Defraud — Intent to

[5-350] Introduction

The following suggested direction may be adapted to all offences involving intent to defraud, such as those set out in Pt 4, Div 1, subdiv 7 of the Crimes Act 1900. Prior to summing up in a case involving intent to defraud, careful consideration should be given to Spies v The Queen (2000) 201 CLR 603, where the High Court emphasised that in all offences alleging “defrauding”, the prosecution must establish that the accused used “dishonest means” to achieve his or her object. “Dishonest means” was explained in Peters v The Queen (1998) 192 CLR 493 at 508 and 529.

[5-360] Suggested direction

Here it is alleged by the Crown, and must be proved by the Crown beyond reasonable doubt, that [the accused] intended to defraud [the victim] by … [specify the nature of the fraudulent conduct].

To “defraud” is to intentionally use dishonest means to deprive another person of their property, or to imperil their rights or interests. It involves the intentional creation of a situation by one person to use dishonest means to deprive another person of money or property, or to imperil another person’s rights or interests, [here identify the knowledge, belief or intent that is said to render the relevant conduct dishonest] knowing that they have no right to deprive that person of money or property, or imperil that person’s rights or interests. The “dishonest” means which the Crown says [the accused] used here were … [give details of the evidence].

The Crown must establish beyond reasonable doubt that the accused had that knowledge, belief or intent and, if so, on that account, the relevant conduct was dishonest. In determining whether the conduct of the accused was dishonest, the standard which you apply is that of ordinary decent people.

[Where appropriate

There may be an intent to defraud even though the defrauder does not intend to benefit [himself/herself]. The essence of the meaning of the word “defraud” is “detriment” or “damage” or “loss” to the person defrauded by the use of dishonest means, not an advantage to the defrauder.]

For present purposes, the words “intent” and “intention” have the same meaning. They are very familiar words and in this legal context they carry their ordinary meaning. Intention may be inferred or deduced from the circumstances in which … [specify the alleged fraudulent activity] is alleged to have occurred, and from the conduct of [the accused] person before, at the time of, or after [he/she] did the act alleged to be fraudulent, namely … [specify the alleged fraud]. Whatever a person says about their intention may be looked at for the purpose of finding out what in fact that intention was at the relevant time … [specify the time]. In some cases, a person’s acts or words may themselves provide the most convincing evidence of their intention.

Where a specific result is the obvious and inevitable consequence of a person’s act, and where they deliberately do that act, you may readily conclude that they did that act with the intention of achieving that specific result. In the present case that is … [set out the alleged fraud].

You must remember that you are considering the intention of [the accused], not what your intention, or the intention of the ordinary person, or some imaginary person, might have been had you (or they) been in [the accused’s] position.

I emphasise that what the Crown has to prove is the dishonest intent of [the accused] — not of any other person. Further, the intended means by which the purpose was to be achieved must be dishonest.

[5-370] Notes

1. 

In Macleod v The Queen (2003) 77 ALJR 1047, the High Court dealt with the appropriate directions in a case involving a Director fraudulently appropriating property, contrary to s 173 of the Crimes Act 1900. The Court also dealt with the principles applicable to a claim of right raised by the Director.

2. 

See R v Moussad (1999) 152 FLR 373 for a direction in relation to defrauding the Commonwealth pursuant to s 29D of the Crimes Act 1914 (Cth).

3. 

An essential ingredient in every case is dishonesty: Scott v Metropolitan Police Commissioner [1975] AC 819 at 841; R v Ward & Stonestreet (1996) 88 A Crim R 159 cited with apparent approval in Peters v The Queen (1998) 192 CLR 493 at 542. The dishonesty must be deliberate: R v Sinclair [1968] 3 All ER 241.

4. 

Dishonesty need not be defined. It will suffice if the trial judge instructs the jury that in deciding whether the act was or was not dishonest, they should apply the current standards of ordinary decent people: R v Glenister (1980) 2 NSWLR 597 cited with apparent approval in Peters v The Queen (1998) 192 CLR 493 at 542. See also R v Love (1989) 17 NSWLR 608.

5. 

Where property is taken, and there is an issue as to whether the accused believed he or she had a legal right to take the property, the Crown must prove the absence of such a belief in the accused: R v Condon (1995) 83 A Crim R 335 at 346.

6. 

For the essential elements to be proved by the Crown where the charge is fraudulent misappropriation or fraudulently omitting to account (Crimes Act 1900, s 178A), see R v Maharaj (1995) 85 A Crim R 374.

7. 

A general averment in an indictment of intention to defraud is sufficient: Criminal Procedure Act 1986, Sch 3, cl 13.