Fraud and Identity Offences - ACT

In the ACT, obtaining property by deception (under Section 326 of the Criminal Code 2002) is an offence where a person uses a dishonest trick or misleading act (deception) to take someone else’s property, intending to permanently deprive the owner of it, with penalties up to 10 years jail or 1000 penalty units (around $150k). It involves dishonestly gaining property (or financial advantage) through deceit, and the intention to permanently deprive the owner is crucial, even if the property is intended to be returned later. 

In Cannane v J Cannane Pty Ltd [1998] HCA 26, Justice Gaudron established that ‘fraud’ “involves the notion of detrimentally affecting or risking the property of others, their rights or interests in property, or an opportunity or advantage which the law accords them with respect to property.”

This judicial interpretation recognises that fraud extends beyond simple theft or misappropriation, it encompasses any dishonest conduct that affects another person’s property rights, interests, or legal opportunities relating to property.

Fraud can take numerous forms, including but not limited to:

• Financial fraud, which involves deceptive practices such as securities manipulation and banking fraud;
• Identity fraud, which entails the unauthorised use of personal information for financial or material gain;
• Insurance fraud, involving false or exaggerated claims to secure unwarranted benefits;
• Taxation fraud, characterised by the deliberate evasion of tax obligations through misrepresentation or concealment of income; and
• Corporate or employee fraud, which includes embezzlement, false accounting, and the misappropriation of company assets for personal advantage.

The common element across all categories of fraud is the intentional use of deceit to secure an unfair or unlawful advantage. Regardless of the specific form fraud takes, each instance involves deliberately misleading others through false representations, concealment of material facts, or deception of trust and confidence.

1. Under section 326 of the Criminal Code, it is an offence to obtain property by deception.
2. Obtaining property by deception carries a maximum penalty of a $160,000.00 fine, imprisonment for 10 years, or both.
3. Alternative verdicts are available for this offence.
4. The offence is indictable, meaning it can be finalised in the ACT Magistrates Court or ACT Supreme Court.

Engaging a lawyer early is advisable when facing charges of obtaining property by deception in the ACT.

As defined by section 325 of the Criminal Code, deception can include any false or misleading statement or conduct, whether by words or actions, that is used to intentionally or recklessly mislead someone about a fact, law, or another person’s intentions.

Deception can be either:

1. Intentional; where an individual deliberately set out to mislead, or
2. Reckless; where a person is aware of a substantial risk that their conduct will mislead but proceeds anyway, disregarding whether the representation is truthful.

Deception involves any form of misleading conduct, including but not limited to:

• Verbal representations and written statements
• Actions or conduct that convey false impressions
• Silence or omission where there is a duty to disclose
• Body language or gestures that mislead
• Creating false documents or records.

1. That you dishonestly obtained property.
2. That you obtained the property by deception.
3. That the property belonged to someone else.
4. That you had the intention of permanently depriving the other person of the property.

Q: What does it mean to ‘obtain’ property?

A: A person obtains property if the person:

• Obtains ownership, possession or control of it for the person or someone else; or
• Enables ownership, possession or control of it to be retained by the person or someone else; or
• Induces a third person to pass ownership, possession or control of it to someone else; or
• Induces a third person to enable someone else to retain ownership, possession or control of it.

Q: What does it mean to dishonestly obtain property? 

A: The legal definition of a dishonest act refers to what would be considered as dishonest as per the standards of ordinary people and as one known to the defendant to be dishonest according to the standards of ordinary people.

However, obtaining property belonging to another is not dishonest if you believe that the person to whom the property belongs could not be discovered by taking reasonable steps (this does not apply if you held the property as a trustee or personal representative).

Obtaining someone else’s property can still be dishonest even if you or another person is willing to pay for it.

It is up to the trier of fact in the matter to determine whether or not you acted in dishonesty.

Q: What is meant by ‘deception’ under the law? 

A: Deception means an intentional or reckless deception, whether by words or other conduct, and whether as to fact or law. Deception further includes a deception about the intention of the person using the deception or anyone else, and conduct by a person that causes a computer, a machine or an electronic device to make a response that the person is not authorised to cause to do.

Q: How does the prosecution prove that the property belonged to someone else? 

A: Property will be considered to be belonging to someone if they have possession or control over the property, or have a proprietary right or interest in it (other than an equitable interest arising only from an agreement to transfer or grant an interest, or from a constructive trust).

A lawyer can challenge the prosecution’s claim that property belonged to someone else by disputing ownership, questioning possession or control, asserting proprietary rights, exploring equitable interests, and challenging evidence presented.

Q: What if it is unclear if the property belonged to someone else? 

A: Many factors can make it unclear if the property belongs to someone else. If the property belongs to two or more people, then a reference to one of the people to whom the property belongs can be taken as a reference to each of them.

If property is subject to a trust, then the person to whom the property belongs can include anyone who has a right to enforce the trust. Further, an intention to defeat the trust is an intention to deprive any such person of the property.

Property of a corporation solely belongs to the corporation despite a vacancy in the corporation.

If person A receives property from or on account of someone else (person B) and is under a legal obligation to B to retain and deal with the property or its proceeds in a particular way, then the property or proceeds of the property belong to B, against A.

If person A gets property by a fundamental mistake and is under a legal obligation to make restoration (in whole or in part) of the property, then the property or its proceeds belong (to the extent of the obligation and against A) to the person entitled to restoration (person B). An intention not to make restoration is an intention to permanently deprive B of the property or the proceeds, and an appropriation of the property or proceeds without B’s consent. A fundamental mistake in this situation means either a mistake about the identity of the person getting the property, a mistake about the essential nature of the property or a mistake about the amount of any money (if the person getting the money is aware of the mistake when getting the money).

Q: How do the prosecution prove that you had the intention of permanently depriving someone else of their property? 

A: It will be found that you had the intention of permanently depriving another person of their property if the prosecution can prove that you appropriated property belonging to another person without meaning them to permanently lose their property and you intended to treat the property as your own to dispose of anyway, regardless of the owner’s rights over the property.

Taking property with an intention to return it to the owner in due course would of course not meet this element of the offence.

It can sometimes be difficult to determine whether actions taken are considered an attempt to treat the property as one’s own to dispose of.

For example, if you borrow or lend property belonging to another, the borrowing or lending can amount to treating the property as your own to dispose of regardless of the rights of the person lending the property to you. Nevertheless, you can only be seen as intending to permanently deprive if the borrowing or the lending is for a period and, in circumstances, equivalent to an outright taking or disposal.

Further, if you have possession or control (lawfully or not) of property belonging to another person, and you part with the property under a condition about its return that you may not be able to carry out, and that parting has been done for your own purposes and without the other person’s (the owner’s) authority, then that parting can be seen as treating the property as your own to dispose of, regardless of the owner’s rights.

There are also other circumstantial situations in which you may be considered by the courts to have intentionally permanently deprived someone else of property.

Q: What alternative verdicts are available? 

Section 371 of the Criminal Code deals with the alternative verdict for charges of theft or obtaining property by deception and deceiving. If you are on trial for theft or obtaining property by deception and the trier of fact is not satisfied that you committed the offence, but they are satisfied beyond reasonable doubt that you committed an offence of receiving, then you may be found guilty for that offence, but only if you have received procedural fairness. This effect can also occur vice versa, wherein while on trial for receiving, the trier of fact may find you guilty of the alternative verdicts of theft or obtaining property by deception, provided you have been given procedural fairness in the finding of guilt.

Finally, section 372 of the Criminal Code states in a trial for theft, a trier of fact may find the defendant guilty of obtaining property by deception if they are satisfied beyond reasonable doubt that the defendant committed that offence and if the defendant has been given procedural fairness in relation to that finding of guilt. This effect can also occur vice versa, wherein while on trial for obtaining property by deception, the trier of fact may find you guilty of theft, provided you have been given procedural fairness in the finding of guilt.