Area of Law – Fraud / Dishonesty / Theft Offences

An Article about Obtaining property by deception

Dishonestly obtaining by deception
–are you satisfied beyond reasonable doubt that the accused man knew that he was acting dishonestly in doing what he did?

Dishonesty cases in general, are often hard to prove and the more complex they are, the more room there is for the wrong person to be blamed for unlawful activities. There is also a wide range of situations in which it is clear a person has not done anything unlawful, but the prosecuting agency have not really understood what was being done.

We have dealt with many large commercial fraud cases and money laundering cases. These, and other dishonesty cases, require an attention to detail, and then an ability to apply complex law. The starting point is not that being charged means you are guilty. The starting point is – What can the prosecuting agency actually prove?

Some of the law relating to this charge is contained in the following excerpt;

“In R. v. Salvo the accused was charged with obtaining property by deception. He relied on the defence of bona fide claim of legal right. Three members of the Full Court considered the meaning of the word “dishonestly” in this context.. Their Honours held that the word was not used, in the context of s.81(1), in its ordinary sense but in a special and technical sense, and that a claim of legal right negated the existence of “dishonesty” for the purposes of an offence under s.81. Murphy, J. said-

“If the jury gained the impression from the judge’s charge that in deciding what was in the accused’s mind they should simply rely on the fact that he ‘did make the false representations that the cheque would be met’, then in my view, in the circumstances of the case, they would have been acting under a misapprehension. For the deception was admitted. The accused admitted that he performed it for the purpose of obtaining possession of the car and he succeeded in his purpose. The question always remained, was the obtaining by deception done dishonestly, and, up to this point in his charge, the learned trial judge had not given the jury any express assistance as to what they should consider in arriving at an answer to that question. Up to this point, the jury could have been misled inferentially into thinking that they should have regard only to the fact that the accused admitted making the false representation to enable them to decide whether they were satisfied that he acted dishonestly. But his Honour continued: ‘It is not to the point for you to say – each of you to yourself – “Would I have acted in that way? Would I, if I had done that, have regarded myself as acting dishonestly?” That is not the point. The point is that you must determine are you satisfied beyond reasonable doubt that the accused man knew that he was acting dishonestly in doing what he did? And that is the crux of this case; …”.(Emphasis added.)

The reasoning in Salvo was applied in R. v. Brow and in R. v. Bonollo. In Peters v. The Queen the High Court considered the element of dishonesty in the trial of an accused charged with conspiracy to defraud. Gaudron and Toohey, JJ. distinguished the Victorian cases just mentioned, saying that they should be confined in their application to offences against statutory provisions in which the word “dishonest” was held to have been used in a special sense. Professor Williams has argued that the approach of cases such as Peters has significantly undermined the standing of the Victorian decisions based on Salvo and that these authorities are open to further review. But in McLeod v. The Queen the High Court considered a charge under s.173 of the Crimes Act 1900 (N.S.W.) that a director of a body corporate fraudulently took or applied property of the body corporate for his own use or benefit. All members of the Court mentioned the line of authorities commencing with Salvo without any suggestion that the Victorian authorities are wrongly decided.

In the present case the judge was accordingly obliged not only to tell the jury that the Crown had to prove that the money had been obtained dishonestly by the applicant in the sense that she knew she had no legal right to it, but also to give them some assistance by relating the facts to the law and the facts and issues raised by counsel to the actual charges”

R V Todo [2004] VSCA 177

Giving valueless cheque to creditor
“It is an offence under s.82 of the Crimes Act 1958 for a debtor to defer the payment of a debt by giving his creditor a cheque, which the debtor knows to be worthless, in pretended payment of the debt”

R v Vasic [2005] VSCA 38

 

Date: 09/01/2009