MODEL CRIMINAL CODE CHAPTER 3 THEFT, FRAUD, BRIBERY AND RELATED OFFENCES Report December 1995 MODEL CRIMINAL CODE These are the final views of the Model Criminal OFFICERS Code Officers Committee. They do not represent COMMITTEE OF THE the views of the Standing Committee of STANDING COMMITTEE OF Attorneys-General ATTORNEYS-GENERAL MODEL CRIMINAL CODE CHAPTER 3 THEFT, FRAUD, BRIBERY AND RELATED OFFENCES REPORT Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General December 1995 This report contains the views of the Model Criminal Code Officers Committee. It does not represent the views of the Standing Committee of Attorneys-General ISBN 0 642 20848 4 PREFACE Background On 28 June 1990, the Standing Committee of Attorneys-General (SCAG) placed the question of the development of uniform criminal codes for Australian jurisdictions on its agenda. That decision flowed from a request of the Northern Territory Attorney-General and took into account that most jurisdictions were either undertaking, or about to undertake, major reviews of their respective criminal laws. In order to advance the concept, SCAG established a Committee - originally known as the Criminal Law Officers Committee (CLOC) - which consisted of one or more officers from each jurisdiction who had special responsibility for advising his or her Attorney-General on criminal law issues. In November 1993, SCAG changed the name of the Committee to the Model Criminal Code Officers Committee (MCCOC) in order to communicate the Committee’s primary role more clearly. The first formal meeting of the Committee took place in May 1991, when it was decided that priority should be given to principles of criminal responsibility which were seen as the very foundations of any system of criminal justice. The Committee delivered a Discussion Draft of a proposed Chapter of a Model Criminal Code dealing with General Principles of Criminal Responsibility to SCAG in July 1992 and it was circulated for comment. Fifty-two written submissions were received in response to that Discussion Draft. In addition to these submissions, the Final Report reflects the substance of many meetings with criminal law experts and detailed comments from delegates to the Fourth International Criminal Law Congress held in Auckland in September 1992. SCAG approved the release of the Report on General Principles of Criminal Responsibility and the accompanying Draft Bill for public comment at its February 1993 meeting. The following jurisdictions have endorsed the Report on General Principles of Criminal Responsibility, except for the intoxication rule: ACT, Commonwealth, New South Wales, Queensland, Tasmania, Western Australia (WA have reserved on some issues) and the Northern Territory. SCAG has decided that the case DPP v Majewski [1977] AC 480 provides a better basis for the Model Criminal Code than O’Connor’s case (1980) 146 CLR 64. SCAG has requested preparation of a provision to give effect to this decision. This has been done. The Commonwealth has enacted the Chapter in the Criminal Code Act 1995. Theft, fraud, bribery and related offences The excesses of the 1980s have focussed a great deal of attention on the prosecution of fraud offences in Australia. Corruption in the public sector has also found focus in the FitzGerald Report in Queensland and WA Inc in Western Australia. i That focus finds the substantive law in areas such as theft, fraud, secret commissions and bribery fragmented and complex. The nine jurisdictions operate under nine sets of laws which adopt fundamentally different criteria. Despite the fact that large fraud cases or sophisticated rings trafficking in stolen car parts operate across the country, police interviewing suspects in Brisbane will have to consider a different range of offences and definitions from their counterparts in New South Wales and Victoria. Even the definitions of the basic theft offence are each fundamentally different from one another. Those differences necessitate different questions to establish liability. Where prosecutions are to ensue in those other jurisdictions, detectives from Melbourne, for example, will have to fly to Brisbane and do an entirely different interview based on the elements of the Victorian offences. For some of the offences, even the basic rules about criminal responsibility will be different in Victoria from those which will apply when the case comes to trial in Queensland. Each state will require different sets of prosecution and defence lawyers in each jurisdiction, thus adding to expense and working against moves to facilitate national legal practices and uniform evidence laws. The technical and complex nature of theft and fraud law compounds these problems, especially in the six jurisdictions which retain the common law or the Griffiths Code variations on the common law. Inexperienced police officers can be confronted with a choice between a myriad of specific theft or fraud type offences cobbled together over the years to plug gaps in the pre-existing law. For example, the New South Wales Crimes Act contains a multitude of offences relating to fraud and theft. Often the choices involve excessively technical distinctions about which offence is the correct one to choose. These choices can dog the case from the charge decision, to committal, to drawing the indictment, to the judge’s charge to the jury, to the jury’s decision over which charge, if any, to convict on. This complexity adds a layer of difficulty to cases - particularly fraud and forgery cases - which are already complicated by technical evidence, large quantities of documentary evidence, and outmoded rules of evidence and procedure. The Standing Committee of Attorneys-General has separate projects running on uniform evidence law (now passed in the Commonwealth and New South Wales) and the simplification of evidence and procedure in complex fraud cases. The current fragmentation and complexity of the substantive law threatens the success of these initiatives. But the case for consistency does not rest solely on grounds of efficiency. Whether a person gets convicted of theft, forgery or bribery or a related offence should not depend on those offences having different elements on one side of the River Tweed from the other. Justice and efficiency demand consistent if not uniform offence provisions. In September 1992, a special SCAG meeting on complex fraud cases requested MCCOC to give priority to fraud as the first substantive offence chapter of the Model Criminal Code. This request was based in part on recommendation 8 of the National Crime Authority’s Conference on White Collar Crime held in Melbourne in June 1992: That the various State laws and codes be revised so as to provide uniform fraud legislation as a mechanism for consistency for investigation and presentation of evidence in all Australian jurisdictions. The Standing Committee had in mind the revision of the various substantive fraud offences into a uniform fraud code as part of its reform agenda on the related issues of criminal procedure and laws of evidence applicable to serious and complex fraud. These evidentiary and procedural reforms are being addressed by the various jurisdictions. At an early stage of its deliberations on this topic, MCCOC decided that it would be impossible to deal with fraud in isolation from theft and related offences such as blackmail, forgery, bribery and secret commissions. All these offences involve dishonest acquisition of money or property and may generally be termed property offences. Modern codification projects in this area of the law - notably the Theft Act 1968 (UK), and the theft laws of Victoria and the Australian Capital Territory, which were based on the Theft Act - deal with most of these offences as a package. MCCOC has extended the Theft Act model to include the offences of forgery, bribery and secret commissions in that package. The relationship between the various offences is such that they cannot sensibly be dealt with in isolation from one another. The Theft Act model enables the application of similar concepts across the various offences to produce a logically consistent Code. MCCOC divided the offences into two groups to facilitate the consultation process. The first Discussion Paper (issued in December 1993) dealt with theft, fraud and aggravated forms of theft (robbery and burglary). The Committee argued that the first Discussion Paper provided the basis for reaching a national agreement on a very complex area of the law. More than most offences, fraud knows no jurisdictional boundaries and, in view of what has come to be termed “the excesses of the 80s”, the need for a uniform and principled approach to the problems of fraud and these related offences has never been greater. The vast majority of the submissions endorsed the adoption of the Theft Act model and the goal of uniformity in this area of the law. The second Discussion Paper (issued in July 1994) dealt with the related offences of blackmail, forgery, bribery and secret commissions. The Theft Act model included blackmail but the other offences are very much in need of modernisation. They also vary considerably between the jurisdictions. All of the offences have been codified employing concepts from the Theft Act model but with little alteration to their substance. The major exception in relation to the substance of the offences is the extension of bribery to include bribes offered in the private sector, a reflection of the increasingly blurred and artificial nature of the public/private distinction as a result of privatisation of government functions. More modestly, the forgery offences have been updated to reflect modern technology - innovations such as the computer and high quality photocopiers. In drafting the criminal responsibility chapter of the Model Code, MCCOC attempted to make the document comprehensive and yet concise and capable of being understood not only by legal practitioners but also by the general public. MCCOC felt that a Code which could only be interpreted by lawyers would fail a basic test of acceptability.