Fraud — Part 4AA Crimes Act 1900
[5-5900] Introduction
Part 4AA was inserted into the Crimes Act 1900 with effect from 22 February 2010 by the Crimes Amendment (Fraud, Identity and Forgery Offences) Act 2009.
[5-5910] Definitions
Dishonesty — Dishonesty means “dishonest according to the standards of ordinary people and known by the defendant to be dishonest according to the standards of ordinary people”: s 4B. It is a question of fact: s 4B(2). For claim of right, see Larceny at [5-6110] and the Suggested direction at [5-6105].
Deception — Deception means any deception, by words or other conduct, as to fact or as to law: s 192B. It must be either reckless or intentional: s 192B(2). See further below.
Recklessness — The element of recklessness may also be established by proof of intention or knowledge”: s 4A.
Obtaining property belonging to another — defined in s 192C.
Property — defined in s 4.
Financial advantage or disadvantage — undefined in the Crimes Act, but it is a simple concept, expressed by the use of common words each of clear meaning, not requiring a narrow construction: R v Walsh (1990) 52 A Crim R 80 at 81; Elias v The Director of Public Prosecutions (NSW) [2012] NSWCA 302 at [41]; Re Robert Burton [2021] NSWCCA 87 at [81]. A financial advantage or disadvantage may be permanent or temporary: s 192D.
“Obtaining” a financial advantage or “causing” a financial disadvantage — defined in s 192D. A person obtains a financial advantage by proffering a valueless cheque in payment of an outstanding debt: R v Vasic [2005] VSCA 38. The advantage may be the retention of funds for a longer period, deferral of any steps which might be taken by the creditor to enforce the debt or an opportunity to seek finance. A similar analysis may be applied where the advantage is the retention of an asset the value of which would be diminished absent the deception: Duncan v Independent Commission Against Corruption [2016] NSWCA 143 at [657].
[5-5920] Section 192E — fraud
Section 192E(1) makes it an offence for a person who, by any deception, dishonestly obtains property belonging to another or obtains a financial advantage or causes any financial disadvantage. “Deception” and “dishonestly” are separate elements which the prosecution must prove.
The obtaining of property may be dishonest even if the person is willing to pay for the property: s 192E(2).
The offence can involve all or any part of a general deficiency in money or other property even though the deficiency is made up of any number of particular sums of money or items of other property that were obtained over a period of time: s 192E(3).
The offence can be an alternative to a charge of larceny or an offence that includes larceny: s 192E(4).
The offence must be committed both “by deception” and “dishonestly”.
An accused can commit the offence “by deception” either intentionally or recklessly, recklessly meaning with foresight of a (real) possibility about a state of affairs or a consequence: Bazouni v R [2021] NSWCCA 256 at [81].
The lesser state of mind of recklessness is sufficient to prove the element of “by deception”. But the greater state of mind of knowledge is necessary to prove the element of “dishonestly”. Except in most unusual circumstances, it will be necessary to direct the jury about those two mental elements separately: Bazouni v R at [82]–[83].
The definition of “deception”, in s 192B, does not require the deception to induce a false belief in the recipient of information. Rather, the relevant effect is prescribed by the element of obtaining any financial advantage or causing financial disadvantage: Dimitriou v R [2025] NSWCCA 18 at [95]; Duncan v Independent Commission Against Corruption [2016] NSWCA 143 at [647].
Further, the phrase “by deception”, in s 192E(1), requires a causal connection between the deception and the relevant effect: Dimitriou v R at [95], [97]–[98]; Duncan v Independent Commission Against Corruption at [352]; Flack v R [2011] NSWCCA 167 at [37]; R v Ho (1989) 39 A Crim R 145 at 147. That does not require the deception be the sole cause of the outcome, but is satisfied where the deception substantially or significantly contributed to the outcome: Dimitriou v R at [96]; Re Robert Burton (a pseudonym) [2021] NSWCCA 87 at [63]–[64]; Flack v R at [37]. Flack v R and R v Ho, which relate to predecessor s 178BA, are “equally applicable” to current s 192E: Re Robert Burton at [63]. Causation can still be established if there is another “step along the way” to the outcome which severs the causal chain between the deception and the outcome: Re Robert Burton at [77]. It is a question of fact for the jury, unless there is no evidence sufficient to support that causal connection: Re Robert Burton at [64]–[65].
The prosecution must prove that the deception caused the financial advantage to be obtained (or financial disadvantage suffered) or was the effective cause of the financial advantage being obtained (or the financial disadvantage being suffered): Re Robert Burton at [63].
It is not necessary to show that the person deceived suffered the loss or obtained the advantage: R v Ho at 147; Flack v R at [36]–[37]; Duncan v Independent Commission Against Corruption at [350].
Nor, under s 192E(1)(b), is it necessary for the Crown to prove an identified person was deceived or to lead direct evidence from a person or persons to establish its case of deception: R v SKL [2019] NSWCCA 43 at [28]–[29], [64], [74]–[75]. How the deception in a particular case is proved depends on the form of deception practiced. However, in a case where there is no direct evidence that the alleged deception was the operative cause of the dishonest obtaining of property, it may be a matter of inference proved by other evidence in the Crown case: R v SKL at [62], [74]–[75]; Hughes v R [2021] NSWCCA 238 at [47], [49], [50].
The mental element necessary for proof of dishonesty has two components. The first is proof beyond reasonable doubt that ordinary persons applying their own standards would regard the alleged acts of the accused as dishonest. The second is proof beyond reasonable doubt that the accused knew ordinary persons would make that assessment. The mental element of dishonesty can be thought of as a subjective state of mind of knowledge, on the part of the accused, about an objective norm that sits outside their own assessment and is reposed in ordinary members of the community: Bazouni v R at [75]–[78].
In Dimitriou v R, the Court set out the elements of the offence (at [75], [88], [94]–[103]) and rejected the applicant’s submission that there was a further fault element attaching to the consequence element (i.e. that “the causing of a financial disadvantage was intentional or reckless”).
The term “financial advantage” should be given its ordinary meaning: R v Walsh (1990) 52 A Crim R 80 at 81; see also Definitions at [5-5910].
- Note:
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The suggested directions below do not cover or describe every permutation of the offences given the definitions of “deception” in s 192B, “obtains property” in s 192C(1), “property belongs” in ss 192C(3)–(4), “obtain” financial advantage in s 192D(1) and “cause” financial advantage in s 192D(2). The facts may also require a direction in terms of s 192C(5) regarding the treatment of property as the accused’s own regardless of the complainant’s rights. Therefore the directions below should be modified to accommodate other forms of the offences where necessary.
The headings in the below direction are not intended to be read out to the jury by the trial judge.
[5-5925] Section 192E(1)(a) — Suggested direction — fraud by dishonestly obtaining property
The accused is charged with dishonestly obtaining property being [the nature of the property] that belonged to [the complainant] by deception.
The Crown alleges that the property belonged to [the complainant] because they had possession of the property.
The Crown alleges that the accused obtained the property by obtaining possession of the property for themself.
To prove the accused guilty, the Crown must prove beyond reasonable doubt each of the following elements:
- 1.
-
The accused obtained the property with the intent to permanently deprive the complainant of it,
- 2.
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The accused intended to carry out the deceptive conduct, or was reckless in that regard,
- 3.
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The property was obtained as a result of the accused’s deceptive conduct,
- 4.
-
In deceiving [the complainant] the accused acted dishonestly.
1. Obtained property with intention to permanently deprive
The Crown must prove that the accused obtained the property in the manner alleged and did so intending to permanently deprive [the complainant] of the property; that is, they did not intend that the property would be returned to [the complainant].
[If necessary, add:
Merely borrowing the property or lending the property to another is not sufficient to make out the charge unless the borrowing or lending was for such a period and in such circumstances as to be the equivalent of taking or disposing of the property outright.]
2. The accused intended to carry out the deceptive conduct to obtain the property, or was reckless in that regard
The deception that the Crown alleges — and that must be proved — is that the accused [the nature of the deception alleged]. The Crown must prove that the accused intended to carry out that deceptive conduct to obtain the property or was reckless in that regard. The accused is reckless where they foresaw the possibility of [the complainant] being deceived by their conduct and parting with the property but they nevertheless continued with their course of conduct.
3. The property was obtained as a result of the accused’s deceptive conduct
You must also be satisfied that as a result of that deceptive conduct the accused obtained the property the subject of the charge.
4. In deceiving [the complainant] the accused acted dishonestly
The Crown must prove that the accused acted dishonestly in their deceptive conduct. Dishonest in this context means dishonest according to the standards of ordinary people. You, as ordinary members of the community, determine what is dishonest. You must be satisfied both:
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that the accused, in deceiving [the complainant], acted dishonestly according to the standards of ordinary people; and
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that the accused knew their conduct was dishonest according to the standards of ordinary people.
[If necessary, add:
A person may obtain property dishonestly even if they were willing to pay for the property.]
[If a claim of right is raised as a response to an allegation of dishonesty: see Larceny at [5-6110] and [5-6105].]
[5-5930] Section 192E(1)(b) — Suggested direction — fraud by dishonestly obtaining financial advantage
The accused is charged with dishonestly [obtaining a financial advantage for themselves/keeping a financial advantage they had] by deception.
To prove the accused guilty, the Crown must prove beyond reasonable doubt each of the following elements:
- 1.
-
The accused obtained a financial advantage,
- 2.
-
The accused intended to carry out the deceptive conduct, or was reckless in that regard,
- 3.
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The financial gain was obtained as a result of the accused’s deceptive conduct,
- 4.
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In deceiving [the complainant], the accused acted dishonestly.
1. The accused obtained a financial advantage
The Crown must prove the accused obtained a financial advantage. The Crown alleges the financial advantage was [set out financial advantage]. [If relevant: It does not matter whether the financial advantage was permanent or temporary.]
2. The accused intended to carry out the deceptive conduct, or was reckless in that regard
The Crown alleges that the deception perpetrated by the accused was [set out the deception]. It must also prove that the accused perpetrated that deception intentionally to obtain the financial advantage or acted recklessly in that regard. Here, reckless means foreseeing the possibility that, as a result of the deception, the accused would [obtain a financial advantage/retain the financial advantage that they had] but went on to act as they did despite that possibility.
[If relevant: However, the Crown does not need to prove a particular person was deceived.]
3. The financial gain was obtained as a result of the accused’s deceptive conduct
The Crown must also prove that the financial advantage was obtained as a result of that deception. It is not necessary for the Crown to establish that the deception was the sole cause of the financial advantage, although it must establish that the deception substantially or significantly contributed to it.
4. In deceiving [the complainant], the accused acted dishonestly
The Crown must prove that the accused acted dishonestly in their deceptive conduct. Dishonest in this context means dishonest according to the standards of ordinary people. You, as ordinary members of the community, determine what is dishonest. You must be satisfied both:
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that the accused, in deceiving [the complainant], acted dishonestly according to the standards of ordinary people; and
-
that the accused knew their conduct was dishonest according to the standards of ordinary people.
[If a claim of right is raised as a response to an allegation of dishonesty: see Larceny at [5-6110] and [5-6105].]
[5-5935] Section 192E(1)(b) — Suggested direction — fraud by dishonestly causing financial disadvantage
The accused is charged with dishonestly causing a financial disadvantage to another person namely [the complainant] by deception.
To prove the accused guilty, the Crown must prove beyond reasonable doubt each of the following elements:
- 1.
-
The accused caused a financial disadvantage,
- 2.
-
The accused intended to carry out the deceptive conduct, or was reckless in that regard,
- 3.
-
The financial disadvantage was caused by the accused’s deceptive conduct,
- 4.
-
In deceiving [the complainant], the accused acted dishonestly.
1. The accused caused a financial disadvantage
The Crown contends that the financial disadvantage is [set out the financial disadvantage]. [Where relevant: It does not matter whether the financial disadvantage was permanent or temporary.]
2. The accused intended to carry out the deceptive conduct, or was reckless in that regard
The Crown alleges that the deception perpetrated by the accused was [set out the deception]. It must also prove that the accused perpetrated that deception intentionally to cause the financial disadvantage or acted recklessly in that regard. Here, reckless means foreseeing the possibility that, as a result of the deception, they would [cause a financial disadvantage to …] but went on to act as they did notwithstanding that possibility.
[Where relevant: However, it is not necessary for the Crown to prove a particular person was deceived.]
3. The financial disadvantage was suffered as a result of that deception
The Crown must also prove the financial disadvantage suffered by [the complainant] was caused by the deception. It is not necessary for the Crown to establish that the deception was the sole cause of the financial disadvantage, although it must establish that the deception substantially or significantly contributed to it.
4. In deceiving [the complainant], the accused acted dishonestly
The Crown must prove that in deceiving [the complainant] the accused acted dishonestly. Dishonest in this context means dishonest according to the standards of ordinary people. You, as ordinary members of the community, determine what is dishonest. You must be satisfied both:
-
that the accused, in deceiving [the complainant], acted dishonestly according to the standards of ordinary people; and
-
that the accused knew that their conduct was dishonest according to the standards of ordinary people.
[If a claim of right is raised as a response to an allegation of dishonesty: see Larceny at [5-6110] and [5-6105].]
[5-5940] Section 192F — intention to defraud by destroying or concealing records
The section makes it an offence to dishonestly destroy or conceal accounting records with the intention of obtaining property or a financial advantage.
As to obtaining, see [5-5910] and s 192C.
As to obtaining a financial advantage, see [5-5910] and s 192D.
As to dishonesty see [5-5910] and s 4B.
As to property, see [5-5910] and s 4.
As to destroy, “destroy” includes “obliterate”: s 192F(2).
- Note:
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The suggested directions below do not cover or describe every permutation of the offences (see earlier Note regarding the various definitions at [5-5920]) and should be modified to accommodate other forms of the offences where necessary. It can be easily adapted for offences of destroy or conceal records with intent to obtain financial advantage (s 192F(1)(b)),and destroy or conceal records with intent to cause financial disadvantage (s 192F(1)(c)).
The terms of s 192F, unlike s 192E, do not require financial advantage actually be obtained but rather that there be an intention to obtain such an advantage: Dimitriou v R [2025] NSWCCA 18 at [97]; Duncan v Independent Commission Against Corruption [2016] NSWCA 143 at [350]; Hughes v R [2021] NSWCCA 238 at [29].
[5-5945] Section 192F(1)(a) — Suggested direction — destroy or conceal records with intent to obtain property
The accused has been charged with dishonestly [destroying/concealing] accounting records being [set out the records alleged] with the intention of obtaining property belonging to [the complainant].
To prove the accused guilty, the Crown must prove beyond reasonable doubt each of the following elements:
- 1.
-
The accused [destroyed/concealed] accounting records,
- 2.
-
The accused intended to obtain property belonging to [the complainant],
- 3.
-
In [destroying/concealing] those records, the accused acted dishonestly.
1. The accused destroyed or concealed accounting records
The Crown must prove that the accused did [destroy/conceal] the accounting records belonging to another person. Property belongs to another person if that person has possession of the property.
2. The accused intended to obtain property
The Crown must also prove the accused had the intention of obtaining property belonging to [the complainant]. This means the accused intended to obtain possession of the property for themself and deprive [the complainant] permanently of the property.
[If necessary, add:
It is not enough for the Crown to prove that the accused simply intended to borrow the property or to enable some other person to use it before returning it to [the complainant]. But the offence will be made out if the Crown proves that the accused intended to treat the property as if it were their own and to dispose of it regardless of [the complainant’s] rights to the property. Borrowing or lending the property to another may amount to an intention to disregard [the complainant’s] rights if the borrowing or lending is for such a period and in such circumstances that it is the equivalent of taking or disposing of it outright.]
3. In destroying those records, the accused acted dishonestly
It must also prove that in [destroying/concealing] those records they acted dishonestly. Dishonest in this context means dishonest according to the standards of ordinary people. You, as ordinary members of the community, determine what is dishonest. You must be satisfied both:
-
that the accused, in [destroying/concealing] the records, acted dishonestly according to the standards of ordinary people; and
-
that the accused knew that their conduct was dishonest according to the standards of ordinary people.
[If a claim of right is raised as a response: see Larceny at [5-6110] and [5-6105].]
[5-5950] Section 192F(1)(b) — Suggested direction — destroy or conceal records with intent to obtain financial advantage
The accused has been charged with dishonestly [destroying/concealing] accounting records being [set out the records alleged] with the intention of [obtaining a financial advantage for themself/ keeping a financial advantage they have].
To prove the accused guilty, the Crown must prove beyond reasonable doubt each of the following elements:
- 1.
-
The accused [destroyed/concealed] accounting records,
- 2.
-
The accused intended to obtain a financial advantage,
- 3.
-
In [destroying/concealing] those records, the accused acted dishonestly.
1. The accused destroyed or concealed accounting records
The Crown must prove that the accused did [destroy/conceal] the accounting records belonging to another person. Property belongs to another person if that person has possession of the property.
2. The accused intended to obtain a financial advantage
The Crown must prove that the accused had the intention of obtaining a financial advantage from [the complainant]. The financial advantage alleged here is [set out the financial advantage]. It does not matter whether the financial advantage is permanent or temporary.
3. In [destroying/concealing] those records, the accused acted dishonestly
It must also prove that, in [destroying/concealing] those records, the accused acted dishonestly. Dishonest in this context means dishonest according to the standards of ordinary people. You, as ordinary members of the community, determine what is dishonest. You must be satisfied both:
-
that the accused, in [destroying/concealing] those records, acted dishonestly according to the standards of ordinary people; and
-
that the accused knew that their conduct was dishonest according to the standards of ordinary people.
[If a claim of right is raised as a response: see Larceny at [5-6110] and [5-6105].]
[5-5960] Section 192G — intention to defraud by false or misleading statement
Section 192G makes it an offence to dishonestly make, publish or concur in making or publishing, a statement (whether or not in writing) that is false or misleading in a material particular with the intention of obtaining property property belonging to another or obtaining a financial advantage or causing a financial disadvantage.
Definitions
As to obtaining property, see [5-5910] and s 192C.
As to obtaining a financial advantage, see [5-5910] and s 192D.
As to dishonesty, see [5-5910] and s 4B.
As to property, see [5-5910] and s 4.
Material — is not defined but to be material the statement must be of moment or of significance and not merely trivial or inconsequential in relation to the object to be achieved by making it: R v Maslen (1995) 79 A Crim R 199 at 202, applying Minister for Immigration, Local Government & Ethnic Affairs v Dela Cruz (1992) 34 FCR 348 at 352.
False — is not defined. A statement may be false because material facts have been omitted from it whereby it creates a false impression: R v M [1980] 2 NSWLR 195 at 204.
- Note:
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The terms of s 192G, unlike s 192E, do not require financial advantage actually be obtained but rather that there be an intention to obtain such an advantage: Dimitriou v R [2025] NSWCCA 18 at [97]; Duncan v Independent Commission Against Corruption [2016] NSWCA 143 at [350]; Hughes v R [2021] NSWCCA 238 at [29].
The suggested directions below do not cover or describe every permutation of the offences and should be modified to accommodate other forms of the offences where necessary.
[5-5965] Section 192G(a) — Suggested direction for obtaining property belonging to another — intention to defraud by false or misleading statement
The accused has been charged with dishonestly [making/publishing/concurring in the making/publishing of] a statement being [detail statement alleged] knowing that the statement was false or misleading in a material particular with the intention of obtaining the property of another person being [the complainant ].
To prove the accused guilty, the Crown must prove beyond reasonable doubt each of the following elements:
- 1.
-
the accused [made/published/concurred in the making/publishing of] the statement alleged in the charge;
- 2.
-
The accused knew the statement was false or misleading;
- 3.
-
The falsity or misleading nature of the statement was a material particular;
- 4.
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The accused [made/published a statement/concurred in the making/publishing of a statement] intending to obtain property belonging to another;
- 5.
-
The accused did these things dishonestly.
1. The accused [made/published/concurred in the making/publishing of] the statement alleged
The falsity or misleading nature of the statement that the Crown alleges was [made/published by the accused/the accused concurred in the making/publishing of] is that [detail the allegation of falsity or misleading nature of statement made]. The Crown must prove that the accused [made/published/concurred in the making/publishing of] the statement alleged in the charge.
2. The accused knew statement was false or misleading
The Crown must prove that the accused knew that this statement was false or misleading in the way alleged by the Crown.
3. The falsity or misleading nature was a material particular in the statement
The Crown must prove that the falsity or misleading nature alleged was of a material particular in that statement. A particular is material if it is of significance or consequence in that statement and not merely trivial or incidental. In determining whether the particular alleged to be false or misleading was material to the statement [made/published] you take into account the purpose for which the statement was [made/published] and whether the particular was capable of influencing the mind of the person to whom the statement was [made/published] in respect of the purpose for which the statement was [made/published].
4. The accused [made/published a statement/concurred in the making/publishing of a statement] intending to obtain property belonging to another
The Crown must prove the intention with which the accused [made/published the statement/concurred in the making/publishing of the statement]. The charge alleges that [the statement was made/published by the accused or the accused concurred in the making/publishing of the statement] with the intention, that is, for the purpose of, obtaining property belonging to another.
The intention of obtaining property belonging to another means that the accused intended to obtain possession for themself.
The Crown must prove that the accused intended to deprive the person who [was in possession or control of the property] or [had a proprietary right or interest in the property] here [the name of the person] permanently.
[If necessary add:
It is not enough for the Crown to prove that the accused simply intended to borrow the property or to enable some other person to use it before returning it to [the complainant]. But the offence will be made out if the Crown proves beyond reasonable doubt that the accused intended to treat the property as if it were their own and to dispose of it regardless of [the complainant’s] rights to the property. Borrowing or lending the property to another may amount to intention to disregard [the complainant’s] rights if the borrowing or lending is for such a period and in such circumstances that it is the equivalent of taking or disposing of it outright.]
5. The accused acted dishonestly
The Crown must prove that the accused did these things dishonestly. Dishonestly in this context means dishonest according to the standards of ordinary people. You, as ordinary members of the community, determine what is dishonest conduct. You must be satisfied both:
-
that the accused acted dishonestly in their involvement with a false or misleading statement in order to obtain another person’s property; and
-
that the accused knew their conduct was dishonest according to the standards of ordinary people.
[If necessary, give a direction on claim of right: see Larceny at [5-6110] and [5-6105].]
[5-5970] Section 192G(b) — Suggested direction for obtaining a financial advantage or causing a financial disadvantage — intention to defraud by false or misleading statement
The accused has been charged with dishonestly [making/publishing/concurring in the making/publishing of a statement] being [detail statement alleged] knowing that the statement was false or misleading in a material particular with the intention of [obtaining a financial advantage/causing a financial disadvantage].
To prove the accused guilty, the Crown must prove beyond reasonable doubt each of the following elements:
- 1.
-
the accused [made/published/concurred in the making/publishing of] the statement alleged in the charge;
- 2.
-
The accused knew the statement was false or misleading;
- 3.
-
The falsity or misleading nature of the statement was a material particular;
- 4.
-
The accused [made/published a statement/concurred in the making/publishing of a statement] intending to obtain a financial advantage/ cause a financial disadvantage;
- 5.
-
The accused did these things dishonestly.
1. The accused [made/published/concurred in the making/publishing of] the statement alleged in the charge
The falsity or misleading nature of the statement that the Crown alleges was [made/published by the accused/the accused concurred in the making/publishing of] is that [detail the allegation of falsity or misleading nature of statement made]. The Crown must prove that the accused [made/published/concurred in the making/publishing of the statement] alleged in the charge.
2. The accused knew the statement was false or misleading
The Crown must also prove that the accused knew that this statement was false or misleading in the way alleged by the Crown.
3. The falsity or misleading nature of the statement was a material particular
Finally, the Crown must prove that the falsity or misleading nature alleged was of a material particular in that statement. A statement is false or misleading in a material particular if the alleged false or misleading matter is of significance or consequence in that statement as a whole. That is, it was not merely trivial or incidental having regard to the contents of the statement. In determining whether the particular matter alleged to be false or misleading was material to the statement [made/published], you can take into account:
- (a)
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the purpose for which the statement was [made/published], and also
- (b)
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whether the particular matter was capable of influencing the mind of the person to whom the statement was [made/published] in respect of the purpose for which the statement was [made/published].
4. The accused intended to obtain a financial advantage/cause a financial disadvantage
[If the Crown alleges an intention to obtain a financial advantage, add:
The Crown must prove that the accused acted as they did with the intention of [obtaining a financial advantage for themselves/keeping a financial advantage that the accused has]. The financial advantage alleged here is [set out the financial advantage]. It does not matter whether the financial advantage was to be a permanent or temporary one.]
[If the Crown alleges an intention to cause a financial disadvantage, add:
The Crown must prove that the accused acted as they did with the intention of [causing a financial disadvantage to another person namely …]. The financial disadvantage alleged here is [set out the financial disadvantage]. It does not matter whether the financial disadvantage was to be a permanent or temporary one.]
5. The accused acted dishonestly
Finally, the Crown must prove that the accused did these things dishonestly. Dishonest in this context means dishonest according to the standards of ordinary people. You, as ordinary members of the community, determine what is dishonest. You must find be satisfied both:
-
that the accused acted dishonestly in their involvement with a false or misleading statement in order to [obtain a financial advantage/cause a financial disadvantage], and
-
that the accused knew their conduct was dishonest according to the standards of ordinary people.
[If a claim of right is raised as a response: see Larceny at [5-6110] and [5-6105].]
[5-5980] Section 192H — intention to deceive by false or misleading statement of officer of organisation
The offence against s 192H is concerned with an officer of an organisation making a false or misleading statement with the intention of deceiving members or creditors of the organisation about its affairs.
Section 192H(2) contains definitions for “Creditor”, “Officer”, “Organisation”.
Dishonesty — is defined in s 4B.
- Note:
-
The suggested directions below do not cover or describe every permutation of the offence and should be modified to accommodate other forms of the offence where necessary.
[5-5985] Section 192H(1) — Suggested direction — intention to deceive by false or misleading statement of officer of organisation
The accused has been charged that being an officer of an organisation with the intention of deceiving [members/creditors] of that organisation about its affairs, dishonestly [made/published a statement/concurred in the making/publishing of a statement], being [set out the statement alleged in the indictment] that to their knowledge was or might have been [false/misleading] in a material particular.
To prove the accused guilty, the Crown must prove beyond reasonable doubt each of the following elements:
- 1.
-
The accused was an officer of an organisation;
- 2.
-
The accused [made/published a statement or concurred in the making/publishing of a statement];
- 3.
-
The accused knew that the statement was or may have been [false/misleading] in a material particular;
- 4.
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The statement was [made/published/the accused concurred in it being made or published] with the intention of deceiving [member/creditors] of the organisation about the state of the organisation’s affairs;
- 5.
-
The accused acted dishonestly.
1. The accused was an officer of an organisation
Firstly, the Crown must prove that the accused was an officer of an organisation. An organisation is defined by the provision creating the offence to include any body-corporate or unincorporated association. Here the organisation alleged is [set out the organisation].
A person is an officer of such an organisation if they are a member of that organisation and are concerned in its management or are a person who purports to act as an officer of the organisation. Here the Crown alleges that the accused was [set out the allegation as to officer].
2. The accused [made/published a statement or concurred in the making/publishing of a statement]
The second fact the Crown must prove is that the accused as such an officer [made/published a statement or concurred in the making/publishing of a statement]. I have told you what the particular statement alleged in this case is, as set out in the charge in the indictment.
3. The accused knew the statement was or may have been [false/misleading] in a material particular
The third fact the Crown must prove is that, when acting in respect of that statement as the Crown alleges the accused did, they knew that the statement was or may have been [false/misleading] in a material particular. The Crown alleges that the statement was [false/misleading] in that it contained the following [set out the alleged false or misleading matter].
A statement is [false/misleading] in a material particular if the alleged [false/misleading] matter is of significance or consequence in that statement as a whole. That is, it was not merely trivial or incidental having regard to the contents of the statement. In determining whether the particular matter alleged to be [false/misleading] was material to the statement [made/published] you can take into account:
- (a)
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the purpose for which the statement was [made/published], and also
- (b)
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whether the particular matter was capable of influencing the mind of the person to whom the statement was [made/published] in respect of the purpose for which the statement was [made/published].
4. The statement was [made/published/the accused concurred in it being made or published] with the intention of deceiving [member/creditors] of the organisation about the state of the organisation’s affairs
The fourth fact the Crown must prove is that the statement was [made/published/the accused concurred in it being made or published] with the intention of deceiving [member/creditors] of the organisation about the state of the organisation’s affairs. To deceive someone is to cause that person to believe something that is knowingly untrue to the person practising the deceit.
[If the allegation is that the intention was to deceive creditors (and if relevant) insert:
For this offence, a creditor of an organisation includes a person who has entered into a security for the benefit of the organisation.]
5. The accused acted dishonestly
The final fact that the Crown must prove is that in acting the way the Crown alleges that the accused did, they acted dishonestly. Dishonest in this context means dishonest according to the standards of ordinary people. You, as ordinary members of the community, determine what is dishonest. You must be satisfied both:
-
that the accused acted dishonestly in their involvement with a false or misleading statement in order to deceive; and
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that the accused knew that this conduct was dishonest according to the standards of ordinary people.
[If a claim of right is raised as a response: see Larceny at [5-6110] and [5-6105].]