FRAUD OFFENCES (WA)

Fraud is an offence under section 409 of the Criminal Code 1913 (WA). The maximum penalty for this offence is 7-year imprisonment unless the person deceived is of or over the age of 60 years in which case the maximum penalty is 10 years imprisonment.

If the value of the property obtained or delivered; or a benefit gained, or a detriment cause is less than $50,000.00 the charge can be dealt with summarily. Accordingly, the maximum summary penalty is imprisonment for 2 years and a fine of $24,000.00 unless the person deceived is of or over the age of 60 years in which case the maximum penalty is 3 years and a fine of $36,000.00.

In order to prove the accused guilty of the offences at the time and place alleged, the prosecution must prove each of the following elements beyond reasonable doubt.

1. The identity of the person is the accused;
2. The accused person;
   1. obtains property from any person; or
   2. induces any person to deliver property to another person;
   3. gains a benefit, pecuniary or otherwise, for any person; or
   4. causes a detriment, pecuniary or otherwise, to any person; or
   5. induces any person to do any act that the person is lawfully entitled to abstain from doing; or
   6. induces any person to abstain from doing any act that the person is lawfully entitled to do.
3. The accused did so with intent to defraud; and
4. The accused did so by deceit or any fraudulent means.

Intent to Defraud

The phrase ‘intent to defraud’ in s 409(1) has its common law meaning. To defraud is to deprive a person of something (including money, property or some lawful right, interest, opportunity or advantage) that has actual or potential economic value by dishonest means.

That is, to defraud must involve something more than the use of dishonest means. The effect of the dishonest means must be to deprive a person of something of actual or potential value.

It follows that an intent to deprive a person of money which is, or which the defendant honestly believes is, presently due and owing to another is not an intent to defraud even if deceit or other dishonest means are used.

Intent to defraud at common law is a single intention with three components being an intention to:

1. deprive a person
2. of something that is of actual or potential economic value
3. by dishonest means. In the context of s 409(1)(c), there is a fourth component, being an intention to gain a benefit, pecuniary or otherwise, for any person.

The third component of the intention, being an intention to use dishonest means, will ordinarily be established by proof of the first objective element, namely that the accused has used ‘deceit or any fraudulent means’. However, proof of deceit or fraudulent means is not itself sufficient to establish the first two components of an intent to defraud.

Whilst an accused can act dishonestly without having an intent to defraud. In most cases the person deceived and the person defrauded are the same. However, it the offence of fraud does not require that the person defrauded is the same as the person deceived.

Honest Claim of Right

If there is an honest claim of right there cannot be any intention to defraud. Therefore there is no scope for the operation of section 22 of the Criminal Code – Honest claim to right because intention to defraud is an element of fraud. An honest claim of right to the property in issue can negative an intent to defraud even if based on a mistaken view of the law and is unreasonable. The reasonableness or otherwise of the claim may inform an assessment as to whether an accused has an honest belief in his claim.

Deceit

Deceit means ‘to induce a person to believe that a thing is true which is false, and which the person practising the deceit knows or believes to be false’.

That is, ‘deceit’ requires that the offender:

1. engage in conduct that induces a person to believe something is true which is in fact false; and
2. knows or believe the thing to be false.

The accused’s deceit or fraudulent means must substantially or significantly contribute to the occurrence of that circumstance.

Any Fraudulent Means

‘Any fraudulent means’ encompasses other conduct falling outside the scope of ‘deceit’, it encompasses all other means which can properly be stigmatised as dishonest. It includes the active concealment of the true state of affairs. Graham-Helwig [2005] WASCA 127 per Wheeler JA [14], Pullin JA concurring [31];

Callum Parker, Lawyer

Citations

¹ Bolitho v The State of Western Australia [2007] WASCA 102 [152].

² Balcombe v De Simoni (1972) 126 CLR 576; Bolitho [140] – [143].

³ The Queen v Kastratovic (1985) 42 SASR 59; Roberts v The State of Western Australia (2005) 29 WAR 445.

⁴ Hunter v The State of Western Australia [2014] WASCA 184 [39]-[41].

⁵ Graham-Helwig v The State of Western Australia [2005] WASCA 127 [13].

⁶ Skelly v The State of Western Australia [2020] WASCA 3 [37].

⁷ Hunter v The State of Western Australia [2014] WASCA 184 [37]-[38]; Graham-Helwig [2005] WASCA 127 [14], [31].