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7.5.13.1 - Charge: Obtaining a Financial Advantage By Deception

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The Elements

I must now direct you about the crime of obtaining a financial advantage by deception. To prove this crime, the prosecution must prove the following 3 elements beyond reasonable doubt.

One - the accused obtained a financial advantage.

Two - the accused obtained the financial advantage by deception.

Three - the accused obtained the financial advantage dishonestly.

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

Obtaining a Financial Advantage

The first element that the prosecution must prove is that the accused obtained a financial advantage.

In this case the prosecution alleged that NOA obtained the following financial advantage: [describe financial advantage and prosecution evidence and/or arguments].

[If the accused did not obtain the financial advantage for him or herself, add the following shaded section]

You will notice that it is not alleged that the accused obtained a financial advantage for him/herself. That does not matter. This element will be satisfied if s/he obtained a financial advantage for another person.

The defence denied that [describe defence argument, e.g., "that any financial advantage was obtained" or "that what the accused obtained was a "financial advantage". Insert defence evidence.]

[If there is an issue about whether a "financial advantage" was obtained, add the following shaded section]

In determining whether the accused obtained a financial advantage, you should give the words "financial advantage" their plain meaning. They cover any type of financial advantage, including [insert relevant example]. This means that the first element will be met if you are satisfied that [explain findings necessary for the relevant accused to have obtained a financial advantage].

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

Deception

The second element that the prosecution must prove is that the accused obtained the financial advantage 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 second 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 second 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 second 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 financial advantage, 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 financial advantage 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 that [describe representation].

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

In this case you will notice that NOA did not obtain the financial advantage directly from NOC. That does not matter. You do not need to find that the financial advantage was obtained from the same person who was deceived. This part of the second element will be satisfied as long as you find that the accused deceived someone, and that as a result the accused obtained a financial advantage.

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 financial advantage.]

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 financial advantage as a result of making that false representation, that this second element will be met. If any of these matters have not been proven beyond reasonable doubt, then NOA will be not guilty of obtaining a financial advantage by deception.

Dishonesty

The third element that the prosecution must prove is that when the accused obtained the financial advantage, s/he was acting dishonestly.

In this context, "dishonesty" does not have its ordinary meaning. The law says that a person acts dishonestly when obtaining a financial advantage if that person does not believe that he or she has a legal right to obtain that financial advantage.

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

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

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

[If the accused’s belief may have been incorrect or unreasonable, add the following 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 financial advantage, 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 financial advantage. 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 financial advantage.

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

Summary

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

One – that NOA obtained a financial advantage; and

Two – that NOA obtained the financial advantage by deception. That is:

Three – that NOA did not believe that s/he had a legal right to obtain the financial advantage.

If you find that any of these elements have not been proved beyond reasonable doubt, then you must find NOA not guilty of obtaining a financial advantage 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

7.5.13 - Obtaining a Financial Advantage By Deception

7.5.13.2 - Checklist: Obtaining a Financial Advantage by Deception