Obtaining by deception (Section 240(1)(d) Crimes Act 1961)

Charge 1: Causing loss by deception (false representation) under section 240(1)(d) of the Crimes Act 1961

The Crown must prove each element of the offence. That is called the burden of proof. The Crown carries that burden. Also, the Crown must prove each element beyond reasonable doubt. That is called the standard of proof. It means you must be sure that each element is proved.

1.	Are you sure that Mr Smith made a materially false representation to Ms Jones when he told her to invest in Capital Ltd because it had a good balance sheet?
	“Material” means relevant to Mr Jones’ decision to invest in Capital Ltd. If no, find Mr Smith not guilty. If yes, go to question two.
2.	Are you sure that Mr Smith knew the representation was false or was reckless as to whether it was false?
	“Reckless” means that Mr Smith recognised there was a real possibility that the representation was false and that, having regard to that possibility, Mr Smith’s actions in making the representation were unreasonable. “Unreasonable” actions are actions that a reasonable and prudent person would not have taken. If no, find Mr Smith not guilty. If yes, go to question three.
3.	Are you sure that, when Mr Smith made the false representation to Ms Jones, Mr Smith intended to deceive Ms Jones?
	If no, find Mr Smith not guilty. If yes, go to question four.
4.	Are you sure that Mr Smith’s false representation caused Ms Jones to invest $50,000 into the failed Capital Ltd investment scheme?
	If no, find Mr Smith not guilty. If yes, go to question five.
5.	Are you sure that, when Mr Smith made the false representation to Ms Jones, some loss to Ms Jones was likely to occur?
	“Loss” means loss that arises from the representation and is more than trivial. The issue is not whether Mr Smith thought loss was likely, but whether you as a jury think loss was likely. If no, find Mr Smith not guilty. If yes, go to question six.
6.	Are you sure that Mr Smith caused loss to Ms Jones without claim of right?
	[Note: Although this element has to be put to the jury, it is unlikely that it will be an issue as claim of right is defined by reference to a right in property, but here no property has been obtained.] “Claim of right” means Mr Smith had a genuine belief that, at the time of making the false representation, he had a lawful right to the investment capital. If no, find Mr Smith not guilty. If yes, find Mr Smith guilty.