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Chapter 27: False Pretences

Table Of Contents 

[27.0] Introduction 

This chapter will examine the offence of 'False Pretences', as provided for by section 308(a) of the Penal Code (Ch. 26). 

When interpreting any section of the Penal Code (Ch. 26), section 3 must be considered. That section states: 

'This Code shall be interpreted in accordance with the Interpretation and General Provisions Act and the principles of legal interpretation obtaining in England, and expressions used in it shall be presumed, so far as is consistent with their context, and except as may be otherwise expressly provided, to be used with the meaning attaching to them in English criminal law and shall be construed in accordance therewith.' (emphasis added) 

In that regard reference should be made to the Larceny Act 1916 (UK). 

Section 172 of the Criminal Procedure Code (Ch. 7) states: 

'When a person is charged with obtaining anything capable of being stolen by false pretences with intent to defraud, and it is proved that he stole the thing, he may be convicted of the offence of stealing although he was not charged with it.' 

In R v Harden (1961) 46 CrAppR 90 it was held per Widgery J at page 96: 

'It appears from ELLIS [1899] 1 QB 230, that the gist of the offence of obtaining by false pretences lies in the act of obtaining, and that if this act is done within the jurisdiction it matters not that the false pretence was made abroad.'

[27.1] Offences 

Section 308(a) of the Penal Code (Ch. 26) states: 

'Any person who by any false pretence – 

(a)                with intent to defraud, obtains from any other person any chattel, money or valuable security, or causes or procures any money to be paid, or any chattel or valuable security to be delivered to himself or to any other person for the use or benefit or on account of himself or any other person; 

[…] 

is guilty of a misdemeanour, and shall be liable to imprisonment for five years.'

[27.2] Wording Of Charges 

'[Name of Defendant] at [Place] on [Date] by a false pretence to wit [specify the false pretence] with intent to defraud did 

·                     obtain from a person namely [specify the name of this person] [a sum of money to wit (specify the amount of money) or a (chattel or valuable security) to wit a [specify the (chattel or valuable security)]; or 

·                     [cause or procure] [a sum of money to wit (specify the amount of money) to be paid or a (chattel or valuable security) to wit a [specify the (chattel or valuable security)] to be delivered to [(himself/herself) or a person namely (specify the name of this person)] [for the (use or benefit) or on account] of [(himself/herself) or a person namely (specify the name of this person)].' 

Section 120 of the Criminal Procedure Code (Ch. 7) states (in part): 

'The following provisions shall apply to all charges and information and, notwithstanding any rule of law or practice, a charge or information shall, subject to the provisions of this Code, not be open to objection in respect of its form or contents if it is framed in accordance with the provisions of this Code – 

[…] 

(c)(i) the description of property in a charge or information shall be in ordinary language, and such as to indicate with reasonable clearness the property referred to, and, if the property is so described, it shall not be necessary (except when required for the purpose of describing an offence depending on any special ownership of property or special value of property) to name the person to whom the property belongs or the value of the property; 

[…] 

(iv) coin and bank notes may be described as money; and any allegation as to money, so far as regards the description of the property, shall be sustained by proof of any amount of coin or of any bank or currency note (although the particular species of coin of which such amount was composed or the particular nature of the bank or currency note, shall not be provided); and in cases of stealing, embezzling and defrauding by false pretences, by proof that the accused person dishonestly appropriated or obtained any coin or any bank or currency note, or any portion of the value thereof, although such coin or bank or currency note may have been delivered to him in order that some part of the value thereof should be returned to the party delivering the same or to any other person and such part shall have been returned accordingly;' (emphasis added) [words in brackets added] 

(d) the description or designation in a charge or information of the accused person, or of any other person to whom reference is made therein, shall be such as is reasonably sufficient to identify him, without necessarily stating his correct name, or his abode, style, degree, or occupation; and if, owing to the name of the person not being known, or for any other reason, it is impracticable to give such a description or designation, such description or designation shall be given as is reasonably practicable in the circumstances, or such person may be described as "a person unknown".' (emphasis added) [words in brackets added] 

It is not necessary in respect of a charge of 'False Pretences' to specify the name of the owner of the property. 

The 'false pretence' however must be specified in the charge, see R v Thomas (1931) 23 CrAppR 21.

[27.3] Elements 

A. Defendant 

B. Place 

C. Date 

D. False Pretence 

E. Intent To Defraud 

F. Obtain From A Person 

G.        [i] Sum Of Money; 

[ii] Chattel; or 

[iii] Valuable Security 

Or 

A. Defendant 

B. Place 

C. Date 

D. False Pretence 

E. Intent To Defraud 

F.         [i] Cause; or

[ii] Procure 

G.        [i] Sum Of Money To Be Paid; or 

[ii]        [1] Chattel; or 

[2] Valuable Security 

To Be Delivered 

H.        [i] To Himself/Herself; or 

[ii] To Another Person 

I.          [i] For The Use Of; 

[ii] For The Benefit Of; or 

[iii] On Account Of 

J.          [i] Himself/Herself; or 

[ii] Another Person

[27.4] Dates Of Offences 

A 'false pretence' is a continuing offence if it is operating on the mind of the complainant at the time the property was obtained, see R v Moreton [1911- 13] AllER Rep 699; (1913) 8 CrAppR 214. 

It is not necessary to particularise to whom the alleged false pretence was made, see R v Johnstone (1950) 34 CrAppR 107 at page 108.

[27.5] False Pretences 

Section 307 of the Penal Code (Ch. 26) states: 

'Any representation made by words, writing or conduct, of a matter of fact, either past or present, which representation is false in fact, and which the person making it knows to be false, or does not believe to be true, is a false pretence.' 

In R v Maytum – White (1957) 42 CrAppR 165 Lord Goddard CJ, delivering the judgment of the Court, held at page 168: 

'If a man gives a post-dated cheque, it means that the cheque will be paid on the date on which the cheque is presented, though it does not mean that the drawer has immediately got the money in the bank. The only point in the case is that by giving a cheque on Williams Deacons Bank, Old Brompton Road S.W.7., he was representing that he was a customer of that bank. That is what he represented, and he was not. In other words, the false pretence laid in the indictment was proved.' 

In Albert Alexander Age v The State [1979] PNGLR 589 the Supreme Court examined a case in which the defendant assisted a friend to obtain a loan for a motor vehicle. 

At page 591 the Court stated: 

'The loan application form in the instant case was made out by the appellant and signed by him. Under the heading "purpose" he, in filling in the form, inserted the words "assist purchase new Datsun utility". And it was indicated on the reverse side of the form that part of the purchase monies would be provided by the trade – in for K1900 of a vehicle then owned by Patu. Now all this was untrue. The loan was not required for Patu's purposes. Patu did not intend to purchase a new Datsun utility and did not intend to trade – in a vehicle he already owned. He did not intend to use the loan monies himself. Indeed he signed a cheque "to cash", to enable the appellant to pay those monies into his (the appellant's) account.

[…] This was not the case of a promise to do something in the future or a representation by the representor as to the existence of an intention to do something in the future. It was a representation as to the alleged existing facts, viz. that Patu desired to purchase another vehicle that he was making an application on his own behalf for loan monies, and that part of the purchase price was to be in the form of a trade – in. Those representations we consider to be representations as to material existing facts – representations which were false.' (emphasis added) 

The false representation must relate to a matter of fact, either past or present, but not in the future, see R v Dent [1955] 2 AllER 806; Albert Alexander Age v The State [1979] PNGLR 589 & Green v R (1949) 79 CLR 353. 

The prosecution must prove that the complainant parted with the property as a result of the representation acting on his/her mind, see R v Laverty [1970] 3 AllER 432; (1970) 54 CrAppR 495. 

In R v Ball (1951) 35 CrAppR 24 Lord Goddard CJ, delivering the judgment of the Court, stated at page 27: 

'The statute [, referring to the Larceny Act 1916 (UK),] does not make it necessary to allege that the prisoner obtained the property from the owner; the words "obtains from any other person", and that would include a person who had authority to pass the property.' (emphasis added) [words in brackets added] 

All documents necessary to prove the 'false pretence' should be tendered by the prosecution, see R v Thomas (1931) 23 CrAppR 36. 

Refer also to the law relating to 'Missing Exhibits' which is examined on page 238. 

See also: Panjuboe v Director of Public Prosecutions [1985 – 86] SILR 122; R v John Flyn (Unrep. Criminal Case No. 19 of 1997; Muria CJ); R v Potter & another (1958) 42 CrAppR 168; R v Jones (1910) 4 CrAppR 17 at page 18; Police v Carrandine (1996) 66 SASR 584 & R v Devine (1986) 25 ACrimR 7.

[27.6] Intent To Defraud 

'It is elementary that, to constitute the commission of the offence with which the appellant was charged [, ie., false pretences,] intent to defraud must be shewn', see R v Seccombe (1917) 12 CrAppR 275 at page 276. [words in brackets added] 

See also: R v Bentone (1918) 13 CrAppR 145 at page 150; R v Weeks (1928) 20 CrAppR 188 at page 190; R v Baker (1923) 17 CrAppR 190 at page 191; R v Marck (1928) 21 CrAppR 65 & R v Smith (1931) 22 CrAppR 180. 

Intention, which is a state of mind, can never be proved as a fact, it can only be inferred from other facts which are proved, see Sinnasamy Selvanayagam v R [1951] AC 83 at page 87, if there are no admissions. 

In R v Sullivan (1945) 30 CrAppR 132 Humphreys J, delivering the judgment of the Court, stated at pages 134 – 136: 

'In order that a person may be convicted of that offence [ie., 'false pretences'] it has been said hundreds of times that it is necessary for the prosecution to prove to the satisfaction of the jury that there was some misstatement which in law amounts to a pretence, that is, a misstatement as to an existing fact made by the accused person; that it was false and false to his knowledge; that it acted upon the mind of the person who parted with the money, and that the proceeding on the part of the accused person was fraudulent. That is the only meaning to be applied to the words "with intent to defraud". […] 

It is, we think, undoubtedly good law that the question of inducement acting upon the mind of the person who may be described as the prosecutor is not a matter which can only be proved by the direct evidence of the witness. It can be, and very often is, proved by the witness being asked some question which brings the answer "I believed that statement and that is why I parted with my money"; but it is not necessary that there should be that question and answer if the facts are such that it is patent that there was only one reason which anybody could suggest for the person alleged to been defrauded parting with his money, and that is the false pretence, if it was a false pretence.' (emphasis added) [words in brackets added]

In R v Kritz (1949) 33 CrAppR 169 Lord Goddard CJ, delivering the judgment of the Court, stated at pages 173 – 174: 

'This Court desires to lay down in the clearest possible terms that they approve of the judgment of Channell J in CARPENTER (1911) 22 CoxCC 618, at p.624. This is the locus classius on this point. […] The learned Judge said this: "If the defendant made statements of fact which he knew to be untrue, and made them for the purpose of inducing persons to deposit with him money which he knew they would not deposit but for their belief in the truth of his statements, and if he was intending to use the money so obtained for purposes different from those for which he knew the depositors understood from his statements that he intended to use it, them gentlemen, we have the intent to defraud, although he may have intended to repay the money if he could, and although he may have honestly believed, and may even have had good reason to believe, that he would be able to repay it. You see it is the fraud in the mode of getting the money, because you may by fraud get hold of money, even if you mean to repay it, and thoroughly believe that you can repay it – you are still defrauding the depositor." Now mark the next passage: "You are not defrauding him out of the money if you eventually do repay it, but you are defrauding the man because you are giving him something different from what he thinks he is getting, and you are getting his money by your false statement. In such a case as that the false statement would not be honestly made, and this question as to the intent to defraud substantially comes to this: whether or not the statements were honestly made."' (emphasis added) 

In Toritelia v R [1987] SILR 4 White P stated at page 12: 

'[T]he question of fact to be determined on all the relevant evidence is whether the prosecution has proved beyond reasonable doubt that the accused did prejudice or take the risk of prejudicing another's right, knowing that he had no right to do so. Throughout the cases the statement of proof of that knowledge is commonly described as proving the accused's "dishonesty".' 

In other words, did the defendant act dishonestly?, see R v Faith Osifelo (Unrep. Criminal Case No. 36 of 1992; Palmer J; at page 5. 

Prima facie there is an intent to fraud where money is obtained by false pretences, see R v Porter (1935) 25 CrAppR 59 at page 62.

[27.7] Obtain 

The term 'Obtain' is not defined in the Penal Code (Ch. 26) or the Interpretation & General Provisions Act (Ch. 85). 

"Obtained" means obtaining the property and not merely the possession of the property, see R v Lurie (1951) 35 CrAppR 113; [1951] 2 AllER 704; R v Ball (1951) 35 CrAppR 24; [1951] WN 130; R v Smith & others (1951) 34 CrAppR 168; [1951] 1 KB 53 & R v Stones (1968) 52 CrAppR 36. 

The prosecution must prove that the complainant was induced to lose both ownership and possession of the property to the defendant, see R v Beck [1980] QdR 123. 

In R v Marston (1918) 13 CrAppR 203 Darling J stated at page 204: 

'In our judgment, to upheld a conviction of obtaining goods or money by false pretences it is not necessary that the accused should have had manual possession of the goods or money in question. It is sufficient if they are under his control.'

[27.8] Chattel 

The term 'Chattel' is not defined in the Penal Code (Ch. 26) or the Interpretation & General Provisions Act (Ch. 85). 

The 'natural and ordinary' meaning of that term in the context of this section would mean 'moveable possessions'.

[27.9] Money 

The term 'Money' is defined in section 4 of the Penal Code (Ch. 26) as including: 

'bank notes, bank drafts, cheques and any other orders, warrants or requests for the payment of money.' 

As regards the wording of charges which involve 'money' refer to section 120(c)(iv) of the Criminal Procedure Code (Ch. 7).

[27.10] Valuable Security 

The term 'Valuable Security' is defined in section 4 of the Penal Code (Ch. 26) as including: 

'any writing entitling or evidencing the title of any person to any share or interest in any public stock, annuity, fund or debt of any part of Her Majesty's dominions, or any territory which is under Her Majesty's protection or in respect of which a mandate has been accepted by Her Majesty, or of any foreign state, or in any stock, annuity, fund or debt of any body corporate, company or society, whether within or without Her Majesty's dominions, or any territory which is under Her Majesty's protection or in respect of which a trusteeship has been accepted by Her Majesty, or to any deposit in any bank, and also includes any scrip, debenture, bill, note, warrant, order or other security for the payment of money, or any authority or request for the payment of money or for the delivery or transfer of goods or chattels, or any accountable receipt, release or discharge, or any receipt or other instrument evidencing the payment of money, or the delivery of any chattel personal, and any document of title to lands or goods.'

[27.11] Attempts 

The law relating to 'Attempts To Commit Offences' is examined commencing on page 398.

[27.12] Similar Fact Or Propensity Evidence 

In R v Simmonds (1909) 2 CrAppR 303 Walton J held at page 304: 

'Speaking generally, evidence cannot be given against an accused person of the commission of other offences; but where the gist of the offence alleged is fraud, the question of intent becomes material, and it has been decided that evidence of other similar offences for the purpose of shewing intent is admissible.' 

In R v Ellis (1910) 5 CrAppR 41 [[1910] 2 KB 746] Bray J, delivering the judgment of the Court, stated at pages 58 – 59: 

'In our opinion the law on this subject is laid down with perfect accuracy by Channell J in Rex v Fisher (1910) 1 KB [(1909) 3 CrAppR 176 at page 179]. He says, giving the judgment of the Court of Criminal Appeal […]: 

"In other words, whenever it can be shewn that the case involves a question as to there having been some mistake or as to the existence of a system of fraud, it is open to the prosecution to give evidence of other instances of the same kind of transaction, notwithstanding that the evidence goes to prove the commission of other offences, in order to negative the suggestion of mistake or in order to shew the existence of a systematic course of fraud."' 

See also: R v Deller (1952) 36 CrAppR 184; R v Skinner (1920) 15 CrAppR 114; R v West (1916) 12 CrAppR 145 & R v Hurren (1962) 46 CrAppR 323. 

The law relating to 'Similar Fact Or Propensity Evidence' is also examined commencing on page 188.

[27.13] Jurisdiction 

The jurisdiction of the Courts in respect of the offence of 'False Pretences' is examined commencing on page 14. 

The law relating to 'Sentencing' in respect of that offence is examined commencing on page 918.

[27.14] Compared To Larceny 

In R v Caslin (1960) 44 CrAppR 47 [[1961] 1 AllER 246; [1961] 1 WLR 59] Lord Parker CJ, delivering the judgment of the Court, stated at page 53: 

'The first question which arises is whether she was properly charged with larceny by a trick or whether this was a case of obtaining money by false pretences. The distinction between the two is a very fine one and, […] the distinction is often largely academic. The authorities on subject are numerous, and the result in each case must depend upon the exact facts and the true inferences to be drawn therefrom. The guiding test in each case is whether the person whose money is obtained meant to part with the property in the money, in which case it would, if the representation was false and as to an existing fact be false pretences, or whether he meant only to part with possession, in which case, whether the false representation was to an existing fact or as to the future, it would be a case of larceny by trick.' 

Simply the distinction between the offences of 'Larceny' and 'False Pretences' is that in respect of the offence of 'Larceny' the complainant loses possession, but not ownership; whereas in respect of the offence of 'False Pretences' the complainant loses both possession and ownership. As a consequence of a 'fraud' the owner of the property gives the defendant ownership of the property in question by consent. 

The offence of 'Larceny' is examined commencing on page 460. 

See also: Tom Amaiu v The State [1979] PNGLR 576 at page 580.

[27.13] Related Offences 

The following offences are related to the offence of 'False Pretences' as provided for in the Penal Code (Ch. 26): 

·                     'Obtaining Credit By False Pretences', section 309 of the Penal Code (Ch. 26) which is examined commencing on page 544; 

·                     'Pretending To Tell Fortunes', section 310 of the Penal Code (Ch. 26); 

·                     'Obtaining Registration, etc., By False Pretences', section 311 of the Penal Code (Ch. 26); and 

·                     'False Declaration For Passport', section 312 of the Penal Code (Ch. 26).