Attorney-General’s Application pursuant to s 108 Crimes (Appeal and Review) Act 2001 (NSW): Re Robert Burton (a pseudonym) [2021] NSWCCA 87

Attorney-General’s Application pursuant to s 108 Crimes (Appeal and Review) Act 2001 (NSW): Re Robert Burton (a pseudonym) [2021] NSWCCA 87 · Read the judgment on AustLII

Catchwords: Fraud – meaning of ‘deception’ – causation – meaning of ‘financial advantage’

AUTHOR’S NOTE: There is a really serious question here about what the statutory publication restriction means. The publication restriction in s 108(6) is called out twice by Simpson AJA in the decision (at [5]-[6] and again at [86]), but the judgment offers no advice as to what it really means.

Section 108(6) prohibits publication of ‘any report of a submission made under subsection (2)’. On a strict reading of those words, it would prohibit any reporting of the decision at all. However, reading sub-sections (a) and (b) together, I consider that a distinction is drawn between the ‘submission’ and ‘the identity of the person’. This implies that the intention is to avoid any reporting which undermines the acquittal which is being challenged – the ‘submission’ presumably including information sufficient to identify the ‘respondent’.

As I have observed, the entire judgment is available on Caselaw NSW. That implies that reporting should be fine, or at least that the Court itself does not appear to be taking it to mean that nothing at all can be publicly said about it.

In my view, at the very least it must be permissible to restate the ultimate findings of law made by the Court, without providing any other detail. To do so involves reporting neither the submissions nor the identity.

I actually think it would be fine to report the balance of the decision as well (even including the facts), but on account of the fact that I would prefer to avoid courting controversy (just this once), I have drafted the thing in the most conservative way possible – and included a rider. However, the LSJ might want to consider its position in that regard – you could just cut the whole decision, given time constraints might prevent you from getting further advice about this.

You know me well enough to know I won’t mind what you do with it

In this decision, the CCA reached two important conclusions about fraud charges. However, it was heard under a statutory provision which includes an automatic (and ambiguous) statutory non-publication order preventing publication of ‘any report of a submission made’ under the section. That notwithstanding, the whole decision is published on Caselaw NSW.

The most that can be reported with a moderate sense of confidence that the author will not be in contempt of court is the following: The CCA (Simpson AJA, with whom Campbell and N Adams JJ agreed, each with brief additional reasons) has held that:

• Pretending to be someone you are not in order to lay bets with gambling agencies is capable of being a ‘deception’ for the purposes of fraud under Crimes Act s 192E (at [77]);
• Although such a ‘deception’ will only be a ‘step along the way’ to causation (the final step being the actual winning of money), that does not mean that it severs the causal chain (also at [77]); and
• A bet, being a tradeable commodity, is capable of constituting a ‘financial advantage’. Whether, in a particular case, it meets that description, will depend on the facts of the case (at [85], [89]-[90]).