7.5.2.1.1 - Obtaining Property By Deception: Bench
Notes1
Overview
1.
It is an offence to obtain property by deception (Crimes Act 1958
s81).
2.
The offence has the following four elements:
3.
i)
The accused obtained property belonging to another;
ii)
The accused did so with the intention of permanently depriving
the other of the property;
iii)
The accused used deceit to obtain the property; and
iv)
The accused obtained the property dishonestly (Crimes Act
1958 s81. See, e.g., R v Salvo [1980] VR 401; R v Jost (2002)
135 A Crim R 202 (Vic CA)).
The law in this area draws heavily upon the civil law of property.
These Bench Notes do not attempt to offer a detailed discussion of
that law.
Relationship With Other Property Offences
4.
5.
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The offences in ss74, 75, 75A, 76, 77 and 81 of the Crimes Act 1958
must all be committed:

“Dishonestly”;

Against or in respect of “property belong to another”; and

With the “intention of permanently depriving” a person of that
property (R v Salvo [1980] VR 401).2
The distinguishing features of s81 are that the accused must have:

“Obtained” the property;

“By deception” (R v Salvo [1980] VR 401).
This document was last updated on 21 October 2013.
In relation to ss76 and 77, these requirements only apply when it is alleged that
the accused intended to steal something.
2
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Obtaining Property Belonging to Another
6.
For the first element to be met, the jury must be satisfied that:

The accused obtained something;

The thing obtained was property; and

The property belonged to another person.
Obtaining
7.
The accused “obtains” property by deception if s/he obtains
ownership, possession or control of it (Crimes Act 1958 s81(2)).
8.
This differs from theft, where the accused must have “appropriated”
the property by adversely assuming any of the owner’s rights (see
Theft: Bench Notes).
9.
The accused does not need to have obtained the property for him or
herself. This element will be satisfied if s/he obtained the property
for another person, or enabled another person to obtain or retain the
property (Crimes Act 1958 s81(2)).
10. Where the accused deceives someone with the intention of obtaining
property, but fails to obtain the property, s/he may be guilty of
attempting to obtain property by deception (R v Kalajdic [2005]
VSCA 160; R v King [1987] QB 547).
Property
11. The thing that the accused obtained must have been “property”
(Crimes Act 1958 s81(1)).
12. “Property” is defined to include “money and all other property real or
personal including things in action and other tangible property”
(Crimes Act 1958 s71(1)).
13. This definition includes some things with no physical existence, such
as debts (R v Lloyd [1985] QB 829).
14. However, other intangible items may not be classified as property.
For example, in England it has been held that confidential
information is not property (Oxford v Moss (1978) 68 Cr App R), and
copyright may not be (R v Lloyd [1985] QB 829).
15. Whether the thing obtained by the accused was “property” can
involve questions of both law and fact. It is for the judge to
determine as a question of law whether a particular circumstance
creates a property right. It is for the jury to determine whether that
circumstance existed as a question of fact (See R v Hall [1973] QB
126; see also R v Baruday [1984] VR 685, Parsons v the Queen
2
(1999) 73 ALJR 270 and cf R v Preddy [1996] AC 815).
16. Sections 73(6) and 7 of the Crimes Act 1958 (concerning when land
and wild animals are considered to be “property”) do not apply to the
offence of obtaining property by deception (R v Salvo [1980] VR
401).
Belonging to Another
17. The accused must have obtained property “belonging to another”
(Crimes Act 1958 s81(1)).
18. Property “belongs” to anyone who has possession or control of it, or
who has any other proprietary right or interest in it (Crimes Act 1958
s71(2); R v Salvo [1980] VR 401).
19. These interests include legal and equitable proprietary interests (R v
Clowes (No 2) [1994] 2 All ER 316).
20. However, property does not “belong” to a person who only has an
equitable interest in that property, if that equitable interest arose
from an agreement to transfer the property or grant an interest in it
(Crimes Act 1958 s71(2)).
21. Whether a person has a proprietary right or interest is a question of
civil property law (R v Walker [1984] Crim LR 112).
22. Sections 73(8)-(11) of the Crimes Act 1958 ss73(8)-(11) (which
deem certain property to “belong to” people who might not otherwise
be regarded as property owners) do not apply to the offence of
obtaining property by deception (R v Salvo [1980] VR 401).
23. The prosecution needs only to establish that someone other than the
accused had the relevant property rights. There is no requirement
that the prosecution prove who actually held those rights (Lodge v
Lawton [1978] VR 112).
Abandoned Property
24. Property no longer “belongs” to a person who has intentionally
relinquished all ownership rights (abandoned the property) (R v
Small [1987] Crim LR 777).
25. However, there is a distinction between “losing” and “abandoning”
property. Property which is merely lost still “belongs” to the owner
and can be obtained by deception (R v Small [1987] Crim LR 777).
Intention to Permanently Deprive
26. The second element requires the accused to have intended to
permanently deprive the owner of the property when s/he obtained it
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(Crimes Act 1958 s81(1); R v Salvo [1980] VR 401).
27. The jury must consider the accused’s state of mind at the time s/he
obtained the property. If the accused had an intention to
permanently deprive the owner of the property at that time then this
element will be satisfied – even if the accused later decided to return
the property (see, e.g., R v Jost (2002) 135 A Crim R 202 (Vic CA)).
28. If the accused only had an intention to temporarily deprive the owner
of his or her property, this element will not be met (subject to the
exceptions specified in ss73(12) and (13)) (R v Lloyd [1985] 1 QB
829).
29. Similarly, this element will not be met if the accused had not decided
how s/he was going to dispose of the property when s/he obtained it
(subject to the exceptions specified in ss73(12) and (13)). S/he must
have already formed the intention to permanently deprive the owner
of the property at the time s/he obtained it (R v Easom [1971] 2 QB
315; Sharp v McCormick [1986] VR 869).
30. A person who takes property (e.g., goods or cash), intending to
return equivalent (but not identical) property, will have an intention
to permanently deprive the owner of the property (because s/he
does not intend to return the exact same coins, notes or goods that
s/he took) (R v Williams [1953] 1 QB 660; R v Cockburn [1968] 1 All
ER 466; R v Pace [1965] 3 Can CC 55 (NSSC)).
Acting Regardless of the Owner’s Rights: ss73(12)-(13)
31. Sections 73(12) and (13) of the Crimes Act 1958 apply (with
necessary adaptations) to the offence of obtaining property by
deception (Crimes Act 1958 s81(3); R v Salvo [1980] VR 401).
32. The accused is deemed to have an intention to permanently deprive
a person of property, despite the fact that s/he did not actually have
that intention when s/he obtained the property, if s/he intends to
treat the property as his or her own to dispose of regardless of the
owner’s rights (Crimes Act 1958 s73(12)).
33. Section 73(12) will only be relevant in exceptional cases. It is apt to
confuse and should only rarely be introduced into a charge (R v
Dardovska [2003] VSCA 4).
34. Circumstances in which s73(12) has been held to be relevant
include:

Where the accused takes the property, promising to return it only
in exchange for payment (R v Lloyd [1985] 1 QB 829);

Where the accused takes the property, intending to return it only
after fundamentally altering its nature (e.g., returning the piece
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of paper a cheque is written on, after receiving payment from the
bank) (R v Duru [1974] 1 WLR 2);

Where the accused takes the property, while leaving open the
possibility that s/he might return it to the owner at a later date,
but in the meantime treats it as his/her own (Sharp v McCormick
[1986] VR 869).
35. Two other circumstances in which s73(12) may be relevant are:

Where the accused borrows the property from its owner,
ultimately intending to return it; or

Where the accused lends the owner’s property to a third party,
intending to return it to the owner upon retrieving it.
36. In such cases, the accused will only be deemed to have an intention
to permanently deprive the owner of the property if the borrowing or
lending was for a period, or in circumstances, which made it
equivalent to an outright taking or disposal (Crimes Act 1958
s73(12)).
37. Section 73(12) may also be relevant where the accused parts with
property belonging to another, under a condition as to its return
which s/he may not be able to perform (e.g., pawning it). If this was
done for the accused’s own purposes, and without the consent of the
owner, the accused will be deemed to have treated the property as
his or her own to dispose of regardless of the owner’s rights (Crimes
Act 1958 s73(13)). By virtue of s73(12), s/he will be regarded as
having had an intention to permanently deprive the owner of that
property.
Deception
38. The third element requires the accused to have obtained the
property by deception (Crimes Act 1958 s81(1); R v Salvo [1980] VR
401).
39. For this element to be met, the prosecution must prove that:

The accused made a representation by words or conduct;

The representation was about existing or past facts or law;

The representation was false;

The accused knew the representation was false, or was reckless
as to whether it was true or false;

The accused intended to obtain the property by making the
representation;
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
The false representation was believed by the victim (who was
thereby deceived); and

The accused obtained the property as a result of the deception.
40. The jury must be unanimous about the particular representation
which the accused made (Magnus v R [2013] VSCA 163; R v Brown
(1984) 79 Cr App R 115; R v Holmes [2006] VSCA 73).
41. As “deception” has the same meaning in relation to the offence of
obtaining a financial advantage by deception as it does for the
offence of obtaining property by deception (Crimes Act 1958 s82(2)),
cases decided in relation to that offence will be applicable to s81.
Representation by Words or Conduct
42. The accused must have made a representation in words (spoken or
written) or by conduct (Crimes Act 1958 s81(4)(a); R v Benli [1998]
2 VR 157).
43. The representation may be constituted by a number of statements or
a course of conduct (R v Lo Presti (2005) 158 A Crim R 54 (Vic CA)).
44. The representation does not need to be explicit. It can be implied
from the accused’s words or conduct (DPP v Ray [1974] AC 370;
Smith v R (1982) 7 A Crim R 437 (Vic CCA); R v Vasic (2005) 11 VR
380).
45. There will often be implicit representations in ordinary transactions.
For example:

When a person orders food in a restaurant, s/he implicitly
agrees to pay for the food if it is provided properly (DPP v Ray
[1974] AC 370).

When a person proffers a cheque to another person in payment
of a debt, s/he implies that ordinarily the cheque will be
honoured by a bank upon presentation at the bank upon which
it has been drawn (Smith v R (1982) 7 A Crim R 437 (Vic CCA);
R v Vasic (2005) 11 VR 380).

When a person uses a credit card, s/he implies that s/he is
acting within the terms of the contract with the card provider (R
v Lambie [1982] AC 449; Metropolitan Police Commissioner v
Charles [1977] AC 177).
Representation About Existing or Past Facts or Law
46. The representation must have been about existing or past facts or
law. This is defined to include representations about a person’s
present intentions (Crimes Act 1958 s81(4)(a); R v Lo Presti (2005)
158 A Crim R 54 (Vic CA)).
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47. This element will not have been met if the representation was about
something that was going to happen in the future (e.g., a promise).
Representations about what will occur in the future cannot amount to
a “fact” (R v Lo Presti (2005) 158 A Crim R 54 (Vic CA)).
48. However, most promises implicitly carry with them a representation
that it is the person’s present intention to bring about the predicted
event. This aspect of the third element will be satisfied if it can be
shown that the accused made such a representation when s/he made
the promise (R v Lo Presti (2005) 158 A Crim R 54 (Vic CA); R v
Dent [1955] 2 QB 590; R v Gilmartin [1983] QB 953).3
49. As it is unlikely that the accused will have explicitly stated that s/he
had an “intention” to do anything, it will usually be left to the jury to
infer that the promise implied that the accused intended to do what
was promised (R v Lo Presti (2005) 158 A Crim R 54 (Vic CA)).
50. The jury must be able to infer, beyond reasonable doubt, that when
the accused made the promise, s/he was stating his or her current
intention to carry out the promise (R v Lo Presti (2005) 158 A Crim R
54 (Vic CA)).
51. Service of an unverified statement of claim is not to be treated as a
positive representation regarding the truth of the facts contained in
the statement (Jamieson v the Queen (1993) 177 CLR 574).
Falsity of the Representation
52. A person only deceives someone if s/he induces them to believe that
something which is actually false is true (DPP v Ray [1974] AC 370;
In re London and Globe Financing Corporation Ltd [1903] 1 Ch 728).
53. The prosecution must therefore demonstrate that the alleged
representation was false at the time it was made (R v Lo Presti
(2005) 158 A Crim R 54 (Vic CA)).
Deception by Silence about Changed Circumstances
54. Difficulties can arise where:

The accused made a representation which was initially true;

That representation subsequently became false; and

The accused knew the representation had become false, but did
not advise the other party prior to obtaining the property (see,
In such cases, the count and the particulars should refer to the accused’s
(implicit) representation about his or her intentions when s/he made the promise,
rather than the promise itself (R v Lo Presti (2005) 158 A Crim R 54 (Vic CA)).
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e.g., DPP v Ray [1974] AC 370).
55. In such circumstances, it may appear that the accused has not made
a false representation. However, it has been held that the accused’s
silence in such circumstances can be considered to be an implicit
(false) representation that the situation remains the same as initially
represented (DPP v Ray [1974] AC 370; R v Firth (1989) 91 Cr App R
217). 4
Broken Promises
56. Where a case is based on a promise made by the accused (see
“Representation About Existing or Past Facts or Law” above), it is not
sufficient for the prosecution to prove that the promise was not
fulfilled. The prosecution must prove that, at the time the
representation was made and acted upon, the accused had no
intention to carry out the promise (R v Lo Presti (2005) 158 A Crim R
54 (Vic CA)).
57. The non-fulfilment of the promise may be used as evidence that,
when s/he made the promise, the accused had no intention to carry
it out (R v Lo Presti (2005) 158 A Crim R 54 (Vic CA)).
58. It is important to instruct the jury clearly about this issue, as without
such instruction the jury may wrongly think that a bare broken
promise, without more, is sufficient (R v Lo Presti (2005) 158 A Crim
R 54 (Vic CA)).
Knowledge or Recklessness as to Falsity
59. The deception must have been deliberate or reckless (Crimes Act
1958 s81(4)(a)).
60. This requires the false representation to have been made:

With knowledge of its falsity; or

Recklessly without an honest belief in its truth, careless of
whether it were true or false (R v Salvo [1980] VR 401;
Mattingley v Tuckwood (1989) 43 A Crim R 11 (ACT SC)).
61. This element will not be satisfied if the accused made an innocent
misrepresentation which misled the victim (R v Salvo [1980] VR 401;
Mattingley v Tuckwood (1989) 43 A Crim R 11 (ACT SC)).
In R v Vasic (2005) 11 VR 380 the court held that it was Parliament’s intention
that the English cases in this area, including DPP v Ray, would be followed in
Victoria.
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8
Reckless Deception
62. In this context, “recklessness” is a subjective concept. It focuses on
the accused’s state of mind at the relevant time (R v Smith (1982) 7
A Crim R 437; Pollard v Cth DPP (1992) 28 NSWLR 659).
63. For the deception to have been reckless, the accused must have
known that the representation was probably untrue (R v Kalajdic
[2005] VSCA 160; R v Campbell [1997] 2 VR 585; R v Nuri [1990]
VR 641).
64. Some authorities have applied a weaker “substantial risk” test. Under
this test, an accused makes a false representation recklessly if he or
she makes a representation knowing that there is a substantial risk
that the representation is untrue (R v Kalajdic [2005] VSCA 160;
Mattingley v Tuckwood (1989) 43 A Crim R 11 (ACT SC); Smith v R
(1982) 7 A Crim R 437 (Vic CCA)).
65. It is likely that the “substantial risk” test understates the mens rea
requirement for this element. It is also inconsistent with the
recklessness test that is now required in more settled areas of the
law – see Bench Notes: Recklessness. As a result the Charge Book
Deception charges adopt only the “probably untrue” test.
66. It is not sufficient that the accused knew that the representation was
possibly untrue (R v Kalajdic [2005] VSCA 160; R v Campbell [1997]
2 VR 585; R v Nuri [1990] VR 641).
67. Mere carelessness or negligence is not sufficient. The accused must
have known that the representation was probably false but been
indifferent as to whether the representation was true or false (Smith
v R (1982) 7 A Crim R 437 (Vic CCA); Mattingley v Tuckwood (1989)
43 A Crim R 11 (ACT SC); Pollard v Cth DPP (1992) 28 NSWLR 659).
Accused’s Intention
68. At the time s/he made the representation, the accused must have
intended to obtain the property by his or her words or conduct (DPP
v Stonehouse [1978] AC 55; Mattingley v Tuckwood (1989) 43 A
Crim R 11 (ACT SC); R v Lo Presti (2005) 158 A Crim R 54 (Vic CA)).
69. In most cases5 this requires the accused, at the time s/he made the
representation, to have intended that:

The representation would be communicated to a person;

That person would believe that the representation was true;
An exception occurs where it is a computer or a machine that is deceived: see
“Deception of Computers and Machines” below.
5
9

That belief would cause someone to part with ownership,
possession or control of property; and

The accused would thereby obtain that property (for him or
herself or someone else) (DPP v Stonehouse [1978] AC 55;
Mattingley v Tuckwood (1989) 43 A Crim R 11 (ACT SC)).
The False Representation was Believed
70. In most cases6 a person or persons must have believed the false
representation, and thus been deceived (DPP v Ray [1974] A.C. 370;
R v Salvo [1980] VR 401).
71. Even where the victim is a company, the prosecution must prove
that a natural person was deceived (R v Jenkins (2002) 6 VR 81. See
“Deception of a Company” below).
72. The person deceived does not need to be the same as the person
from whom the property is ultimately obtained. This element will be
satisfied as long as the accused deceives someone, and that
deception causes the accused to obtain the property (see “The
Property was Obtained as a Result of the Deception” below) (R v
Benli [1998] 2 VR 157; R v Clarkson [1987] VR 962).
Deception of a Company
Proposed section: Topic Not Yet Complete
Deception of Computers and Machines
73. “Deception” is defined to include acts or omissions done with the
intention of causing a computer system, or a machine that is
designed to operate by means of payment or identification, to make
a response which the accused is not authorised to cause the
computer or machine to make (Crimes Act 1958 s81(4)(b)).
74. This provision allows this element to be met even if the accused has
not made a false representation to a person, and no person has been
deceived. As long as the accused intended to cause the computer or
machine to respond in an unauthorised matter s/he will have
engaged in “deception”.
75. Accordingly, the element of deception will be satisfied where a
person:
It is also possible for a computer or a machine to have been deceived: see
“Deception of Computers and Machines” below.
6
10

Uses his or her own card to withdraw money from an ATM,
despite having closed his or her account; or

Uses another person’s card to withdraw money from an ATM
without their authority (see, e.g., Kennison v Daire (1986) 160
CLR 129).
76. The fact that an ATM is programmed to give out money if a card is
inserted and the correct password used does not mean that the bank
consents to the withdrawal of money in that way by a person who
does not have an account with the bank. The bank only consents to
the withdrawal of money by people with current accounts (Kennison
v Daire (1986) 160 CLR 129).
The Property was Obtained as a Result of the Deception
77. The property must have been obtained as a result of the deception.
That is, there must have been a causal connection between the
deception used and the obtaining of the property (R v Jenkins (2002)
6 VR 81; R v Clarkson [1987] VR 962; R v King [1987] QB 547).
78. For this requirement to be met, the prosecution must prove that the
deception operated on the mind of the person deceived (R v Jenkins
(2002) 6 VR 81).
79. It is a question of fact for the jury to decide whether the deception
was an “operative cause” of the obtaining (R v King [1987] QB 547).
80. As long as this causal connection is proved, the property does not
need to have been obtained from the same person who was deceived
(R v Benli [1998] 2 VR 157; R v Clarkson [1987] VR 962; R v Jenkins
(2002) 6 VR 81).
81. It is not necessary to prove that the person deceived suffered a loss
(R v Jenkins (2002) 6 VR 81; R v Kovacs [1974] AC 370).
Proving Causation
82. Direct evidence should ordinarily be used to prove that the deception
operated on the mind of the person deceived (R v Jenkins (2002) 6
VR 81; R v Laverty (1970) 54 Cr App R 495).7
83. However, direct evidence need not be given if the facts are such that
the alleged false representation is the only reason which could be
suggested as having been the operative inducement (R v Jenkins
(2002) 6 VR 81; R v Sullivan (1945) 30 Cr App R 132).
In most cases the person deceived will give evidence that s/he believed the
representation, and that is why s/he parted with the property (R v Sullivan
(1945) 30 Cr App R 132; R v Jenkins (2002) 6 VR 81).
7
11
84. In such circumstances, it is for the jury to determine whether the
only inference which could be reasonably drawn is that the relevant
party would not have parted with the property had the true position
been known, and thus the deception was the cause of the obtaining
(R v Jenkins (2002) 6 VR 81; R v Lambie [1982] AC 449).
Dishonesty
85. The fourth element requires the property to have been obtained
“dishonestly” (Crimes Act 1958 s81(1); R v Salvo [1980] VR 401).
86. This requirement is additional to the requirement that the property
be obtained “by deception”. The prosecution must prove that when
the accused, by deception, obtained the property, s/he was acting
dishonestly (R v Salvo [1980] VR 401; Pollard v Cth DPP (1992) 28
NSWLR 659).
87. Whilst in a loose sense any form of deception might be characterised
as “dishonest”, that is not the meaning which “dishonestly” bears in
s81 (R v Salvo [1980] VR 401; Pollard v Cth DPP (1992) 28 NSWLR
659).
88. Dishonesty has a special meaning in s81. It means that the accused
acted without a belief in a legal right to obtain the property (R v
Salvo [1980] VR 401; R v Bonollo [1981] VR 633; R v Brow [1981]
VR 783; R v Todo (2004) 10 VR 244).
89. This interpretation of “dishonesty” differs from the interpretation of
“dishonesty” in the equivalent provision of the English Theft Act and
the interpretation of “dishonesty” in s86 of the Commonwealth
Crimes Act 1914. In those jurisdictions, “dishonesty” has its ordinary
meaning, and is assessed according to the standards of the ordinary
person (Peters v the Queen (1998) 192 CLR 493; Macleod v R [2003]
HCA 24; R v Ghosh [1982] QB 1053).8
90. The claim of legal right must extend to all of the property taken, not
just to part of it (R v Bedford [2007] SASC 276).
91. A moral belief in the right to obtain the property is not sufficient (R v
Salvo [1980] VR 401; R v Bonollo [1981] VR 633).
92. The relevant belief is not a belief in ownership or in a right to
possession or control. The accused must have believed that s/he had
a legal right to obtain possession of the property. That is, s/he must
have believed that s/he had legal right to take the property and
deprive the other person of possession (R v Salvo [1980] VR 401).
8
Other Australian jurisdictions adopt different approaches to dishonesty, and
their authorities should be approached with caution.
12
93. If the accused did not believe that s/he had a legal right to obtain
the property, then s/he will have acted dishonestly, even if s/he
intended to prevent the true owner from suffering any loss (R v Brow
[1981] VR 783).
Subjective Concept
94. Dishonesty is a subjective concept. It relates to the accused’s mental
state (R v Salvo [1980] VR 401; R v Bonollo [1981] VR 633; R v
Brow [1981] VR 783).
95. The prosecution must prove that the accused himself or herself did
not believe that s/he had, in all the circumstances, a legal right to
obtain the property (R v Salvo [1980] VR 401; R v Bonollo [1981] VR
633; R v Brow [1981] VR 783).
96. It does not matter if the accused’s belief was based on a mistake of
fact9 or a mistake of law10. If the accused genuinely believed s/he
had a legal claim of right, s/he will not have acted dishonestly (R v
Langham (1984) 36 SASR 48; R v Lopatta (1983) 35 SASR 101).
97. The accused’s belief does not need to have been reasonable (R v
Salvo [1980] VR 401; R v Dardovska [2003] VSCA 4).
98. If the jury is left in doubt whether the accused in fact believed that
s/he had a legal right in the circumstances to obtain the property,
the element will not be established (R v Salvo [1980] VR 401).
Exhaustive Definition
99. The word “dishonestly” in s81 is to be defined exclusively as meaning
without belief by the accused that s/he had a legal right to obtain the
property (R v Salvo [1980] VR 401; R v Bonollo [1981] VR 633; R v
Brow [1981] VR 783).
100. As this definition of “dishonestly” is exhaustive, if the accused did not
believe s/he had a legal right to the property, then s/he will have
acted “dishonestly” (R v Brow [1981] VR 783).
101. The provisions of ss73(2) and (3), which state that in certain
circumstances an accused person’s appropriation of property is not to
be regarded as dishonest, do not apply to s81 (R v Salvo [1980] VR
401).
9
A mistaken belief that certain facts existed, which would have created a legal
claim if true.
10
A mistaken belief that certain interests create legal rights.
13
No Need to Believe in Right to Deceive
102. The accused does not need to have believed that s/he had a legal
right to obtain the property by deception, or by the particular means
employed. S/he merely needs to have believed that s/he had a legal
right to obtain the property. The deception was simply his or her
means of achieving that goal (R v Salvo [1980] VR 401; R v Bedford
[2007] SASC 276).
103. So even if the accused used violent measures to take the property,
s/he should not be convicted of obtaining property by deception if
s/he genuinely believed s/he had a legal right to the property.
However, s/he may be convicted of an offence relating to the
violence used (R v Bedford [2007] SASC 276; R v Salvo [1980] VR
401).
104. It will therefore be a misdirection to tell the jury that the prosecution
must prove that the accused believed s/he had a right to take the
property by the deception actually employed. The jury should instead
be directed that the prosecution must prove that the accused did not
believe s/he had a legal right to obtain the property (R v Salvo
[1980] VR 401).
Relationship Between “Dishonesty” and “Deception”
105. There may be cases where property belonging to another has been
obtained by deception, with the intention of permanently depriving
the other of it, but which has not been done dishonestly (R v Salvo
[1980] VR 401; Pollard v Cth DPP (1992) 28 NSWLR 659).11
106. Thus, the mere fact that the accused obtained the property by
deception is not enough to prove that s/he acted dishonestly. The
prosecution must prove that the accused acted without a claim of
legal right (R v Salvo [1980] VR 401).
107. However, in many cases the practising of a deception will be strongly
evidentiary of whether the acts charged were done dishonestly. The
jury may be able to infer from the fact that the accused acted
deceitfully that s/he was not making a claim of right (R v Salvo
[1980] VR 401; Pollard v Cth DPP (1992) 28 NSWLR 659).
108. While in many cases the deception practised will be highly relevant to
the element of dishonesty, this will not always be the case. For
In R v Salvo [1980] VR 401 the court gives the example of a robber who
forcibly detains goods from the true owner. Because the robber has possession or
control of the goods, they are deemed to belong to him by virtue of s71(2). If the
true owner, by a stratagem of deception, obtains the goods from the robber, he
will not have acted dishonestly – as he believes he has a legal claim to the goods
(and in fact does have a legal right to regain the goods by seizure).
11
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example, where the accused admits engaging in deception, but
advances an explanation for why s/he did so, the jury may not be
able to infer anything about the accused’s dishonesty from the fact
that s/he was deceitful (R v Salvo [1980] VR 401).
Need for Jury Directions
109. Due to the difficulty in understanding the relationship between
deception and dishonesty, and the special sense in which
“dishonestly” is used in this context, the judge must explain the
concept of “dishonestly” to the jury (R v Salvo [1980] VR 401; R v
Bonollo [1981] VR 633; R v Todo (2004) 10 VR 244).
110. In such cases, the judge must:

Tell the jury that the prosecution must prove that the property
had been obtained dishonestly, in the sense that the accused
did not believe that s/he had a legal right to it; and

Assist the jury by relating the facts to the law, and the facts and
issues raised by counsel to the actual charges (R v Todo (2004)
10 VR 244).
111. In some cases it may be desirable to point out that the question as
to what constitutes “dishonestly” is not to be answered by
considering the morality of the accused’s actions, but by considering
whether the accused believed that s/he had a legal right to obtain
the relevant property (R v Salvo [1980] VR 401).
Offences Committed by Bodies Corporate
112. The offence of obtaining property by deception may be committed by
a body corporate (Crimes Act 1958 s84).
113. Where an offence committed by a body corporate is proved to have
been committed with the consent or connivance of any director,
manager, secretary or other similar officer of the body corporate, or
any person who was purporting to act in any such capacity, that
person will also be guilty of the offence (Crimes Act 1958 s84(1)).
114. Where the affairs of the body corporate are managed by its
members, the members may also be found guilty of the offence (if
they acted in connection with their management function) (Crimes
Act 1958 s84(2)).
Extraterritorial Offences
115. It is not necessary that the property was obtained in Victoria. Section
81 applies where there is a “real and substantial link” between the
relevant act and Victoria (Crimes Act 1958 s80A).
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116. The concept of a “real and substantial link” is defined in s80A(2). It
includes cases where:

A “significant part” of the conduct relating to, or constituting,
the relevant act occurred in Victoria; or

The act was done with the intention that substantial harmful
effects arise in Victoria, and such effects did arise.
117. The words in s80A should be given their natural meaning (R v Keech
(2002) 5 VR 312).
118. An act which forms an essential link in the chain of deception (rather
than merely being part of the surrounding circumstances) is a
“significant part” of the relevant conduct (R v Keech (2002) 5 VR
312).
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