Dimitriou v R [2025] NSWCCA 18

Dimitriou v R [2025] NSWCCA 18 · Read the judgment on AustLII

Catchwords: Fraud – elements of the offence – specific intent

The Court of Criminal Appeal (‘CCA’) has held that in a prosecution for the offence of Fraud, it is not necessary for the Crown to prove that the accused intended the financial advantage or financial disadvantage or was reckless as to that outcome. The element of deception in this context already requires a causal connection to the outcome, and it is enough if the relevant actions substantially led to that outcome.

The applicant was the director of a financial services company. He caused several false documents to be submitted to a bank in support of a loan application: false tax returns, false contracts for sale of land, and a letter which misrepresented the purpose of the loan. The documents were relied upon by the bank in granting a loan. The matter proceeded by a judge-alone trial for single offence under s 192E(1)(b) (by deception, dishonestly cause a financial disadvantage – more pithily entitled ‘Fraud’ in the Crimes Act), after which the trial judge found the applicant guilty. The applicant appealed both his conviction and his sentence, but this summary only deals with one of the several grounds in the conviction appeal.

At trial, the judge had directed herself that in order for the Crown to prove the offence under s 192E(1)(b), the Crown must prove:

• The accused
• By deception
• Dishonestly caused a financial disadvantage.

On appeal, the applicant advanced what the Court (Mitchelmore JA, Wright J agreeing; Basten AJA agreeing with some additional observations) described as a ‘novel construction’ of s 192E(1)(b) – and one which had not been advanced at first instance. He argued, inter alia, that the trial judge had erred by not directing herself that she needed to be satisfied beyond reasonable doubt that the applicant intended to cause the bank a financial disadvantage, or was reckless as to that outcome. That is, he submitted that s 192E(1)(b) is an offence of specific intent, in which there is an additional element requiring the Crown to establish an intention to cause a financial advantage, or recklessness as to that outcome.

Mitchelmore JA, writing the lead judgment, observed that it is of some significance that no court has construed the offence as including that element. The offence expressly requires that the offence be committed both ‘by deception’ and ‘dishonestly’, with the respective definitions ascribing a different mental element (at [94]). The phrase ‘by deception’ in s 192E(1) requires a causal connection between the deception used, and the relevant effect. It is not necessary that the deception be the sole cause of the outcome, although the Crown must prove that the deception substantially or significantly contributed to that outcome (at [95]-[96]). The requirement of a causal connection between the deception used and the (dishonest) obtaining of a financial advantage or causing of a financial disadvantage tells against the applicant’s submission that there is a further mental element of intention as to the outcome, particularly having regard to the terms of ss 192F and 192G (at [97]). Nor did the legislative history assist the applicant. To the extent that the applicant relied upon a supposed analogue in the Commonwealth Criminal Code, the Court observed obvious textual differences, the most significant of which being that s 192E contains a requirement for deception whereas the asserted Commonwealth analogue offences do not (at [101]-[102]).

In his additional reasons, Basten AJA observed (at [176]) that the indictment presented at trial had contained three elements:

• By deception
• Submitting (or causing to be submitted) a loan application to the bank.
• Knowing that the application contained false information.
• Thereby causing a financial disadvantage to the bank.

The term ‘knowing’ does not actually appear in s 192E(1), but the person who drafted the indictment was not wrong to use that language: Both ‘deception’ and ‘dishonesty’ require knowing falsity or withholding of the truth (at [178]).

The applicant’s asserted requirement for a mental element requiring an intention as to the outcome was redolent of a similar argument that had been made (and rejected) in a different context in Salameh v R [2024] NSWCCA 239 [LINK TO SUMMARY FROM FEBRUARY 2025 CASE NOTES? I KNOW YOU’RE IN A PRINT MONTH…]. Nothing in the High Court authority relied upon (He Kaw Teh v The Queen (1985) 157 CLR 523 at 569-570) demands a requirement of a particular state of knowledge in an accused as to every element of an offence. Moreover, the significance of the point is less important in a case where the consequence achieved was clearly intended (at [182]).

For those and other reasons leave to appeal on this ground was refused. The balance of both the conviction appeal and the sentence appeal were also refused.