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FINANCIAL CRIME

Fraud and Financial Crime Defence

A fraud allegation is an allegation of dishonesty, and that is what makes it so damaging. For anyone in a regulated profession, a position of trust, or a role that requires bonding or a security check, the consequences of a conviction reach well past the courtroom. These cases are document heavy, and that is where they are won.

THE CHARGE

What fraud requires the Crown to prove

Fraud under section 380 has two elements that matter: a dishonest act, and deprivation or risk of deprivation caused by it.

The dishonest act can be deceit, falsehood or other fraudulent means, which is a deliberately broad category. The deprivation does not require an actual loss, only that the victim’s economic interests were put at risk. Both elements must be accompanied by subjective knowledge that the conduct could cause that risk.

That knowledge requirement is where the real contest usually lies. Commercial disputes, accounting failures, poor record keeping and genuine misunderstandings all produce losses. What separates a civil dispute from a criminal fraud is the state of mind of the accused, and that has to be proved, not assumed from the fact that money went missing.

Fraud over and under five thousand dollars

Fraud over five thousand dollars is indictable with a maximum of fourteen years and attracts firm Crown positions, including custody in significant cases. Fraud under that amount is treated far more flexibly, and non conviction outcomes with restitution are realistic.

Identity offences and forgery

Identity theft and identity fraud under sections 402.2 and 403, forgery under section 366 and uttering a forged document under section 368 frequently accompany a primary fraud count. Each has its own elements and each has to be proved separately.

THE CHARGES IN THIS GROUP

What you may be facing

Fraud over $5,000, s. 380(1)(a)
Indictable, maximum fourteen years. Loss quantification and intent are the contested issues.
Fraud under $5,000, s. 380(1)(b)
Frequently resolvable with restitution and without a criminal record on a first allegation.
Identity theft, s. 402.2
Obtaining or possessing identity information for the purpose of a fraudulent offence.
Identity fraud, s. 403
Using another person’s identity information to gain an advantage.
Forgery, s. 366
Making a false document with intent that it be acted upon as genuine.
Uttering a forged document, s. 368
Using or dealing with a document known to be forged.
Fraudulent use of credit card data, s. 342
Very commonly charged alongside possession and identity counts.
Laundering proceeds of crime, s. 462.31
Dealing with property knowing it was derived from an offence.
THE BURDEN OF PROOF

What the Crown has to prove

Every element must be established beyond a reasonable doubt. If one element fails, the charge fails with it.

THE ELEMENTS
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A dishonest act, being deceit, falsehood or other fraudulent means measured against the standard of the reasonable person.
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Deprivation, or a real risk of deprivation, to the economic interests of the victim caused by that act.
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Subjective knowledge on the part of the accused of the dishonest act and of the risk it created.
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That the accused is the person responsible, which in cases built on shared accounts, corporate structures and multiple signatories is frequently the weak point.
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The quantum alleged, which drives the charge and the exposure and is very often overstated in the initial information.
EXPOSURE

Penalties and consequences

Fraud over $5,000
Up to fourteen years on indictment, with custodial sentences ordinary in large or breach of trust cases.
Breach of trust findings
Where the fraud involved an employer or a fiduciary role, courts treat it as a significant aggravating factor.
Professional consequences
Regulated professionals face reporting obligations and disciplinary proceedings that can end a career independently of the criminal outcome.
Restitution and forfeiture
Repayment orders and forfeiture of proceeds commonly form part of the sentence.
Travel and immigration
Convictions involving dishonesty affect admissibility to other countries and status for non citizens.
Employment
Any role involving money, bonding or a criminal record check is affected immediately.
Sentencing depends on the facts, the record of the accused and the position taken by the Crown. Nothing here is a prediction of the outcome of any particular case.
THE DEFENCE

Where fraud prosecutions are challenged

Fraud files are built out of documents. Reading them properly, and reading all of them, is the work.

Intent and honest belief

A genuine belief in an entitlement, an authorised transaction, or a documented arrangement is a complete answer. Many of these cases are commercial disagreements that were reported to police rather than litigated.

Quantum

Loss figures in fraud charges are frequently assembled quickly and inflated. Reducing the quantum below the five thousand dollar threshold changes the charge, the exposure and the range of available outcomes.

Attribution

Where several people had access to an account, a system or a set of signing authorities, connecting the conduct to one individual is a real evidentiary problem for the Crown.

The reliability of the record

Bank records, ledgers and internal audits are prepared by people who can be wrong. Auditors’ conclusions are opinions and they are testable.

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Restitution, where it is possible, is one of the most powerful tools available in a fraud file. Presented early and properly documented, it changes what the Crown is prepared to consider.
HOW THE FILE IS RUN

What happens once you retain

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Disclosure is requested immediately and read in full, including officer notes, audio, video and the continuity of every exhibit.
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Release conditions are reviewed at the outset. Terms that make work, housing or contact with family unworkable can often be varied long before the case ends.
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Legal issues are identified early, while there is still time to build a record for them.
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The Crown is engaged from a prepared position. Resolution is pursued where it serves you, not because it is convenient.
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You are kept informed throughout and you decide how the matter proceeds.
QUESTIONS WE ARE ASKED

Frequently asked questions

This is really a business dispute. Why am I facing criminal charges?
Because a complainant reported it and police found grounds to charge. The distinction between a civil dispute and a criminal fraud lies in intent, and establishing that distinction on the evidence is the core of the defence.
Will paying the money back make the charge go away?
It does not end the charge, but restitution genuinely affects how the Crown approaches resolution and how a court approaches sentence. It is most effective when it is arranged early.
Do I have to tell my professional regulator?
Most regulated professions impose reporting obligations on charges as well as convictions. That question should be addressed at the first meeting, because the timing matters.
Is fraud under five thousand dollars a serious charge?
It is far more manageable. Non conviction outcomes with restitution are realistic on a first allegation, which is why the quantum is worth contesting.
How long do fraud cases take?
Longer than most. Disclosure is voluminous, the review takes time, and forensic accounting evidence may be involved. That delay is sometimes itself a defence issue worth tracking.
SPEAK WITH COUNSEL

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