Fraud - Part 4AA Crimes Act 1900

[5-5900] Introduction

Part 4AA was inserted into the Crimes Act (the Act) with effect from 22 February 2010 by the Crimes Amendment (Fraud, Identity and Forgery Offences) Act 2009. The Part reproduces to a significant degree offences from the Criminal Code (Cth). The second reading speech was delivered on 12 November 2009. The commentary below is not intended to be exhaustive and reference should also be made to the legislation and other relevant secondary sources.

[5-5910] Definitions

Dishonesty — s 4B defines dishonesty as “dishonest according to the standards of ordinary people and known by the defendant to be dishonest according to the standards of ordinary people”. It is a question of fact. As to claim of right: see Larceny at [5-6100] and the Suggested direction at [5-6165].

Deception — there is a general definition of “deception” in s 192B. It means any deception, by words or other conduct, as to fact or as to law. It must be either reckless or intentional.

Recklessness — s 4A provides “… if an element of an offence is recklessness, that element may also be established by proof of intention or knowledge”.

Obtaining property — the phrase “obtaining property of another” is defined in s 192C.

Property — is defined in s 4.

Obtaining a financial advantage obtaining a financial advantage or causing a financial disadvantage is dealt with in s 192D. A financial advantage or a financial disadvantage may be permanent or temporary.

[5-5920] Section 192E — fraud

Section 192E(1) makes it an offence for a person who, by any deception, dishonestly obtains property belonging to another or obtains a financial advantage or causes any financial disadvantage.

The obtaining may be dishonest even if the person is willing to pay for the property: s 192E(2).

The offence can involve all or any part of a general deficiency in money or other property even though the deficiency is made up of any number of particular sums of money or items of other property that were obtained over a period of time: s 192E(3).

The offence can be an alternative to a charge of larceny or an offence that includes larceny: s 192E(4).

The obtaining of the property or financial advantage or the causing of the financial disadvantage must be the result of the accused’s deception although it is not necessary to show that the person deceived suffered the loss; R v Ho (1989) 39 A Crim R 145; Flack v R [2011] NSWCCA 167 at [37].

Nor, under s 192E(1)(b), is it necessary for the Crown to prove an identified person was deceived or to lead direct evidence from a person or persons to establish its case of deception: Decision Restricted [2019] NSWCCA 43 at [28]-[29], [64], [74]-[75]. How the deception in a particular case is proved depends on the form of deception practiced but, in a case where there is no direct evidence that the alleged deception was the operative cause of the dishonest obtaining of property, it may be a matter of inference proved by other evidence in the Crown case: Decision Restricted at [62], [74]-[75].

The term “financial advantage” should be given its ordinary meaning: R v Walsh (1990) 52 A Crim R 80 at 81.

Section 192D(1) provides a non-exhaustive definition of obtaining a financial advantage or causing a financial disadvantage.

Note:: The Suggested directions below do not cover or describe every permutation of the offences given the definitions of “deception” in s 192B, “obtains property” in s 192C(1), “property belongs” in ss 192C(3), 192C(4), “obtain” financial advantage in s 192D(1) and “cause” financial advantage in s 192D(2). The facts may also require a direction in terms of s 192C(5) in respect of treating property as the accused’s own regardless of the victim’s rights. Therefore the directions below should be modified to accommodate other forms of the offences.

[5-5925] Section 192E(1)(a) — Suggested direction — fraud by dishonestly obtaining property

[The accused] is charged that [he/she], by a deception, dishonestly obtained property being [the nature of the property] that belonged to [name of victim].

The Crown alleges that the property belonged to [the victim] because [he/she] had possession of the property.

The Crown alleges that the accused obtained the property within the terms of the offence charged in that [he/she] obtained possession of the property for [himself/herself]. Conduct of that type amounts to obtaining.

In order to prove that the accused committed the offence, the Crown must prove beyond reasonable doubt that the accused obtained the property in the manner alleged and did so intending to permanently deprive [name of victim] of the property, that is [he/she] did not intend that the property would be returned to [the name of the victim].

[If necessary add

Merely to borrow the property or to lend the property to another is not sufficient to make out the charge unless the borrowing or lending was for such a period and in such circumstances as to be the equivalent of taking or disposing of the property outright.]

The deception that the Crown alleges and that must be proved beyond reasonable doubt is that the accused [the nature of the deception alleged] and you must be satisfied that as a result of that deceptive conduct the accused obtained the property the subject of the charge. The Crown must prove that the accused intended to carry out that deceptive conduct to obtain the property or was reckless in that regard. The accused is reckless where [he/she] foresaw the possibility of [the victim] being deceived by [his/her] conduct and parting with the property but [he/she] nevertheless continued with [his/her] course of conduct.

The Crown must prove beyond reasonable doubt that in deceiving [the victim] in the manner alleged and so obtaining the property, the accused acted dishonestly. Dishonest in this context means that the accused acted dishonestly according to the standards of ordinary people. You as ordinary members of the community determine what is dishonest conduct. You must not only find beyond reasonable doubt that the accused acted dishonestly in deceiving [the victim] but also that [he/she] knew that [his/her] conduct was dishonest according to the standards of ordinary people.

[If necessary add

A person may obtain property dishonestly even if [he/she] is willing to pay for the property.]

[If a claim of right is raised as a response to an allegation of dishonesty: see Larceny at [5-6165].]

[5-5930] Section 192E(1)(b) — Suggested direction — fraud by dishonestly obtaining financial advantage

[The accused] is charged that [he/she] by a deception dishonestly [obtained a financial advantage for himself/herself] or [kept a financial advantage that he/she had].

The Crown contends that the financial advantage is [set out the financial advantage]. It does not matter whether the financial advantage alleged was permanent or temporary.

The deception that the Crown alleges that the accused perpetrated was [set out the deception]. It must prove beyond reasonable doubt that the financial advantage was obtained as a result of that deception and that the accused perpetrated that deception intentionally to obtain the financial advantage or acted recklessly in that regard. Here reckless means foreseeing the possibility that as a result of the deception [he/she] would [obtain a financial advantage] or [retain the financial advantage that he/she had] and carrying on with the deception notwithstanding that possibility.

However, the Crown does not need to prove a particular person was deceived.

The Crown must prove beyond reasonable doubt that the accused acted dishonestly in [his/her] deceptive conduct. Dishonest in this context means that the accused acted dishonestly according to the standards of ordinary people. You as ordinary members of the community determine what is dishonest conduct in this regard. You must not only find beyond reasonable doubt that the accused acted dishonestly in deceiving [the victim] but also that [he/she] knew that [his/her] conduct was dishonest according to the standards of ordinary people.

[If a claim of right is raised as a response to an allegation of dishonesty: see Larceny at [5-6165].]

[5-5935] Section 192E(1)(b) — Suggested direction — fraud by dishonestly causing financial disadvantage

[The accused] is charged that [he/she] by a deception dishonestly [caused a financial disadvantage to another person namely …]. The Crown contends that the financial disadvantage the subject of the charge is [set out the financial disadvantage]. It does not matter for the purpose of the charge whether the financial disadvantage alleged was permanent or temporary.

The deception that the Crown alleges that the accused perpetrated was [set out the deception]. It must prove beyond reasonable doubt that the financial disadvantage was suffered as a result of that deception and that the accused perpetrated that deception intentionally to cause the financial disadvantage or acted recklessly in that regard. Here reckless means foreseeing the possibility that as a result of the deception [he/she] would [cause a financial disadvantage to …] but went on to act as [he/she] did notwithstanding that possibility. However, it is not necessary for the Crown to prove a particular person was deceived.

The Crown must prove beyond reasonable doubt that the accused acted dishonestly in [his/her] deceptive conduct. Dishonest in this context means that the accused acted dishonestly according to the standards of ordinary people. You as ordinary members of the community determine what is dishonest conduct in this regard. You must not only find beyond reasonable doubt that the accused acted dishonestly in deceiving [the victim] but also that [he/she] knew that [his/her] conduct was dishonest according to the standards of ordinary people.

[If a claim of right is raised as a response to an allegation of dishonesty: see Larceny at [5-6165].]

[5-5940] Section 192F — intention to defraud by destroying or concealing records

The section makes it an offence to dishonestly destroy or conceal accounting records with the intention of obtaining property or a financial advantage.

As to obtaining: see [5-5910] and s 192C.

As to obtaining a financial advantage: see [5-5910] and s 192D.

Dishonesty — is defined in s 4B: see [5-5910].

Note that “destroy” includes “obliterate”: s 192F(2).

Property — is defined in s 4.

Note:: The Suggested directions below do not cover or describe every permutation of the offences. (See earlier Note regarding the various definitions at [5-5920]). The directions ought be modified to accommodate other forms of the offences.

[5-5945] Section 192F(1)(a) — Suggested direction — destroy or conceal records with intent to obtain property

[The accused] has been charged that [he/she] dishonestly [destroyed/concealed] accounting records being [set out the records alleged] with the intention of obtaining property belonging to another, here [name of the victim]. Property belongs to another person, if that person has possession of the property.

The Crown must prove beyond reasonable doubt that the accused did [destroy/conceal] those records and [he/she] did so with that intention. It must also prove that in [destroying/concealing] those records [he/she] acted dishonestly. Dishonest in this context means that the accused acted dishonestly according to the standards of ordinary people. You as ordinary members of the community determine what is dishonest conduct in this regard. You must not only find beyond reasonable doubt that the accused acted dishonestly in [destroying/concealing] those records but also that [he/she] knew that this conduct was dishonest according to the standards of ordinary people.

[If a claim of right is raised as a response: see Larceny at [5-6165].]

The intention of obtaining property belonging to another means that the accused intended to obtain possession of the property for [himself/herself].

The Crown must prove that the accused intended to deprive the person who was in possession of the property here [the name of the victim] permanently.

[If necessary add

It is not enough for the Crown to prove that the accused simply intended to borrow the property or to enable some other person to use it before returning it to [the name of the victim]. But the offence will be made out if the Crown proves beyond reasonable doubt that the accused intended to treat the property as if it were [his/her] own and to dispose of it regardless of [the victim’s] rights to the property. Borrowing or lending the property to another may amount to an intention of disregarding [the victim’s] rights if the borrowing or lending is for such a period and in such circumstances that it is the equivalent of taking or disposing of it outright.]

[5-5950] Section 192F(1)(b) — Suggested direction — destroy or conceal records with intent to obtain financial advantage

[The accused] has been charged that [he/she] dishonestly [destroyed/concealed] accounting records being [set out the records alleged] with the intention of [obtaining a financial advantage for himself/herself ] or [keeping a financial advantage that the accused has]. The financial advantage alleged here is [set out the financial advantage]. It does not matter whether the financial advantage is permanent or temporary.

The Crown must prove beyond reasonable doubt that the accused did [destroy/conceal] those records and [he/she] did so with that intention. It must also prove that, in [destroying/concealing] those records, [he/she] acted dishonestly. Dishonest in this context means that the accused acted dishonestly according to the standards of ordinary people. You as ordinary members of the community determine what is dishonest conduct in this regard. You must not only find beyond reasonable doubt that the accused acted dishonestly in [destroying/concealing] those records but also that [he/she] knew that this conduct was dishonest according to the standards of ordinary people.

[If a claim of right is raised as a response: see Larceny at [5-6165].]

[5-5955] Section 192F(1)(b) — Suggested direction — destroy or conceal records with intent to cause financial disadvantage

[The accused] has been charged that [he/she] dishonestly [destroyed/concealed] accounting records being (set out the records alleged) with the intention of [causing a financial disadvantage to another person namely …] or [inducing a third person (namely) to do something that results in another person (namely) suffering financial disadvantage. The financial disadvantage alleged here is [set out the financial disadvantage]. It does not matter whether the financial disadvantage is permanent or temporary.

The Crown must prove beyond reasonable doubt that the accused did [destroy/conceal] those records and [he/she] did so with that intention. It must also prove that in [destroying/concealing] those records [he/she] acted dishonestly. Dishonest in this context means that the accused acted dishonestly according to the standards of ordinary people. You as ordinary members of the community determine what is dishonest conduct in this regard. You must not only find beyond reasonable doubt that the accused acted dishonestly in [destroying/concealing] those records but also that [he/she] knew that this conduct was dishonest according to the standards of ordinary people.

[If a claim of right is raised as a response: see Larceny at [5-6165].]

[5-5960] Section 192G — intention to defraud by false or misleading statement

The section makes it an offence to dishonestly make, publish or concur in making or publishing, a statement that is false or misleading in a material particular with the intention of obtaining property or a financial advantage.

As to obtaining property: see [5-5910] and s 192C.

As to obtaining a financial advantage: see [5-5910] and s 192D.

Dishonesty — is defined in s 4B: see [5-5910].

Property — is defined in s 4.

Material — is not defined but to be material the statement must be of moment or of significance and not merely trivial or inconsequential in relation to the object to be achieved by making it: R v Maslen (1995) 79 A Crim R 199.

False — is not defined. A statement may be false because material facts have been omitted from it whereby it creates a false impression: R v M [1980] 2 NSWLR 195.

Note:: The Suggested directions below do not cover or describe every permutation of the offences and ought be modified to accommodate other forms of the offences.

[5-5965] Section 192G(a) — Suggested direction for obtaining property belonging to another — intention to defraud by false or misleading statement

[The accused] has been charged that [he/she] dishonestly [made/published/concurred in the making/publishing of] a statement being [detail statement alleged] knowing that the statement was false or misleading in a material particular with the intention of obtaining the property of another person being [the name of the victim].

The falsity or misleading nature of the statement that the Crown alleges was [made/published by the accused/the accused concurred in the making/publishing of] is that [detail the allegation of falsity or misleading nature of statement made]. The Crown must prove beyond reasonable doubt that the accused [made/published/concurred in the making/publishing of] the statement alleged in the charge. Further, the Crown must prove beyond reasonable doubt that the accused knew that this statement was false or misleading in the way alleged by the Crown.

Finally, the Crown must prove beyond reasonable doubt that the falsity or misleading nature alleged was of a material particular in that statement. A particular is material if it is of significance or consequence in that statement and not merely trivial or incidental. In determining whether the particular alleged to be false or misleading was material to the statement [made/published] you take into account the purpose for which the statement was [made/published] and whether the particular was capable of influencing the mind of the person to whom the statement was [made/published] in respect of the purpose for which the statement was [made/published].

So unless the Crown has proved beyond reasonable doubt each of these two facts:

(a): the accused [made/published/concurred in the making or publishing of] a statement, and
(b): the statement was false or misleading in a material particular,

the Crown has failed to make out the charge regardless of why the statement was [made/published].

If, however, the Crown has proved each of those two facts beyond reasonable doubt, then you have to consider the intention with which the accused [made/published the statement/concurred in the making/publishing of the statement]. The charge alleges and so the Crown must prove beyond reasonable doubt that [the statement was made/published by the accused/the accused concurred in the making/publishing of] the statement with the intention, that is, for the purpose of, obtaining property belonging to another.

The intention of obtaining property belonging to another means that the accused intended to obtain possession for [himself/herself].

The Crown must prove that the accused intended to deprive the person who [was in possession or control of the property] or [had a proprietary right or interest in the property] here [the name of the person] permanently.

[If necessary add

It is not enough for the Crown to prove that the accused simply intended to borrow the property or to enable some other person to use it before returning it to [the name of the victim]. But the offence will be made out if the Crown proves beyond reasonable doubt that the accused intended to treat the property as if it were [his/her] own and to dispose of it regardless of [the victim’s] rights to the property. Borrowing or lending the property to another may amount to this intention of disregarding [the victim’s] rights if the borrowing or lending is for such a period and in such circumstances that it is the equivalent of taking or disposing of it outright.]

So the Crown alleges and must prove beyond reasonable doubt that what the accused intended to do with the property was in effect to permanently deprive [name of victim].

Finally, if the Crown has proved beyond reasonable doubt all these matters that is:

(a): that the accused [made/published a statement/concurred in the making/publishing of a statement], and
(b): that the accused knew that the statement was false or misleading in a material particular, and
(c): that the accused [made/published a statement/concurred in the making/publishing of a statement] intending to obtain property belonging to another,

the Crown must prove one final matter beyond reasonable doubt.

The Crown must prove that the accused did these things dishonestly. Dishonestly in this context means that the accused acted dishonestly according to the standards of ordinary people. You as ordinary members of the community determine what is dishonest conduct in this regard. You must not only find beyond reasonable doubt that the accused acted dishonestly in his involvement with a false or misleading statement in order to obtain another person’s property but also that [he/she] knew that this conduct was dishonest according to the standards of ordinary people.

[If necessary give a direction on claim of right: see Larceny at [5-6165].]

[5-5970] Section 192G(b) — Suggested direction for obtaining a financial advantage or causing a financial disadvantage — intention to defraud by false or misleading statement

[The accused] has been charged that [he/she] dishonestly [made/published/concurred in the making/publishing of a statement] being [detail statement alleged] knowing that the statement was false or misleading in a material particular with the intention of [obtaining a financial advantage/causing a financial disadvantage]. The [financial advantage/disadvantage] alleged by the Crown here is [set out the particular from the indictment].

The falsity or misleading nature of the statement that the Crown alleges was [made/published by the accused/the accused concurred in the making/publishing of] is that [detail the allegation of falsity or misleading nature of statement made]. The Crown must prove beyond reasonable doubt that the accused [made/published/concurred in the making/publishing of the statement] alleged in the charge. Further, the Crown must prove beyond reasonable doubt that the accused knew that this statement was false or misleading in the way alleged by the Crown.

Finally, the Crown must prove beyond reasonable doubt that the falsity or misleading nature alleged was of a material particular in that statement. A statement is false or misleading in a material particular if the alleged false or misleading matter is of significance or consequence in that statement as a whole. That is, it was not merely trivial or incidental having regard to the contents of the statement. In determining whether the particular matter alleged to be false or misleading was material to the statement [made/published] you can take into account:

(a): the purpose for which the statement was [made/published], and also
(b): whether the particular matter was capable of influencing the mind of the person to whom the statement was [made/published] in respect of the purpose for which the statement was [made/published].

So unless the Crown has proved beyond reasonable doubt each of these two facts:

(a): the accused [made/published/concurred in the making or publishing of] a statement, and
(b): the statement was to the accused’s knowledge false or misleading in a material particular,

the Crown has failed to make out the charge regardless of why the statement was [made/published].

If, however, the Crown has proved each of those two facts beyond reasonable doubt, then you have to consider the intention with which the accused [made/published the statement/concurred in the making/publishing of the statement].

The charge alleges and so the Crown must prove beyond reasonable doubt that [the statement was made/published by the accused/the accused concurred in the making/publishing of the statement] with the intention, that is for the purpose, of [obtaining the financial advantage or causing the financial disadvantage] that the Crown alleges.

[If the Crown alleges an intention to obtain a financial advantage add:

The Crown must prove beyond reasonable doubt that the accused acted as [he/she] did with the intention of [obtaining a financial advantage for himself/herself] or [keeping a financial advantage that the accused has]. The financial advantage alleged here is [set out the financial advantage]. It does not matter whether the financial advantage was to be a permanent or temporary one.]

[If the Crown alleges an intention to cause a financial disadvantage add:

The Crown must prove beyond reasonable doubt that the accused acted as [he/she] did with the intention of [causing a financial disadvantage to another person namely …]. The financial disadvantage alleged here is [set out the financial disadvantage]. It does not matter whether the financial disadvantage was to be a permanent or temporary one.]

Finally, if the Crown has proved beyond reasonable doubt all these matters that is:

(a): that the accused [made/published a statement/concurred in the making/publishing of a statement], and
(b): that the accused knew that the statement was false/misleading in a material particular, and
(c): that the accused [made/published/concurred in the making/publishing of a statement] intending to obtain [a financial advantage/cause a financial disadvantage],

the Crown must prove one final matter beyond reasonable doubt.

The Crown must prove that the accused did these things dishonestly. Dishonestly in this context means that the accused acted dishonestly according to the standards of ordinary people. You as ordinary members of the community determine what is dishonest conduct in this regard. You must not only find beyond reasonable doubt that the accused acted dishonestly in his involvement with a false or misleading statement in order to [obtain a financial advantage/cause a financial disadvantage] but also that [he/she] knew that this conduct was dishonest according to the standards of ordinary people.

[If a claim of right is raised as a response: see Larceny at [5-6165].]

[5-5980] Section 192H — intention to deceive by false or misleading statements of officer of organisation

The offence is concerned with an officer of an organisation making a false or misleading statement with the intention of deceiving members or creditors of the organisation about its affairs.

Section 192H(2) contains definitions for “Creditor”, “Officer”, “Organisation”.

Dishonesty — is defined in s 4B.

Note:: The Suggested directions below do not cover or describe every permutation of the offences under s 192H and ought be modified to accommodate other forms of the offence where necessary.

[5-5985] Section 192H(1) — Suggested direction — intention to deceive by false or misleading statements of officer of organisation

[The accused] has been charged that being an officer of an organisation with the intention of deceiving [members/creditors] of that organisation about its affairs, dishonestly [made/published a statement/concurred in the making/publishing of a statement], being [set out the statement alleged in the indictment] that to [his/her] knowledge was or might have been [false/misleading] in a material particular.

This charge requires the Crown to prove beyond reasonable doubt a number of different facts. If the Crown fails in that obligation on any fact the charge fails and the accused must be found not guilty. Let us take them separately.

Firstly, the Crown must prove beyond reasonable doubt that the accused was an officer of an organisation. An organisation is defined by the provision creating the offence to include any body corporate or unincorporated association. Here the organisation alleged is [set out the organisation].

A person is an officer of such an organisation if [he/she] is a member of that organisation who is concerned in its management or is a person who purports to act as an officer of the organisation. Here the Crown alleges that the accused was [set out the allegation as to officer].

The second fact the Crown must prove beyond reasonable doubt is that the accused as such an officer [made/published a statement or concurred in the making/publishing of a statement]. I have told you what the particular statement alleged in this case is, as set out in the charge in the indictment.

The third fact the Crown must prove beyond reasonable doubt is that, when acting in respect of that statement as the Crown alleges the accused did, [he/she] knew that the statement was or may have been [false/misleading] in a material particular. The Crown alleges that the statement was [false/misleading] in that it contained the following [set out the alleged false or misleading matter].

A statement is [false/misleading] in a material particular if the alleged [false/misleading] matter is of significance or consequence in that statement as a whole. That is it was not merely trivial or incidental having regard to the contents of the statement. In determining whether the particular matter alleged to be [false/misleading] was material to the statement [made/published] you can take into account:

(a): the purpose for which the statement was [made/published], and also
(b): whether the particular matter was capable of influencing the mind of the person to whom the statement was [made/published] in respect of the purpose for which the statement was [made/published].

The fourth fact the Crown must prove beyond reasonable doubt was that the statement was [made/published/the accused concurred in it being made or published] with the intention of deceiving [member/creditors] of the organisation about the state of the organisations affairs. To deceive someone is to cause that person to believe something that is knowingly untrue to the person practising the deceit.

[If the allegation is that the intention was to deceive creditors and is relevant insert:

For this offence, a creditor of an organisation includes a person who has entered into a security for the benefit of the organisation.]

The fifth fact that the Crown must prove beyond reasonable doubt is that in acting the way the Crown alleges that the accused did, [he/she] acted dishonestly. Dishonestly in this context means that the accused acted dishonestly according to the standards of ordinary people. You as ordinary members of the community determine what is dishonest conduct in this regard. You must not only find beyond reasonable doubt that the accused acted dishonestly in his involvement with a false or misleading statement in order to deceive but also that [he/she] knew that this conduct was dishonest according to the standards of ordinary people.

[If a claim of right is raised as a response: see Larceny at [5-6165].]