Criminal Trial Courts Bench Book — Other offences

The statutory offences of obtaining property by false pretences were designed to meet perceived deficiencies in the law of larceny. These were contained in ss 179–185 (rep) Crimes Act 1900. Sections 179–185 were repealed on 22 February 2010 by the Crimes Amendment (Fraud, Identity and Forgery Offences) Act 2009. Despite the repeal, this chapter of the Bench Book has been retained since offences under those repealed provisions are still coming before the courts.

The essential difference between “larceny” and “obtaining by false pretences” is that the former is an offence against possession, whilst the latter, at least in its original statutory form, included activities designed to unlawfully induce another to part with his or her property.

Gaps in the law have been filled by the creation of other offences. For example, in 1961 the statutory offence of obtaining credit by fraud (s 178C (rep)) was created, and in 1979 offences of obtaining money etc by deception or by false or misleading statements (ss 178BA (rep) and 178BB (rep)) were enacted in the Crimes Act 1900. Sections 178BA, 178BB and 178C were also repealed by the Crimes Amendment (Fraud, Identity and Forgery Offences) Act 2009.

Section 178BA (rep) penalises the obtaining by deception of any money, valuable thing or “any financial advantage of any kind whatsoever”. The section defines “deception” to include both deliberate or reckless words or conduct and (unlike the offence of false pretences) if by words includes representations of law as well as fact. The definition is also extended to include causing a computer system to make a response, and an act or omission with the intention of causing a machine “designed to operate by means of payment or identification” to make an unauthorised response, thereby creating an offence of “deceiving” a machine, such as putting foreign coins into a slot machine or obtaining money through an automatic teller machine (ATM). “Money” is defined in s 4 Crimes Act 1900, but there is no definition of “valuable thing” or “financial advantage”. “Money” may include a cheque: R v Hunt (1996) 88 A Crim R 307.

As to a “valuable thing”, the question of whether the expression is limited to tangible objects or entities, or whether it also includes intangibles, was left open in R v Love (1989) 17 NSWLR 608 at 617. The meaning of the expression, however, was regarded as being limited by the necessity of showing that it was capable of being “obtained”.

A “financial advantage” may be “of any kind whatsoever”. The requirement of “obtaining” in respect of the financial advantage may, however, serve to narrow the ambit of the phrase, but it has been held that the words should be given their plain meaning and should not be narrowly construed: R v Walsh (1990) 52 A Crim R 80, 81.

The elements of the offence are that the accused:

See: R v Licardy (unrep, 28/09/94, NSWCCA). The deception must have induced in the owner of the money or valuable thing an intention to part with his or her property rather than merely the custody or control of the money etc in question.

In the case of money, the general rule is that property in it will pass on delivery. In the case of a charge of obtaining a valuable thing by deception, the question of when and by what means it may be said to have been “obtained” may be affected by the nature of the thing in question: R v Kron (1995) 78 A Crim R 747 at 477.

In the case of a charge relating to a financial advantage, it is more difficult to apply the notion of the creation of an intent to part with something as in the case of money or a tangible thing. The extension of a credit facility by deception may involve an “obtaining” within the meaning of s 178BB (as well as s 178C (rep)) Crimes Act 1900.

In the context of the English Theft Act 1968, it has been held that an intention to repay an equivalent sum of money will not prevent conviction. It is to be noted, however, that s 178BA does not have an equivalent to s 118 Crimes Act 1900 in relation to the offence of larceny, and it may be that the existence of an intention to repay an equivalent sum in the case of money, or to return the valuable thing, will go to the question whether the Crown has established beyond reasonable doubt that the money or valuable thing was obtained “dishonestly”.

Because of the requirement of a causal connection between the alleged deception and the intent to part with the subject matter of the charge, there will need to be evidence (direct or circumstantial) of a mind deceived, except in the case of a computer or a machine referred to in s 178BA(2) Crimes Act 1900. Although the money and so forth must be obtained “dishonestly”, if the Crown proves a deception then this is evidence upon which the jury may find dishonesty on the part of the accused. As to a claim of right, see [5-6165].

As to s 178BB (rep) Crimes Act 1900, the section may be compared with s 176 (rep) which is, however, limited in its scope to corporate officers. Like s 178BA (rep), s 178BB extends to the obtaining of any “money or valuable thing or any financial advantage of any kind whatsoever” — as to which, see the notes in relation to s 178BA.

No element of dishonesty is, however, required to be proved by the Crown under s 178BB, although the jury should not be so directed: R v Stolpe (unrep, 30/10/96 NSWCCA).

Intent as to the obtaining must be proved, as must knowledge of the false or misleading nature of the statement relied on by the Crown, or “reckless disregard” as to whether the material particular in the statement is false or misleading.

The phrase “reckless disregard” in s 178BB may be compared with the phrase “whether deliberate or reckless” in the definition of “deception” in s 178BA(2). Although there is considerable discussion in the authorities as to the meaning of “reckless” and “reckless disregard” in various statutory contexts, it appears that a jury should be directed in terms that both expression import a subjective state of mind in the accused in relation to the deception (s 178BA(2)) or making of a false statement (s 178BB) in that, whilst foreseeing the possibility that it may be false, he or she made the statement not caring whether it was true or false, and without any honest belief as to its truth. See the discussion of authorities in Pollard v Commonwealth DPP (1992) 28 NSWLR 659.

It should be noted, however, that the Crown may only rely on “reckless disregard” on a charge of making a false or misleading statement and that, in relation to the publication or the concurrence in making or publishing a statement, the Crown is restricted to actual knowledge of the false or misleading character of the statement: R v Rinaldi & Kessey (1993) 30 NSWLR 605.

To “publish” means to convey the offending statement to the mind of another: Webb v Bloch (1928) 41 CLR 331, 363; R v Rinaldi & Kessey (1993) 30 NSWLR 605, 609. To “concur” in a publication involves no more than doing an act which, together with the acts of others (who may be behaving quite lawfully), brings about publication. The word is not coextensive with the concept of aiding, abetting, counselling or procuring in s 351 Crimes Act 1900: R v Lee (unrep, 19/06/97, NSWCCA).

A statement may be rendered false or misleading by material omission even though otherwise factually accurate: R v Bishirgian (1936) 1 ALR 586; R v M (1980) 2 NSWLR 195. A statement is false or misleading in a material particular if, of moment or significance, it is capable of influencing the mind of the person to whom it is directed, and is not merely trivial or inconsequential: R v Clogher [1999] NSWCCA 397, and the authorities cited.