Deception and Fraud Lawyers
Deception and fraud charges theft, or financial crimes can be daunting. Talon Legal's dedicated team of criminal defense lawyers in Adelaide is here to provide you with the robust legal representation you need. Our expertise in handling complex cases ensures that your rights are protected.
What is Deception in South Australia?
Deception or fraud is a serious indictable criminal offence pursuant to section 139 of the Criminal Law Consolidation Act 1935 (SA).
A person is guilty of deception where the Prosecution proves beyond a reasonable doubt that they intentionally deceived another for their own benefit, or for the benefit of someone else, or to cause detriment to someone.
Our experienced Adelaide fraud lawyers have a proven track record of securing charge withdrawals, acquittals and non-conviction orders for even the most serious dishonesty offences.
Book a same-day free 30-minute consultation or call (08) 7094 2021 to speak with a criminal lawyer specialising in deception and fraud offences
Examples of Deception
This may include:
- Financial gains or losses;
- Impacts on personal or business reputation; or
- Financial manipulation and identity theft.
A person may also be charged with Deception, pursuant to section 5(3a) of the Criminal Procedure Act 1921 (SA):
- If an attempt is made to commit such an offence; or
- By aiding, abetting, counselling or procuring such an offence; or
- Conspiring to commit such an offence; or
- Being an accessory after the fact to such an offence.
Major Indictable Deception Charges
Deception charges involving $30,000 or more will upgraded to a major indictable offence and heard in the District Court of South Australia.
Obtaining a Financial Advantage
For example, while the relevant benefit must be a financial advantage and may include an extension of time to pay a debt (Matthews v Fountain [1982] VR 1045), what is really at stake is whether an avoidance of detriment on the part of the debtor can amount to an advantage.
What is Deception?
The definitions of “deceive” and “deception” may be found in section 130 of the Act. Deception may include deception by words or conduct, an act or omission such as:
- With the intention of causing a computer system or machine to do an unauthorised act;
- A misrepresentation about the past, present or future, and misrepresentations of law and or intention;
- An action alone may constitute deception, such as a driving instructor whose licence was cancelled but continues to act as an instructor and receives payment.
Deception via Misrepresentation by Conduct
Usually, the misrepresentation on which the deception is based must be express rather than implied and a charge of deception must state the specific misrepresentation that is relied upon.
Examples of Misrepresentation by Conduct
- Persons taking a taxi presenting by their conduct that they have enough money to pay the fare;
- A person who conducts a driving school represents by their conduct that they are duly licensed;
- Persons who order and eat meals in a restaurant represent by their conduct that they will pay for it;
- The giving of a post-dated cheque can be a representation that it will be met on presentation; or
- The use of a credit card is a representation by conduct that the cardholder is acting within the terms of the contract with the financier.
Penalty for Deception in South Australia
| Offence | Imprisonment |
|---|---|
| Basic Offence | 10 Years |
| Aggravated Deception | 15 Years |
Frequently Asked Questions About Deception and Fraud in SA
How is deception different from theft in South Australia?
Unlike a theft and receiving, section 139 does not require that the accused obtained anything as a result of a deception.
Therefore, there is no distinction between obtaining, and attempting to obtain, by deception.
However, the intention to misappropriate must be proved to have existed when the deception was made (Theophilus v Police [2011] SASC 135 at [94]).
What is a “benefit” in deception and fraud cases?
Section 130 broadly defines “benefit” as meaning a:
- A benefit of a proprietary nature;
- A financial advantage; or
- A benefit by exercise of public duty.
Cases that considered the meaning of a ‘benefit‘ held that a benefit should be given its plain meaning and not construed narrowly. However, this is not always straightforward.
What is a “detriment” deception and fraud cases?
The relevant detriment means a detriment of a proprietary nature, or a financial disadvantage, or loss of an opportunity to gain a benefit, or a detriment by exercise of a public duty. This extends the offence beyond property and into a benefit or causing a detriment.
What is a "financial advantage" in deception cases?
The Supreme Court of South Australia, Full Court in Collins v R [2020] SASCFC 96, noted the following in relation to the concept of financial advantage:
- An advantage involves a particular situation which is more beneficial to the person concerned than another relevant situation with which it is compared;
- A financial advantage involves a situation which from the financial aspect is more beneficial than another situation;
- Obtaining a financial advantage by deception requires improving a financial situation by means of that deception;
- A financial advantage occurs where a person is put in a favourable or superior economic, monetary or commercial position — a situation where the financial aspect is more beneficial than another; and
- This can include a situation where a person is given the opportunity to earn remuneration in employment;
- It is not an essential element of a financial advantage that it is capable of being valued in money;
- A financial advantage does not have to be a lawful advantage;
- The question is not whether the defendant was legally entitled to take or retain a financial advantage, but whether the defendant did in fact obtain it.
In the case of Collins, a financial advantage was obtained once other persons deposited money into a third-party company’s bank account over which the appellant had control.
What does it mean to act dishonestly in South Australia?
Section 131(1) of the Act states that a person acts dishonestly according to the standards of ordinary people and knows that he or she is so acting. The property must be obtained dishonestly.
This is a mental requirement in South Australia. While the fact there has been a deception will indicate dishonesty, this will not always be the case.
An accused may for example have an honest belief in a legal claim to property, and uses dishonesty to obtain it. In these circumstances, the individual would not be guilty of an offence.
What does the prosecution need to prove in a deception or fraud case?
The prosecution must prove that the accused acted dishonestly and that their actions caused financial loss to another person. We have a proven track record of challenging police on this very issue and securing charge withdrawals or non-conviction orders.
How is obtaining money by deception different from dishonest dealings in South Australia?
Obtaining money by deception involves gaining financial advantage through misleading or false information, whereas dishonest dealings with documents involve tampering with documents for fraudulent gain. We specialise in defending both types of offences.
Can I still be charged if no money was lost?
Yes. Deception can involve non-monetary benefits, such as gaining unauthorised access or services. For instance, using false credentials to obtain free medical treatment constitutes deception.
Can words alone constitute deception?
Yes, words alone can amount to deception if they mislead the victim and induce a financial or proprietary disadvantage.
Can I be convicted if I didn’t know my actions were illegal?
Ignorance of the law does not excuse dishonest conduct. If the accused intended to mislead or deceive, the act qualifies as deception regardless of their understanding of the law.
Aggravated Deception
The maximum penalty for deception in South Australia increases if the offence occurs under aggravated circumstances such as those in section 5AA of the Criminal Law Consolidation Act 1935 (SA) and include:
- If the offence involves victims who are especially vulnerable due to age, disability, or their relationship to the offender;
- The offence abuses a position of authority or trust;
We have a proven track record of securing charge withdrawals and even non-conviction orders for deception charges, including in aggravated circumstances (such as in deception in the course of employment).
Defences for Deception
Defending against a deception charge may involve proving:
- Duress – The actions were taken under coercion.
- Factual Dispute – Disagreements over the facts as presented by the prosecution.
- Lack of Intention – No intent to deceive.
- Honest and Reasonable Belief — If the accused can demonstrate a genuine and reasonable belief in the truth of their statements or actions, it may negate dishonesty.
- Identification Dispute – If evidence shows the accused was not responsible for the act of deception, this defence may succeed.
- Mental Impairment – Inability to understand actions due to mental health issues.
- No Causal Connection – The prosecution must establish a direct link between the deception and the benefit or detriment. If the victim was not actually deceived, the charge may fail.
Wrongly Charged With Deception?
Regrettably, in our experience we observed the Prosecution incorrectly charging individuals with deception despite the absence of any “benefit” or “financial advantage”.
See our deception case study where we successfully defended a client by demonstrating a lack of intent and the absence of any benefit.
This may occur where the allegations appear to cast the accused in a dishonest light, but the accused’s conduct did not actually confer any benefit or financial advantage or cause any detriment.
What The Prosecution Must Prove
To secure a conviction for deception under Section 139, the prosecution must prove the following elements beyond a reasonable doubt:
- Deception – The accused engaged in a deliberate act of misrepresentation by:
- Words (e.g., false claims);
- Conduct (e.g., pretending to hold a qualification); or
- Omissions (e.g., withholding relevant information).
- Dishonesty – The conduct was dishonest by the standards of reasonable and honest people, and the accused knew it was dishonest.
- Intent – The accused intended to:
- Gain a benefit for themselves or another person, or
- Cause a detriment to another person.
In R v Gilmartin [1983] QB 953, a notable English case concerning offences of obtaining property and pecuniary advantage by deception, particularly in the context of issuing post-dated cheques without sufficient, the court held that issuing a post-dated cheque implied an intent to pay. If the issuer knew the cheque would not clear, the act became deceptive.
In Kennison v Daire, the accused used a deactivated bank card to withdraw funds. The court held that misleading an ATM constituted deception because the bank’s system could not consent.
Overlap Between Deception and Theft
Section 139 often overlaps with theft and receiving offences under Section 134 of the CLCA, as deception frequently involves appropriating property or services dishonestly. However, deception extends beyond theft by including:
- Financial advantages – For example, fraudulently securing loans or credit.
- Services – Deceptively obtaining services without intending to pay.
- Goods – Selling items on Gumtree and not delivering the goods to the buyer after payment is made.
- Unauthorised Access – If an individual gains unauthorised access to another person’s bank account through misrepresentation, they may be charged with both theft and deception.
Deception offences are distinct from related offences like theft or serious criminal trespass or dishonest dealings with documents due to their reliance on dishonesty and misrepresentation rather than direct appropriation.
While theft requires an act of taking property without consent, deception focuses on misleading actions or statements to gain benefits or cause detriment.
Other Crimes of Dishonesty
Other less serious dishonesty offences may also be charged under the Summary Offences Act 1953 (SA). These offences are heard in the Magistrates Court of South Australia and carry lower maximum penalties than more serious indictable offences such as deception.
However, even summary offences sill require proof of the same elements (i.e., a person knowingly acted dishonestly and did so to gain either a benefit for themselves or someone else, to the detriment of another). These offences may include:
- Passing valueless cheques;
- Fraudulent acting as a spiritualist or medium;
- Avoiding payment of an entrance fee; and
- Fraudulently selling educational materials.
Book a Free 30 Minute Consultation
If you are charged with deception or fraud in South Australia, you deserve the best defence possible.
Our experienced criminal defence lawyers in Adelaide have a proven track record of securing charge withdrawals, acquittals and non-conviction orders even more for the most serious deception charges.
Book a free confidential 30-minute consultation and receive a discrete case assessment.
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