R v Wallace[2025] QCA 96

SUPREME COURT OF QUEENSLAND

HENRY J:  The appellant was convicted of the offence of Fraud.  The charge alleged he ‘dishonestly obtained property from Ricky Edward Gore’.

In 2020, Mr Gore engaged the appellant to restore his 1972 Ford Falcon XA Coupe.  A cash payment of $10,000 was made by Mr Gore to the appellant when he took possession of the vehicle.  It was agreed the appellant would be paid more for his work as it progressed.  Mr Gore transferred more money to the appellant when requested in November 2020.

On 25 January 2021, the appellant texted Mr Gore another request for payment, this time of $15,000.  The message falsely represented the appellant had completed work on the engine, the gearbox, the clutch and interior.  Much of that work was yet to be performed.  The message said the appellant needed to ‘grab another 15k off’ Mr Gore.  The appellant then messaged his bank account’s BSB and account number to Mr Gore.  Four days later, Mr Gore transferred the requested $15,000 to the appellant’s nominated account.  The appellant was thereby alleged to have dishonestly obtained property from Mr Gore.

The key fact on which this appeal is founded is that Mr Gore transferred the money to the appellant by executing an electronic funds transfer from the bank account of a company he controlled, not from his own bank account.  The appellant thus submits, as he did below, that there was no case to answer because the money was not obtained, as the charge alleges, ‘from Ricky Edward Gore’.

That submission founds both grounds of appeal, which are that:

1. that the learned trial judge erred in not upholding the no case submission; and
2. the Crown failed to prove that the $15,000 paid to the appellant was the property of Mr Gore.

The premise of the latter point exposes the issue to be determined: Does proof of the element of obtaining a property ‘from’ a person require proof that person was the owner of the property?

The charged offence provision, s 408C(1)(b) Criminal Code (Qld), requires no such thing.  It provides, ‘a person who dishonestly … obtains property from any person … commits the crime of fraud.’  The section’s focus is on a defendant’s dishonest obtaining of property from a person, not that person’s legal status vis-à-vis the property.

The appellant emphasises the legal distinction between a registered company and a natural person, citing R v Mirotsos [2022] QCA 76, which involved convictions under different subsections of s 408C than here.  That distinction was relevant in Mirotsos because it was necessary to determine whether the allegedly dishonest conduct of the defendant as a company director was authorised by the company.  The distinction is not to the same point here.  While the obtained money was owned by Mr Gore’s company, not Mr Gore, that could not logically inform whether the defendant, who had no role in the company, was dishonest in obtaining the money.

The appellant submits the money could only have been transferred by Mr Gore in his capacity as an agent of the company, so that his actions in executing the transfer can only be categorised as actions of the company.  However, the means by which Mr Gore came to have the ability to transfer the funds, namely through his position as one of the company’s agents, is a distraction.  It would not matter whether Mr Gore was acting lawfully or unlawfully in taking the company’s money to pay the appellant.  The fact remains, that is what he did.  True, it is, as the learned trial judge observed, Mr Gore’s act of transferring the money, a transfer which he falsely described in the company’s records, may have raised a duty on him to account to the company, but that did not mean the money had not been obtained from him.

The appellant places significant reliance upon R v Lenahan [2009] QCA 187, which did involve s 408C(1)(b).  Unlike this appeal, the issue on appeal there was focused on who the recipient of the obtained property was.  The complainant had parted with the subject property pursuant to a contract between the complainant and a company of which Lenahan was the sole director.  It was thus the company, not Lenahan, which obtained the property.  Fraser JA, with whom McMurdo P and Jones J agreed, observed the language of s 408C(1)(b) did not include the ‘delivery of property to someone other than the fraudster’.  His Honour reasoned it was a requirement flowing unequivocally from s 408C(1)(b) ‘that the person who obtains the property must be the person who is dishonest’.  His Honour contrasted this with s 408C(1)(c) and (d), which allow that the charged defendant does not have to be the recipient of the property or associated benefit.

However, the present issue relates to the source end rather than the recipient end of the obtaining.  At that end, the method used by Fraser JA in Lenahan, of comparing other offence provisions in s 408C, is also instructive.  Section 408C(1)(b) may be contrasted with s 408C(1)(a)(i), which speaks of the dishonest application of property ‘belonging to another’.  All that is required in s 408C(1)(b) is that the defendant ‘dishonestly obtains property from any person’.  It does not require that the dishonestly obtained property belongs to the person from whom it is obtained.

The appellant’s argument necessarily requires the implication of such a requirement from the language of the offence provision.  In that provision, the connecting work done by the word ‘from’, a preposition usually indicating the starting point or source in time or space of something, must logically be affected by what is meant by the word ‘obtains’.

Section 408C(3)(e) defines ‘obtain’, as including ‘to get, gain, receive or acquire in any way’.  Such an expansive definition tells strongly against the implication sought.  So too does s 408C(3)(f), which provides, ‘if a person obtains property from any person … it is immaterial … whether the owner passes or intends to pass ownership in the property’.

The broad definition of ‘obtain’ accommodates a broad range of possibilities.  One of them is that one can obtain property from another via the actions of that person, without that person necessarily being the owner of the property.  For example, a defendant may attend a shop and dishonestly obtain shop goods handed to the offender by the shop’s sales attendant.  The goods may be said to have been obtained from the owner of the shop goods, in the sense they were handed over by a sales attendant as the owner’s agent.  But they may also be said to have been obtained from the sales attendant whose physical actions conveyed the goods to the defendant.  The concepts are not mutually exclusive.

The learned trial judge correctly applied similar reasoning in finding there was a case to answer here.  The $15,000 may be said to have been obtained from Mr Gore’s company in that it was the owner of the account from which Mr Gore transferred the money.  But it may also be said to have been obtained from Mr Gore, given the dual features that the payment request was made of Mr Gore and it was Mr Gore who met that request by his physical actions in effecting the payment.  Those actions have the consequence that the defendant ‘obtained’, that is, ‘acquired in any way’, the money which he had requested Mr Gore to effect payment of.  The defendant thus obtained the money from Mr Gore within the meaning of s 408C(1)(b), notwithstanding that the money was owned by the company.

It follows both grounds of appeal must fail.  I would order: Appeal dismissed.

BRADLEY JA:  I agree.

NORTH J:  I agree.

BRADLEY JA:  We will adjourn the court briefly to allow the panel to be reconstituted.