Case: Linhart v Elms (1988) 81 ALR 557
Outcome: cited
relation to the application of each of these provisions to the relevant conduct, the applicant made the following submissions: Dual Criminality of Category One Section 178BA Crimes Act 1900 (1) Section 178BA requires the accused to have practised a deception. According to the translated copy of the Arrest Warrant, the co-accused, El-Najarin, signed the contract with Mobilcom. There is no allegation that the applicant had any personal dealings with Mobilcom, that could be considered to have been deceptive. Thus, there is no allegation that the applicant practised a deception. (2) For s 178BA to be satisfied, there must be a causal connection between the deception practised and the advantage obtained. There is no issue that a financial advantage was obtained but whether it be the 15 euros advance commission or the 20 euros discount in respect of the purchase price, they were both obtained prior to the registration of the SIM cards, and for that reason there can be no causal connection between the two. (3) The registration of the SIM cards under false names could not constitute a relevant deception because registration occurred using a computer system called maui. The registration of the SIM cards occurred not through an employee of Mobilcom; where no person is deceived but rather a computer system, no criminal liability can attach: see In re Holmes [2005] 1 WLR 1857, 1862 1863 at [11] [12] per Stanley Burnton J; Davies v Flackett [1973] RTR 8 per Bridge J; Kennison v Daire (1985) 38 SASR 404 per O'Loughlin J ('a machine cannot be the subject of deception'), cited with approval R v Baxter [1988] 1 Qd R 537, 539 per Connolly J and R v Fischetti (2003) 192 FLR 119, 124 at [22] per Gray J. In this context, the respondent may not place reliance upon the extended definition of deception in s 178BA(2)(b) of the Crimes Act because there is no suggestion that the applicant or his co-accused were not authorised to register SIM cards. On the contrary, it appears to have been the very purpose of the contract with Mobilcom. Therefore, the registration of the SIM cards was not a relevant deception for the purposes of s 178BA , even if the data entered was 'false'. Section 178A Crimes Act (4) In the alternative, the respondent submitted that the relevant conduct would be punishable under s 178A Crimes Act . The respondent relied upon the receipt of what are termed 'advance commission payments'. However, there is no suggestion in the copy of the arrest warrant or indeed in any document whatsoever, that the applicant was to apply such advance commission payments in any particular way, that being a requirement of s 178A. Overall, not one of the documents discloses the purpose of the advance commission payments. Although there is reference to such payments, the purported terms upon which such payments were purportedly made are not specified in any supporting document. Thus, there is insufficient information, upon which this Court could determine whether the conduct would also be punishable in New South Wales. (5) Moreover, there is no allegation that the applicant collected, or even received, any moneys. Since the terms of the contract are not set out in any detail whatsoever, it may, for example, have been that Mobilcom was contractually bound to pay at a particular point in time. Where moneys have not in fact been received, there can be no liability under s 178A Crimes Act . Section 179 Crimes Act (6) The respondent next contended that dual criminality is satisfied in respect of s 179. However, this argument suffers from the same defect as that relating to s 178BA. Firstly, the respondent suggests that the false pretence was the 'fraudulent registration' of the mobile telephones. However, there is no suggestion whatsoever that the act of registration was done in order to obtain the telephones; and nor could it be, since they were all obtained much earlier. Indeed, such a suggestion would be absurd, since the phones would have to have been already in the possession of Pluscall, before they could be registered. For liability to attach, the false pretence must occur before the property is obtained: R v Steels (1867) 32 JP 309. (7) Insofar as the respondent relies upon the concluding of the contract with Mobilcom, this too cannot found the basis for criminal liability, since there is no allegation that the applicant made any false pretence. Furthermore, there is no allegation that the respondent 'obtained any property' as required by s 179. At best, the company, Pluscall, obtained the property. Again, there could be no conviction pursuant to s 179 for the conduct alleged. Section 176A Crimes Act (8) Where a person is charged with an offence contrary to s 176A , 'the prosecution [must] prove that the [accused] used dishonest means to prejudice the rights of such a person in his or her dealings with [the body corporate]': Spies v The Queen [2000] HCA 43 ; (2000) 201 CLR 603 , 631 at [81] per Gaudron, McHugh, Gummow and Hayne JJ. As set out in respect of s 178BA , there is no allegation that the respondent employed such dishonest means. Accordingly, double criminality would not be satisfied in respect of s 176A. Dual Criminality of Category Two (9) In relation to the final offence, the respondent again relies upon s 178BA of the Crimes Act . However, as before, there is absolutely no allegation that the applicant dealt with MCI, except in relation to the alleged provision of purportedly false bank 'bail bonds', a translation that is patently incorrect and inadequate. The word used in the original German document is 'B&uuml;rgschaft', which correctly translates into English as 'guarantee'. Notwithstanding that, and any other possible errors, absent an allegation that the applicant practised a particularised deception upon MCI, upon which it relied, the applicant could not be guilty of an offence contrary to s 178BA. (10) Reliance is also placed upon the fact that minutes were transferred to a company in Germany by Star.Way.Com. However, there is no allegation that this fact would in any way have impacted upon MCI's willingness to provide telephone minutes, upon condition that it is paid. Thus, this act cannot be said to be causal in respect of the granting of a financial advantage. (11) Thus, the only conduct, which might be said to be relevant, would appear to be the provision of the forged guarantees. However, the purported copy of the arrest warrant, and of course its translation, is, once again, inadequately vague. It merely states, 'The accused person as well as Houggati and Mohamed Kazzaz then provided as a security for the present and future demands of MCI from Star.Way.Com a forged bail bond ...' Once again, here the word 'demands' is quite misleading. The word 'F&ouml;rderungen' in the original German correctly translates to 'claims', in the sense of legal claims. Apart from that, the warrant fails to disclose the precise conduct, which is alleged against the respondent. Did the applicant, in fact, provide the guarantee? Did he provide the guarantee to someone else, who, in turn, provided it to MCI? In particular, there is no allegation whatsoever that the applicant knew that the guarantee was forged. Compare Linhart v Elms (1988) 81 ALR 557 , 588 per Foster J: Although sub-subpara (c) clearly does not require that the whole of the available evidentiary material be laid before the magistrate in Australia, it does, in my view, at least require that precise allegations of the 'manner and means' of the making of the basic fraudulent representations be provided. (12) Section 474.2(1) of the Criminal Code suffers from the same problems. Additionally, the offence would not apply, had the same conduct occurred in Australia. In order to satisfy the provision, the person must obtain a gain from a 'carriage service provider'. That term is, in turn, defined by s 87 of the Telecommunications Act 1997 (Cth) to include persons providing a 'listed carriage service', a term defined by s 16 of the Act. These provisions demonstrate that there must be at least one point of connection with Australia. Since, the warrant does not allege that MCI had any connection with Germany, the conduct would not fall within s 474.2(1). The applicant's submission as to the non-application of s 178BA of the Crimes Act in relation to the Category Two Offence relies on the absence of an allegation that the applicant practised a particularised deception upon MCI. The criticism here seems to be directed at the generality or vagueness of the alleged deception: 'The accused person as well as Houggati and Mohamed Kazzaz then provided as a security for the present and future demands of MCI from Star.Way.Com a forged bail bond ...'. It is said that the Arrest Warrant fails to disclose the precise conduct, which is alleged against the applicant. Did the applicant, in fact, provide the guarantee? Did he provide the guarantee to someone else who in turn provided it to MCI? In particular, it is said that there is no allegation whatsoever that the applicant knew that the guarantee was forged. Reference was made to what was said in Linhart v Elms (1988) 81 ALR 557 , 588 per Foster J. On my reading of the Arrest Warrant, there is no doubt that it alleges that the applicant, together with the others named, provided the bail bond (guarantee) to MCI, and not to some third party that provided it to MCI. It is true that there is no specific allegation that the applicant knew that the bail bond (guarantee) was forged, but the implication is self-evident. I am of the view that the dual criminality requirement of subs 19(2)(c) of the Act in relation to the Category Two Offence is satisfied by recourse to s 178BA of the Crimes Act .