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7.5.12.1 - Charge: Obtaining Property by Deception

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The Elements

I must now direct you about the crime of obtaining property by deception. To prove this crime, the prosecution must prove the following 4 elements beyond reasonable doubt:

One - the accused obtained property that belonged to another person.

Two - the accused intended to permanently deprive that person of his or her property.

Three - the accused obtained the property by deception.

Four - the accused obtained the property dishonestly.

I will now explain each of these elements in more detail. [1]

Obtaining Property Belonging to Another

The first element that the prosecution must prove is that the accused obtained property that belonged to another person.

There are three parts to this element:

 

Obtaining

For the first part of this element to be met, the prosecution must prove that the accused obtained the [identify property].

The law says that a person "obtains" something if s/he obtains ownership, possession or control of it.

If the accused did not obtain the property for him or herself, add the following shaded section

The accused does not need to have obtained the property for him/herself. This requirement will be satisfied if s/he [obtained the property for another person / enabled another person to obtain the property / enabled another person to retain the property].

In this case the prosecution alleged that NOA obtained the [identify property] because s/he [describe prosecution arguments and evidence concerning the way in which the accused obtained the property]. The defence denied this, arguing [describe defence arguments and evidence].

It is for you to determine, based on all the evidence, whether NOA obtained the [identify property]. If you are not satisfied that s/he did, then s/he will be not guilty of obtaining property by deception.

Property

The second part of this element requires the thing obtained to be "property".

"Property" is a technical legal term, which includes many different things. It does not only refer to physical objects.

Of relevance to this case, [describe relevant type of property] is a type of "property". This means that this part of the first element will be met if you are satisfied that what NOA obtained was [describe type of property].

The prosecution argued [insert prosecution evidence and/or arguments]. The defence denied that this was the case, arguing [insert defence evidence and/or arguments].

For this element to be satisfied, you must find that [explain findings necessary for the relevant item to be classified as property]. If you are not satisfied that this was the case, then the accused will be not guilty of obtaining property by deception.

Belonging to Another

[If there is an issue about whether the property belonged to another, add the following shaded section.]

The third part of this element requires the thing obtained to have belonged to another person at the time it was obtained.

The law says that property "belongs" to anyone who has possession or control of that property, or who has any other proprietary right or interest in it. This includes [insert relevant example].

In this case the prosecution alleged that the [describe property] belonged to NOC. [Insert prosecution evidence and/or arguments]. The defence denied this, arguing [insert defence evidence and/or arguments].

[If there is uncertainty about which third party the property belonged to, add the following shaded section]

The prosecution does not need to prove who the property actually belonged to, as long as they can prove that it belonged to someone other than the accused.

[If it is alleged that the accused had a proprietary right in the relevant property, add the following shaded section]

It does not matter if you find that the accused had [describe property right]. If another person also had [describe property right] that was obtained, then for the purposes of this element the property belonged to another person.

It is for you to determine, based on all the evidence, whether [identify property]belonged to another person. It is only if you are satisfied beyond reasonable doubt that it did that this element will be met. If you are not satisfied that this is the case, then NOA will be not guilty of obtaining property by deception.

Intention to Permanently Deprive

The second element that the prosecution must prove is that, when the accused obtained the property, s/he intended to permanently deprive the owner of it. That is, s/he intended that the owner would never get the property back.

It does not matter whether the accused intended to keep, sell, give away, destroy or hide the property. If his/her intention was that the owner would not get it back, then s/he will have had the necessary intention.

[If the accused may not yet have formed the relevant intention when s/he obtained the property, add the following shaded section]

For this element to be met, the accused must have already decided not to return the property to its owner when s/he obtained it. This element will not be satisfied if, when the accused obtained the property, s/he was not yet certain whether or not s/he would give it back – only deciding later that s/he was going to keep it.

[If the accused may have only had an intention to temporarily deprive the owner of his/her property, add the following shaded section]

The accused’s intention must have been to permanently deprive the owner of the property. This element will not be met if s/he only meant to deprive the owner of his/her property temporarily, and then to give it back to him/her.

[If it is alleged that the accused was only going to return the property after its nature had been fundamentally changed, add the following darker shaded section]

However, if the accused was only planning on returning the property after its nature had been fundamentally changed, you may find that s/he intended to permanently deprive the owner of that property. This is because, although it may seem that s/he intended to return the owner’s property, in reality s/he did not intend to give back what s/he took – s/he intended to return something that was completely different.

That is what the prosecution argued happened here. [Insert prosecution evidence and/or arguments]. The defence denied this, alleging [insert defence evidence and/or arguments].

[If it is alleged that the accused was only borrowing the property, add the following shaded section]

In this case the defence alleged that the accused did not intend to keep the property in question, but was merely borrowing it. [Identify relevant evidence and/or arguments.]

This element will not be met if you find that NOA intended to return the [identify property]. This is true even if s/he borrowed it without permission.

[If the borrowing may have amounted to an outright taking, add the following darker shaded section]

[Warning: this direction will only be relevant in exceptional cases. See the discussion of s73(12) in Obtaining Property by Deception.]

However, if the accused borrowed the property for a period, or in circumstances, which made it equivalent to an outright taking or disposal, then the law says that s/he will have had an intention to permanently deprive the owner of the property. This will be the case even if s/he intended to give the property back eventually.

That is what the prosecution alleged happened here. [Insert prosecution evidence and/or arguments]. The defence denied this, arguing [insert defence evidence and/or arguments].

[If it is alleged that the accused intended to replace the money or goods obtained, add the following shaded section]

In this case, you have heard evidence that although NOA received [money / describe object]from NOC, s/he intended to replace it.

Even if you find this to be the case, that does not mean that NOA did not intend to permanently deprive NOC of his/her property. Unless s/he was planning on returning to NOC the exact same [notes / coins / object] that s/he obtained, NOA will have had an intention to permanently deprive NOC of his/her property. Returning an equivalent [amount of money / item] is not sufficient.

[If the accused did not have an intention to permanently deprive, but may have had an intention to treat the property as his/her own, add the following shaded section]

[This direction is based Crimes Act 1958 s73(12). It should only be used in exceptional cases. See Obtaining Property by Deception for further information.]

There is one exception to the rule that the accused had to intend to permanently deprive the owner of his/her property. This arises where, despite not having such an intention, the accused intended to treat the property as his/her own to dispose of regardless of the owner’s rights.

[If it is alleged that the accused parted with the property under a condition as to its return that s/he may not have been able to perform (e.g. by pawning the property), add the following darker shaded section]

The law says that a person will have done this if, for his/her own purposes and without the owner’s consent, s/he parted with the property under a condition that s/he may not be able to meet.

The prosecution alleged that that was the case here. [Insert prosecution evidence and/or arguments.] The defence denied this, arguing [insert defence evidence and/or arguments].

If you are satisfied beyond reasonable doubt that the accused did intend to treat the [describe property] as his/her own to dispose of regardless of NOC’s rights, then this element will be proven, even if NOA ultimately intended to give back the property.

Deception

The third element that the prosecution must prove is that the accused obtained the property by deception.

There are four parts to this element, all of which must be proven beyond reasonable doubt:

I will now explain each of these parts in more detail.

False Representation

For the first part of this element to be met the accused must have made a false representation.

The representation can have been made in words or by conduct, and does not need to have been explicit. That is, you may be able to infer the representation from the accused’s words or conduct. You will remember what I have told you about inferences. [2]

[If it is alleged that the representation only became false after it was made, add the following shaded section]

The representation must have been false at the time it was made. This part of the third element will not be satisfied if the representation was true at that point in time, but later became false. [3]

In this case it is alleged that the accused falsely represented that [describe alleged false representation]. [4]

[If the representation is to be implied from a promise, add the following shaded section]

You will notice that although it is alleged that the accused promised [describe promise], that promise is not the representation that I just mentioned. Instead, the alleged representation that you must focus on is [describe implicit representation].

This is because the law says that the false representation must be about existing or past facts. It cannot be a representation about something that is going to happen in the future.

This part of the third element will therefore not be satisfied simply because a person makes a promise which they do not keep. A broken promise is not a false representation about an existing of past fact.

However, when a person makes a promise s/he may make an implicit or unspoken representation that s/he intends to act in a certain way. For example, s/he may represent that s/he intends to keep the promise by performing specific actions. As such a representation is about that person’s present intentions, it meets the requirement that the representation be about an existing fact.

So in this case, it is not enough for you to find that NOA promised to [describe promise] and broke that promise. You must also be able to infer, beyond reasonable doubt, that when NOA made the promise, s/he was stating his/her current intention to [describe alleged intention] – and that that representation was false.

[Insert prosecution evidence and/or arguments concerning the making of the representation and its falsity].

[If the defence denied that the accused made the alleged representation, add the following shaded section]

The defence denied that NOA made that representation, arguing [insert defence evidence and/or arguments].

[If the defence denied that the representation was false, add the following shaded section]

While the defence agreed that NOA made that representation, they denied that it was false at the time it was made. [Insert defence evidence and/or arguments].

It is for you to determine whether or not NOA represented that [describe representation], and whether that representation was false when it was made. It is only if you are satisfied that s/he did make a false representation that this part of the third element will be satisfied.

Knowledge of Falsity / Recklessness

For the second part of this element to be met the accused must have known that the representation was false or was probably false when s/he made it.

It is not sufficient for NOA to have known that it was possible that the representation was false. S/he must have at least known that it was probably false.

In determining this part of the element, you must be satisfied that NOA him/herself knew of the likelihood that the representation was untrue. It is not enough that you or a reasonable person would have recognised that probability in the circumstances.

In this case, the following evidence is relevant to your assessment of NOA’s state of mind: [Identify relevant evidence and the inferences to be drawn from that evidence].

Intention That Representation Be Acted Upon

For the third part of this element to be met the accused must have intended that the false representation be acted upon by NOC.

If you consider that it is reasonably possible that NOA did not intend NOC to act upon that representation and thereby permit NOA to obtain the [describe property], then NOA will not be guilty of this offence.

[Insert any relevant evidence or arguments.]

Causation

For the fourth part of this element to be met the accused must have obtained the property as a result of making the false representation.

In this case, that requires you to find that NOC would not have acted in the way s/he did had it not been for NOA’s representation [describe representation].

[If it is not alleged that the property was obtained from the same person who was deceived, add the following shaded section]

In this case you will notice that it was not NOC's property that NOA is alleged to have obtained as a result of the deception. That does not matter. You do not need to find that the property was obtained from the same person who was deceived. This part of the third element will be satisfied as long as you find that the accused deceived someone, and that as a result the accused obtained the property.

The prosecution alleged that that was the case here. [Insert prosecution evidence and/or arguments, identifying who it is alleged believed the representation and how that led to the accused obtaining the property.]

The defence denied this, arguing [insert defence evidence and/or arguments].

It is only if you are satisfied that NOA made a false representation despite knowing it was false or probably false, and that s/he intended that representation would be acted upon, and that s/he obtained the property as a result of making that false representation, that this third element will be met. If any of these matters have not been proven beyond reasonable doubt, then NOA will be not guilty of obtaining property by deception.

Dishonesty

The fourth element that the prosecution must prove is that when the accused obtained the property, s/he was acting dishonestly.

In this context, "dishonesty" has a special legal meaning. The law says that people act dishonestly when they obtain property if they do not believe that they have a legal right to obtain that property.

In this case, the defence alleged that NOA did believe that s/he had a legal right to obtain the property. [Describe defence evidence and/or arguments.]

To prove this element, the prosecution must prove that NOA did not have this belief.

The issue here is whether the prosecution have proved that NOA did not believe s/he had a legal right to obtain the property. This is solely a question about NOA’s state of mind about his/her legal entitlement to the property. This is not a question about whether or not NOA believed s/he was entitled to use deception to obtain the property. Even if NOA knew that s/he should not have obtained the property in the way that s/he did, s/he will only be guilty of obtaining property by deception if the prosecution prove that s/he did not believe s/he had a legal right to the property.

[If the accused may have believed s/he had a moral right to take the property, add the shaded section]

The prosecution need only prove that NOA did not believe that s/he had a legal right to take the property. It is no defence for NOA to have believed that s/he had a moral right to the property.

[If the accused’s belief may have been incorrect or unreasonable, add the following darker shaded section]

It is important to note that NOA’s belief does not need to have been correct, or even reasonable. However, the reasonableness of the accused’s alleged belief is not irrelevant. In determining whether the prosecution have proved that NOA did not in fact believe s/he had a legal right to obtain the property, you may consider whether his /her asserted belief was reasonable in all the circumstances.

I want to reiterate that it is for the prosecution to prove that the accused did not believe that s/he had a legal right to obtain the property. It is not for the defence to prove that s/he did have such a belief.

In determining whether NOA did not have this belief, your sole focus should be on his/her state of mind at the time s/he [describe relevant act]. The issue is not whether you think s/he was right or wrong to do what s/he did, but whether s/he did not believe s/he had a right to obtain the property.

It is only if you are satisfied, beyond reasonable doubt, that the accused did not believe [describe relevant belief] that this fourth element will be met.

Summary

To summarise, before you can find NOA guilty of obtaining property by deception, the prosecution must prove to you, beyond reasonable doubt:

One – that NOA obtained property that belonged to NOC; and

Two – that NOA intended to permanently deprive NOC of that property; and

Three – that NOA obtained the property by deception. That is:

Four – that NOA obtained the property dishonestly.

If you find that any of these elements have not been proved beyond reasonable doubt, then you must find NOA not guilty of obtaining property by deception.

Notes

[1] If an element or part of an element is not in issue it should not be explained in full. Instead, the element should be explained briefly, and followed by an instruction such as: "It is [admitted / not disputed] that NOA [describe conduct, state of mind or circumstances that meet the element], and you should have no difficulty finding this element proven."

[2] This charge assumes that the jury has already been charged about inferences. If this has not been done, the charge will need to be modified accordingly.

[3] If it is alleged that the accused knew that his or her original representation had become false, and kept silent about it – thereby implicitly representing that the situation remained the same – it will be necessary to explain that it is that implicit representation that forms the basis of the charge, not the original representation. See Obtaining Property by Deception for guidance.

[4] If the representation is to be implied from a promise, care must be taken to refer to the accused’s implicit representation about his or her intentions when s/he made the promise, rather than the promise itself: see Obtaining Property by Deception.

Last updated: 3 December 2012

See Also

7.5.12 - Obtaining Property By Deception

7.5.12.2 - Checklist: Obtaining Property by Deception