Where a fraud prosecution under s 409(1) of the Criminal Code (WA) is put on several alternative bases as to the 'deceit or fraudulent means', the trial judge must direct the jury that they must be unanimously agreed on at least one particular allegation of deceit or fraudulent means before convicting. Failure to give this direction renders convictions unsafe. The test for reliance requires that the deceit or fraudulent means be a material cause of the benefit gained, but need not be the sole cause. In exercising the discretion whether to order a retrial, the court will consider the strength of the prosecution case, the accused's age and health, and the burden of a further trial.
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