What is Fraud?
Fraud involves a person dishonestly doing any of the following things:
- Obtaining property from someone else
- Convincing someone to deliver property to someone else
- Obtaining a benefit from somebody else
- Causing detriment to somebody else
- Using property belonging to somebody else (in whole or in part)
- Convincing a person to do something that they are lawfully entitled not to do, or
- Convincing a person not to something that they lawfully may do
The Offence of Fraud
The offence of Fraud is found in section 408C of the Criminal Code 1899 (Qld). An offender can be liable to up to 5 years imprisonment if they are found guilty of a fraud offence in Queensland. This can increase to 12 years imprisonment if:
- A corporation is defrauded by a director or member of its governing body
- An employer is defrauded by their employee
- A person commits fraud using property they obtained subject to a trust, direction or condition that it be applied to a particular purpose or be paid to a specified person, or
- The benefit or detriment resulting from the fraud amounts to $30,000 or more.
If the value of the fraud is of a value of at least $100,000 or the offender carries on the business of committing the offence of fraud, the maximum penalty increases to 20 years imprisonment.
The elements required to be proved for this offence are:
- The offender had a particular knowledge, belief, or intent
- With that knowledge, belief or intent, the defendant did the act relied on as constituting the offence
- The defendant did the act dishonestly
- That by doing the act, the defendant:
a. Applied to his or her own use (or to the use of any person):
- i. Property belonging to another; or
- ii. Property belonging to the defendant, or which is in the defendant’s
b. possession, either solely or jointly with another person, subject to a trust, direction or condition or on account of any other person; or
c. The defendant obtained property from another person; or
d. The defendant induced any person to deliver the property to any person; or
e. The defendant gained a benefit or advantage, pecuniary or otherwise, for any person; or
f. The defendant induced any person to do an act which the person was lawfully entitled to abstain from doing; or
e. The defendant induced any person to do any act which the person was lawfully entitled to abstain from doing; or
g. The defendant induced any person to abstain from doing an act which the person was lawfully entitled to do; or
h. The defendant made off:
i. Knowing that payment on the spot was required or expected for property lawfully supplied or returned or any service lawfully provided
- ii. Without having paid; and
- iii. With intent to avoid payment
What is classed as ‘Dishonesty’?
The element of dishonesty is to be determined objectively – by the standards of ordinary, honest people. Not by the defendant’s standards.
In order to prove the defendant was acting dishonestly, the prosecution must prove beyond reasonable doubt that by acting with the knowledge, belief or intent identified, what the defendant did was dishonest by the standards of ordinary honest people. They do not need to prove that the defendant must have realised that what he or she was doing was dishonest by those standards.
In Queensland, a person’s acts in relation to property may still be considered dishonest even if:
- The defendant is willing to pay for the property; or
- The defendant intends to afterwards restore the property or to make restitution for the property or to afterwards fulfil their obligations to make good any determinant; or
- An owner or other person consents to doing any act or to making any omission; or
- A mistake is made by another person
When will conduct not be considered ‘Dishonest’?
Conduct of an individual will not be considered dishonest if the individual did not know who the property belonged to, and believed on reasonable grounds, that the owner could not be discovered by taking reasonable steps to find them. This means if a person finds lost property but does not take the reasonable steps to discover the owner of that property, may be considered, in some circumstances, to have acted dishonestly. Thus, if they use, give away or sell that property it may be considered as committing fraud.
Where are Fraud Charges heard?
In most cases the offence of Fraud will be finalised in the Magistrates Court, unless the value exceeds $30,000 and the defendant is pleading not guilty. In that case the matter will progress through committal proceedings and be committed to the District Court for trial.
Defences to Raise againt Fraud Charges
The most common defence that is raised for a fraud charge, is a bona fide claim of right which is outlined under section 22 of the Criminal Code 1899 (Qld), as well as mistake of fact under section 24 of the Criminal Code 1899 (Qld). These defences can potentially be raised in situations where the defendant has an honest and reasonable belief that they had some form or legal right to the property. There are other defences that can be raised depending on the circumstances of the case and the defendant.
This post contains general advice only and is not intended as legal advice.
