Fraud

FRAUD

The offence of “fraud” is found at s.409 of The Criminal Code (WA) (The Code).  It is a broad offence which replaced a variety of related offences which existed previously. 

‘Fraud” is a crime.  It is committed, in a broad sense, when a person with an intention to defraud uses deceit or any fraudulent means in order to:

  • Obtain property from another person;
  • Cause another person to deliver property to another person;
  • Gain a benefit (pecuniary or other benefit) from a person;
  • Cause a detriment (pecuniary or other detriment) to a person;
  • Cause another person to do any act which that other person is lawfully entitled to abstain from doing; or
  • Cause another person to abstain from doing any act that person is lawfully entitled to do.

In order to prove this offence, the prosecution must be able to prove that:

  • One of the above effects occurred;
  • The person had an “intention to defraud”; and
  • The person used “deceit” or any “other fraudulent means” to bring about one of the above effects.

To “obtain” property from another person only requires obtaining possession of the property: it does not require that any legal title in the property be obtained.

Intention to Defraud

An “intention to defraud” must exist for this crime to have been committed.  Whether or not such an intention exists will depend upon the circumstances of each case and there is no simple definition; however, it appears there needs to be an economic connotation.  Two examples can give some guidance.  There was held to be an “intention to defraud” in a case where an employee of a municipal council deceitfully informed the Chief Executive Officer that the council were unhappy with their performance and convinced the CEO to resign.  The person then unsuccessfully applied for the vacated CEO position.  Even though the person was not successful in securing the CEO position, they obtained the opportunity to apply for it which was held to be a “fraud”.  By contrast, a person who falsely represented to other people that they were a surgeon in order to be able to administer a series of injections to a person was not held to have an “intention to defraud” as there was no evidence the act was done for any financial gain.  

The term “deceit”, in the context of this crime, means, “to induce a man to believe that a thing is true which is false, and which the person practising the deceit knows or believes to be false”.  There are two elements that need to be satisfied for “deceit” to be proven:

  • The facts that are alleged to be deceitful must be factually untrue; and
  • The person asserting those facts must know or believe them to be untrue.

The term “other fraudulent means” does not have a specific definition.  It has been legally defined as a broad term that includes any behaviour which is considered to be dishonest.

An example of how this crime has been committed was where a person was employed by a company.  The person was in charge of approving the use and payment of courier services for the company.  The person owned and operated a courier business which the person used to conduct the courier services used by the company.  This was done without the knowledge of the company and involved the person actively concealing his involvement in the courier business.  Even though the person charged market rates, because he actively concealed the fact it was his courier business, he committed the crime of ‘fraud’ against the company.

Obtaining Property – An Intention to Repay or Return

If a person is charged with the crime of “fraud” in relation to “obtaining property from another”, it is not a defence for the person to assert that they had an intention to repay the money or return the property at a later time.  However, it appears that if a person was able to satisfy a court that they genuinely believed, at the time of obtaining the property, that they had both the means and the intention to repay the money or return the property, the prosecution would not be able to prove that the person acted fraudulently.

It is the intention of the person at the time of the actual obtaining of the property which is paramount.

Which Court Hears Fraud Charges?

A charge of “fraud” can be heard summarily in the Magistrates Court if the value of the property obtained or delivered, the benefit gained or detriment caused is not more than $10,000.00.  If the value is more than $10,000.00 the matter must be heard in the District Court.  The maximum penalties for “fraud” are below:

Age of VictimMaximum Penalty if Heard SummarilyMaximum Penalty
60 years or olderFine – $36.000.00 and/ or Imprisonment for 3 yearsImprisonment for 10 years
Under 60 yearsFine – $24,000.00 and/ or Imprisonment for 2 yearsImprisonment for 7 years

Fraudulent Falsification of Records

Pursuant to s.424 of The Code, it is a crime to fraudulently falsify records.  For a person to commit this crime they must have an “intention to defraud” and:

  • Make a false entry or omit to make an entry in any record;
  • Give any certificate of information which is materially false;
  • By act or omission falsify, destroy, alter or damage any record; or
  • Knowingly produce or make use of any document they know to be materially false.

The “intention to defraud” for this crime must be an intention to inflict an economic loss upon another.  It is not necessary that there be an actual economic loss, it is sufficient if the person falsifies the record with the “intention to defraud”.

This crime can be heard in the District Court or summarily in the Magistrates Court.  The maximum penalty for this crime is:

  • 7 years imprisonment; or
  • If heard summarily in the Magistrates Court – a fine of $24,000.00 and/ or imprisonment for 2 years.

Forgery and Uttering

It is a crime, pursuant to s.473 of The Code if a person, with the intent to defraud:

  • Forges a record; or
  • Utters a forged record.

This crime is very similar to “fraudulent falsification of records”.  The main difference would seem to be that “fraudulent falsification of records” is designed to cover situations related to false accounting in a commercial sense whereas the crime of “forgery and uttering” encompasses a broader range of documents.

Any document is capable of being forged and to do so is a crime if the forgery is accompanied with the requisite “intent to defraud”.

The term “utter” means to offer the document, either by words or by action, as genuine knowing it to be a forgery.  As such, a person who makes a forged document and then “utters” it commits two separate offences; one for forging the document and one for “uttering” it.

This crime can be heard in the District Court or summarily in the Magistrates Court.  The maximum penalty for this crime is:

  • 7 years imprisonment; or
  • If heard summarily in the Magistrates Court – a fine of $24,000.00 and/ or imprisonment for 2 years.
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