R v Saba

In this case the accused had been convicted of the offence of dishonestly obtaining a benefit, namely that he changed the ASIC records in relation to two companies such that he was shown as the controlling director of those companies.  The charge alleged that the “benefit” obtained was that the accused “acquired the public appearance of being legitimately appointed sole director and sole shareholder in each of the companies” and that he thereupon acted as a director of the companies.  Jackson J (with whom the other members of the Court agreed) noted the difficulties associated with the circular definitions of “benefit” and “property” in the Code as well as the connection between the concept of “benefit” and “advantage”.  His Honour assayed a variety of instances where the concept of “benefit” was used in the Code, noting that the scope of the concept is dependent upon the context in which it is used.  Turning to the case at hand it was observed that the allegation against the accused was not that he gained the powers of a director but that he gained the “appearance” of control of the company such that other persons would assume that he had become the duly appointed director of the company.  It was held that the potential that some person might make the assumption in the future is not a benefit or advantage for the purpose of s 408C(1)(d).  Whilst the obtaining of the appearance of being a director might have been a step along the way to the gaining of an advantage, it was not, in itself, such an advantage.