No Conviction For Deception Charges in SA
Talon Legal secured a without conviction outcome for a case involving deception against an insurance company before the matter was committed to the District Court.
Deception and fraud are serious criminal offences in South Australia which may attract crushing terms of imprisonment, especially when aggravated circumstances are alleged.
However, as demonstrated in this case study, a well crafted strategy that thoroughly examines the client’s personal circumstances, challenges the prosecution’s claims, and highlights the absence of significant harm may lead to favourable outcomes, even where the offence is likely to be proven.
In this matter, we acted for an individual who was charged with deception in relation to an insurance company which ultimately resulted in a without conviction outcome in the Adelaide Magistrates Court, sparring our client from a criminal record.
Background
Our client was elderly and diagnosed with complex mental health disorders at a young age. He was unable to pursue further education and lived with his parents for the most of this life before developing a serious disease. His parents passed away close to the date of the offence and this profoundly impacted his mental and exacerbated his physical well-being.
Managing his health was a constant struggle, compounded by financial difficulties and the necessity of taking more than 10 medications daily. Living alone in poor conditions, our client was disconnected from his remaining family and prior to being charged with deception against an insurance company, maintained a good character, with no prior arrests or charges.
The Allegations
The deception allegations related to a fraudulent insurance claim involving damage to a residential property following a storm. The prosecution alleged that our client submitted misleading information regarding not only the amount of damage after the insurance claim was filed, but also how and when the damage occurred.
Our client applied for a home insurance policy after a significant storm event occurred and effectively tried to back-date the insurance claim, and misled his insurer. The insurance company and the prosecution were able to use meteorological data to demonstrate that the damage to our client’s roof structure could not have occurred at the time of the claim.
In a nutshell, our client’s home was damaged, and he applied for insurance after the fact to recoup the cost of repairs, and was dishonest about the nature and timing of the damage.
The evidence against our client was robust and the insurance company engaged a private investigator to speak with our client, who made full admissions – despite being under no obligation to speak with a private civil investigator.
Unfair Interview
A critical aspect of the case involved the conduct of the insurer’s private investigator during the interview process:
- Lack of Caution and Representation – Our client was not cautioned nor was he provided the opportunity to decline participation in the interview or to have another person present. This oversight is particularly significant given his cognitive impairments and the numerous medications he takes daily.
- Prejudicial Conduct – The manner in which the interview was conducted deprived our client of his meaningful right to silence and may have prejudiced his ability to provide accurate and voluntary statements.
- Vague Purpose – The private investigator failed to clearly state the purpose of the interview, instead informing the client that the insurer would “rely upon the answers to help them assess this insurance claim.” This lack of clarity was confusing, untrue and insufficient, especially for someone with cognitive impairments – instead, the answers were relied on by the prosecution.
- Potential Inadmissibility – Unlike police officers, who are obligated to caution individuals that their statements may be used as evidence, the private investigator did not afford our client the same protections. Consequently, the interview may be deemed inadmissible, weakening the prosecution’s case.
Our Strategy
1. Challenging the Interview Process
- Unfairness to the Accused – We argued that the lack of caution and the absence of legal representation during the interview violated our client’s rights, potentially rendering the interview inadmissible.
- Cognitive Impairment – Highlighting his cognitive impairments and the burden of managing 10+ medications daily, we emphasised that the interview was conducted unfairly.
2. Mitigating Personal Circumstances
- Health Issues – We liaised with our client’s doctor and obtained comprehensive medical documentation demonstrating the severe impact of his health conditions on his ability to cope with the vicissitudes of daily life.
- Emotional and Financial Struggles – The sudden loss of his parents exacerbated his mental and physical health, contributing to his compromised state during the time of the offence.
3. Lack of Significant Harm or Benefit
- Minimal Damages – With damages to the insurer limited to just the cost of a private investigator, we argued that the offence did not result in substantial financial or proprietary harm.
4. Prior Good Character
- Reference Letters – We provided strong character reference letters attesting to his good character and unblemished record, reinforcing the notion that this offence was an anomaly.
- Cooperation and Remorse – Our client was cooperative with the police, made full admissions during the interview, and expressed genuine remorse for his actions.
5. Compromise
- Good Behaviour Bond – We persuaded the Court that good reason existed to discharge our client without conviction upon him entering into a good behaviour pond pursuant to section 97 of the Sentencing Act 2017 (SA). We proposed that, given the mitigating circumstances, our client should be discharged without conviction upon entering a lengthy good behaviour bond.
- Restitution Order – Recognising the minimal financial impact, our client also made voluntary restitution prior the attending court in a bid to essentially undo the financial detriment to the insurer. A key element to our negotiation with the Prosecution was securing their agreement that financial / property crimes are a rare species of crime where the “harm” element may essentially be undone.
The Outcome
We secured the prosecution’s agreement to our client entering into a good behaviour bond and being discharged without conviction. A joint submission was then made in Court before the Presiding Magistrate, and after hearing our submissions in mitigation of the penalty, the Court made the following orders:
- Discharge Without Conviction;
- 12 month Good Behaviour Bond;
- $150 Victims of Crime Levy;
- $160 Prosecution Costs; and
- Court costs were waived.
This outcome spared the client from a criminal record, allowing him to focus on his health and personal well-being without the stigma of a criminal record for dishonesty offences which preclude most forms of meaningful employment.
Book a Free 30 Minute Consultation
Our Adelaide criminal defence lawyers are experts in financial crimes, dishonesty and fraud offences. We have a proven track record of securing charge withdrawals and non-conviction orders.
If you or someone you know is charged with deception in South Australia, it is crucial to get expert legal advice in order to not only preserve diminishing sentencing discounts, but to also marshal a robust defence to the allegations.
Contact Talon Legal today for a free 30 minute consultation. Our experts can often meet with you to discuss your case on the same day and are standing by to provide a discrete, no obligation, case consultation in order to ensure you receive fair treatment under the law.
