of the inquiry was to attribute legal responsibility in a criminal matter: Royall v The Queen (1991) 172 CLR 378; [1991] HCA 27. 2. The question for present determination is whether it would have been open to a jury to find, beyond reasonable doubt, that the deceptions were the "effective" (or "operative") cause of the financial advantages and financial disadvantages. Unless it could properly be said that there was no evidence sufficient to support such a conclusion (even if the available evidence were tenuous or inherently weak or vague), the question was one of fact for determination by the jury. 3. The conclusion of the trial judge rested heavily on the decision of the Court of Criminal Appeal (UK) in R v Clucas [1949] 2 KB 226. In that case Clucas and another man (Revell) falsely pretended to a bookmaker that Revell was employed at an aerodrome and acted as a commission agent for the collection of bets for workmen at the aerodrome, and that he and Clucas were placing small bets on behalf of those individual workmen. The truth was that Clucas and Revell were placing bets in considerable sums on their own behalf. 4. Lord Goddard CJ, delivering the judgment of the Court, formulated the relevant question as: "Does a man who induces a bookmaker to bet with him by making false pretences as to his identity or as to the capacity in which he is putting on the bets, obtain money by false pretences if he is fortunate enough, having made those pretences, to back a winning horse so that the bookmaker pays him?" (at 229) 1. The Court concluded that it was: "… impossible to say that there was an obtaining of the money by the false pretences which were alleged, because the money was obtained not by reason of the fact that the people falsely pretended that they were somebody else or acting in some capacity which they were not; it was obtained because they backed a winning horse and the bookmaker paid because the horse had won. No doubt the bookmaker might never have opened an account with these men if he had known the true facts, but we must distinguish in this case between one contributing cause and the effective cause which led the bookmaker to pay the money. The effective cause which led the bookmaker to pay the money was the fact that these men had backed a winning horse. … Although these two men induced the bookmaker to bet with them by means of a false pretence, what the court cannot see is that that false pretence was the false pretence which led to the payment of the money. What led to the payment of the money was the fact that these men backed a winning horse by inducing the bookmaker to bet with them." (at 229-230) 1. The trial judge went on to refer to a number of other decisions. In one earlier case (R v Button [1900] 2 QB 597) Mr Button was charged with attempting to obtain property by false pretences. The relevant facts were that an athletics competition was being held at which two entries in the name of a man called Sims were submitted. The entry form required details of the entrant's last four races. On the entry form it was stated that Sims had never won a race. His previous history, as disclosed on the entry form, showed that he was "only a moderate runner", and he was accordingly, assigned a favourable handicap. Sims did not participate in the contest. Button, who was a more talented athlete, competed in his place and won the race as a result of which (if he had not been prevented from doing so) he would have claimed the prize money. On enquiry by the organisers of the race Button stated that he was Sims, that the performances identified on the entry form were his own, and that he had never won a race. All these statements were untrue. Button was convicted of the offence charged. 2. On a case stated the Court of Crown Cases Reserved rejected an argument that Button's victory in the race, and therefore his entitlement to the prize money, was due to his own athletic talent and not to his false representations; the Court held that the victory was due also, at least in part, to the false pretence as to his athletic history, since that was what allowed him the favourable handicap. Importantly, the court held that the questions to be decided were "pure questions of fact" and had been properly left to the jury. 3. A very similar set of circumstances arose in R v Lambassi [1927] VLR 349. In the Full Court of the Supreme Court of Victoria, McArthur J, reading the judgment of the Court, said: "Once it is admitted that there is evidence upon which the jury might find that the prisoner made the false representations with the fraudulent intention of thereby obtaining the prize, the only remaining question is whether there is evidence that the prize was in fact 'thereby' obtained – that is to say, whether it was obtained as a direct result of the fraud. … If in fact the fraud operated as a direct cause of the payment of the money, it is immaterial that the chain of causation was different from that which the prisoner intended or expected. … The fact that the money would not have been paid to the prisoner if he had not, by his own exertions, won the race is immaterial. It merely shows that it was not solely in consequence of the prisoner's fraud that the money was paid to him, but partly in consequence of the fraud and partly in consequence of his having won the race. The fraud was a direct cause – though not the sole cause – of the money being paid to the prisoner." (italics in original) (at 353-354) 1. It is difficult to reconcile the decision in Clucas with those in Button and Lambassi. The trial judge postulated a possible reconciliation of these decisions by reference to the fact that, in Button and Lambassi, the offenders were personally able to play a role in the outcome of the races and achieve the wins, something that Clucas could not have done (and something that Mr Burton could not have done). The distinction is not material to the question of causation. 2. Not referred to by the trial judge, but also of interest, is the decision of the Court of Appeal (UK) (Criminal Division) in R v Steven Henry Miller (1992) 95 Cr App R 421. The facts of that case can be stated briefly. Miller, who was not, but purported to be, a licensed taxi driver, transported, on three separate occasions, passengers to destinations for which he charged extortionate fees. He was convicted of three counts of offences against a provision in substantially similar terms to s 192E(1)(b). The Court rejected an argument that, because in at least two of the cases the victims had paid the money despite holding suspicions about the legitimacy of Mr Miller's operation of the taxi, relevant causation had not been established. The Court held that: "… it was a question of fact for the jury to decide whether or not the prosecution had made out their case. They had to answer the question what was the effective cause of the transfer of this money." (at 426) 1. The Court referred to yet another decision, R v King; (1987) 84 Cr App R 357; [1987] QB 547. In that case the appellants persuaded an elderly widow that they were from a firm of tree surgeons, and that she had four trees that needed urgent removal, which they offered to do for a stated price. The enterprise was thwarted before the money was paid to the offenders. The appellants were charged with and convicted of attempting to obtain property by deception. 2. The Court rejected an argument that, because the relevant property (the money) would have been obtained by reason of the work carried out rather than by reason of any deception, causation had not been established. It considered an argument based on remoteness in the context of causation and said: "In our view, the question in each case is: was the deception an operative cause of the obtaining of the property? This question falls to be answered as a question of fact by the jury applying their common sense." (at 553) 1. Of all these decisions, Clucas stands alone as excluding a causal connection between the deception and the benefit, or advantage, gained. In all other cases, that connection was treated as a factual matter for jury determination. Clucas was, as the trial judge observed, referred to by Bathurst CJ (at [352]) in Duncan, but that reference was limited to identifying the decision as one of a number to the effect that, in a charge under s 192E(1)(b), the deception alleged must be "the means by which the money was obtained or the effective cause of it being obtained". The Chief Justice did not endorse the manner in which that principle was applied to the facts in Clucas. 2. I am comfortably satisfied that it would have been open to the jury, properly directed, to have concluded that the asserted deceptions (if proved) were the means (or part of the means) by which "the winning margins" or "customer profits" were paid. True it is that a "step along the way" was the placement of the bets, but it was by no means necessary that that step severed the causal chain. 3. The facts alleged by the Crown were such as to be capable of satisfying the relevant tests of causation. They were not "incapable of constituting a financial advantage obtained" [or financial disadvantage caused] by the deception. 4. Accordingly, questions 1 and 2 ought to be answered "no". Question 3 1. Question 3 asks whether a bet is capable of constituting a financial advantage for the purposes of s 192E(1)(b). 2. "Financial advantage" and "financial disadvantage" are undefined in the Crimes Act. In Matthews v Fountain [1982] VR 1045 Gray J observed (at 1049) that the concept of "financial advantage" is a simple one, "expressed by the use of two common words, each of clear meaning". O'Bryan J repeated those observations in R v Walsh (1990) 52 A Crim R 80 at 81. They were referred to again, (with apparent approval) by this Court in Elias by Blanch J at [41] – [42]. In the same case Basten JA accepted that the word "advantage" is a word capable of different connotations and nuance in different circumstances, but said that in its statutory context it bears its ordinary usage. He considered that whether (in fact) a particular circumstance (in that case, a loan) constitutes a financial advantage may depend upon the circumstances at the time – in other words, whether a loan constitutes a financial advantage is a question of fact (at [19]-[20]). 3. A "bet" when used as a noun, is defined in the Macquarie Dictionary as: "A pledge of something to be forfeited, in case one is wrong, to another who has the opposite opinion"; and "that which is pledged". 1. A "bet" is a double-sided concept. On the one hand the bettor pledges something (often, as in this case, an amount of money) on the prediction that something will happen (often, as in this case, that a particular horse or dog will win a race) on the basis that if the prediction is wrong the thing pledged will be forfeited. On the other hand, the recipient of the bet also pledges something (often, as in this case, an amount of money, usually greater than the amount pledged) on the prediction that the bettor's prediction is wrong (and that a different horse or dog will win the race) on the basis that if that prediction is wrong and the bettor's prediction is correct, the amount of money pledged will be forfeited to the bettor. 2. At any time until the event on which the prediction is based has occurred, the bet has a potential value. Where the bet is placed on a horse or dog race, until the race is run and won the bet has potential value. After the race is run and won the bet has an ascertainable value to one or other of the parties. 3. Prior to crystallisation of the rights of the parties to a bet by the completion of the event with respect to which it is placed, the bet is a tradeable commodity. It may be, following the reasoning of Basten JA in Elias, that whether, in a particular case, a bet does in fact constitute a financial advantage (or financial disadvantage) will depend on the circumstances of the case. But the answer to question 3 as finally submitted is that a bet is capable of constituting a financial advantage for the purposes of s 192E(1)(b) of the Crimes Act. Question 3 should be answered "yes". 4. Finally, attention should again be drawn to subs (6)(a) of s 108 of the Appeal and Review Act. Subsection (6) prohibits publication of any report of a submission made under s 108(2), contravention of which prohibition is punishable as a contempt of the Supreme Court. Those submissions are necessarily recorded in these reasons. Those considering any reporting of the submissions of the Attorney General should be aware of the prohibition, and the potential consequences of publication in breach of the prohibition. 5. The answers I propose to the questions submitted are: Question 1: No. Question 2: No: Question 3: Yes. 1. CAMPBELL J: I have had the very considerable advantage of considering the judgment of Simpson AJA in draft. I agree with each of the answers her Honour proposes to the three questions submitted and with her Honour's reasons, including those given for the disposition of the preliminary questions. 2. I would only wish to add one observation to what her Honour has written about question 3. The chance to place a bet involves an opportunity to win money and is of value. It is therefore capable of being a financial advantage. Without trivialising the issue, this idea is well expressed in the vernacular saying, "You've got to be in it, to win it" familiar to all Australians. In many circumstances which it is unnecessary to multiply, the law treats a chance as being of real and measurable value, even if impervious to precise calculation: Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20; Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; [1994] HCA 4. 3. Purchase of a lottery, or Lotto, ticket may involve odds so disadvantageous to the purchaser as to be entirely speculative and of no value at all. The odds available in a horse or greyhound race are unlikely to involve the same degree of speculation, especially to a professional punter, so that the bet placed itself is value to both the punter and the bookmaker from their different standpoint in the transaction. These considerations are, of course, as Simpson AJA makes clear, questions of fact for determination by the tribunal of fact; in a criminal trial, the jury, not the judge. 4. N ADAMS J: I have had the advantage of reading the judgment of Simpson AJA in draft. 5. I agree with her Honour, for the reasons provided, that the preliminary objections to the application should not be upheld: the three questions framed all fell within the categories permitted by s 108(2) and are all questions of law. Further, the statutory language of s 108(2) does not confer upon the Court a discretion to decline to answer all or any of the questions submitted. 6. As for the three questions submitted, I agree with her Honour that they should be answered in the form proposed by her Honour. 7. As for the first two questions, I am satisfied that it was open to a jury to find that the deception was causally linked to the financial advantage ultimately received. Simpson AJA has analysed the relevant authorities at [20]-[33]. Except for the decision in R v Clucas [1949] 2 KB 226, these decisions are authority for the proposition that causation is a question of fact for the jury. Accordingly, there could only be directed verdicts of acquittal if the evidence, taken at its highest, could not sustain a verdict or verdicts of guilty. 8. The trial judge was satisfied there was evidence to support the element of deception being left to the jury but directed verdicts of acquittal on the basis that there was no case that any winnings were caused by the deception. It is to be accepted that a horse would have to win before the winnings could be paid over, but without the winning ticket (obtained by deception) there could be no winnings at all. It was ultimately a question of fact for the jury whether causal connection cold be proved beyond reasonable doubt. 9. As for the third question, I am satisfied, for the reasons provided by her Honour, that a bet is capable of being a financial advantage. It has value on its face being the amount of the bet placed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 May 2021