Fraud and Dishonesty Offences
Fraud can include a wide variety of activities including obtaining property or money from a person or the government through dishonesty, cybercrime, using false identification and tax evasion.
Each jurisdiction in Australia has its own laws related to fraud. In the ACT fraud offences are contained in Part 3.3 of the Criminal Code 2002 and in NSW they are contained in Part 4AA of the Crimes Act 1900.
Common offences for fraud in the ACT include Obtaining property by deception (s326 Criminal Code) and Obtaining financial advantage by deception (s332). In NSW s192E is a general fraud offence that codifies the law in relation to fraud in that jurisdiction. Fraud offences are serious and penalties for these offences include fines and imprisonment for up to 10 years.
Although fraud offences vary they generally involve common elements such as obtaining a financial advantage or causing a financial disadvantage, dishonesty and deception. Another important element of fraud is that there must be an intention on the part of the accused person to permanently deprive another person of the property.
Financial advantage and disadvantage
A financial advantage includes many things such as increasing an amount of credit or hiring goods and services and then not paying for them, even if the goods have been returned. The ACT Supreme Court considered the meaning of obtaining a financial advantage in Fisher v Bennett (1987) and determined that there must be an improvement in the financial situation of the accused person. However, if a deception is used to convince a creditor to reduce or forgive a debt this might also amount to obtaining financial advantage.
An offence can still be committed whether the financial advantage or disadvantage is obtained for oneself or for another person. This is also the case if a third party is induced to do something that results in a financial advantage or disadvantage.
Dishonesty
In both the ACT and NSW “dishonesty” is defined as that which is dishonest according to the standards of ordinary people. It is also necessary that the accused person knew their actions were dishonest according to the standards of ordinary people. It is not dishonest to obtain property which includes money, if the person taking the property honestly believes they have a legal claim to it.
It is important to understand that a legal claim is not the same as simply believing you have a right to something. For example, taking money from your employer without permission because you believe you are entitled to payment or a pay rise, is not the same as having a legal claim against your employer for more money. Also one cannot use illegal means to recover property as part of a legal claim of right. Using violence, threats or trespassing to recover or obtain property could expose you to charges for other offences.
Deception
In the ACT and NSW deception means, any deception, by words or other conduct, as to fact or as to law, including—
(a) a deception as to the intentions of the person using the deception or any other person, or
(b) conduct by a person that causes a computer, a machine or any electronic device to make a response that the person is not authorised to cause it to make.
(2) A person does not commit an offence under this Part by a deception unless the deception was intentional or reckless.
There must be a causal connection between the deception used and the financial advantage or disadvantage obtained or caused. The deception must have been the means whereby the financial advantage or disadvantage is obtained, or the effective cause of it, Flack v R [2011] NSWCCA 167 [37].
Permanently Deprive
When property including money is obtained there must be an intention to permanently deprive the owner of the property at the time it is appropriated. There are many considerations to take into account when considering whether a person intended to permanently deprive another of property. Property that has been borrowed with an intention to return it to its owner will not satisfy this requirement. Factors including the length of time property has been kept, and what has been done with the property will be important considerations.
Fraud matters may be dealt in either the Magistrates/Local Court or in a higher court such as a NSW District or ACT Supreme Court. The court in which the charge is dealt with will depend on a variety of factors including the seriousness of the fraud. If you have been charged with a fraud offence and if you require legal advice or representation contact Hugo Law Group to speak with one of our experience criminal defence lawyers.
Susan Campbell, Paralegal
