NSW RTA - The Correct Interpretation of Crimes Act?

Discussion in 'Criminal Law Forum' started by Scruff, 25 July 2018.

  1. Scruff

    Scruff Well-Known Member

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    Hi all, newbie here, so I hope I'm in the right place. My question relates to s307c of the NSW Crimes Act:

    307C False or misleading documents
    (1) A person is guilty of an offence if:
    (a) the person produces a document to another person, and
    (b) the person does so knowing that the document is false or misleading, and
    (c) the document is produced in compliance or purported compliance with a law of the State.​

    My question is, what exactly does "compliance or purported compliance with a law of the State" mean?

    Using the NSW Residential Tenancies Act (the "RTA") as an example, there several ways to look at it:

    1. The RTA allows for one party to issue a Notice of Termination to the other party. This can be done for breaching the agreement under various sections of the RTA. Therefore, when such a notice is issued, it is done so in compliance with the RTA because the RTA applies to all residential tenancy agreements.

    (Compliance is based on legislation enabling the issuing of the document for a specific purpose under that legislation.)

    2. Another way to look at it, is that the RTA requires that a Notice of Termination must contain certain information; for example

    the section of the RTA that the breach relates to, and
    the date by which the tenant is required to give vacation possession.
    Therefore, if the document contains the mandatory information as required by the RTA, then it has been issued in compliance with the RTA.

    (Compliance is based on legislation requiring that the document contain mandatory information.)

    3. The final example relates to Condition Reports. The RTA requires that two copies of the Condition Report are to be given to the tenant at the start of the tenancy. The tenant is then required to complete the report and give one copy back to the landlord. Because the RTA requires this for all new agreements, the documents are produced in compliance with a law of the State.

    (Compliance is based on legislation requiring that the document be issued in all cases.)

    Which is the correct interpretaion for the purpose of s307c of the Crimes Act, or are all of them correct?
     
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  2. Scruff

    Scruff Well-Known Member

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    Who changed the title and tags?

    "Crimes Act 1914"? - the NSW Crimes Act is 1900.

    The info relating to the RTA is only provided as examples - the question is about 307c of the NSW Crimes Act - not the RTA.

    No wonder no-one is responding.
     
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  3. Precedent2

    Precedent2 Active Member

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    All of them are correct. A charge under section 307C of the Crimes Act is essentially an allegation against the defendant usurping (in this RTA scenario) the RTA instrument for the purposes of producing a false or misleading document which the person knows to be same.

    I intentionally use the word 'usurp' as the word 'authority' is contained in the other two sections of Part 5A False and Misleading Information -- in intending the document to have "authority".
     
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  4. Scruff

    Scruff Well-Known Member

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    Thanks for the reponse. I actually had to look up "usurp" - never heard that one before. o_O
    So for the examples given, usurp basically means "encroach or infringe upon another persons rights". Hmmm - learn something new every day.

    So for Part 5A (which contains 307A, B & C), wherever compliance is a factor, there is no single rule or interpretation to apply - it's simply a case by case thing, pretty much based on an intent to deceive and whether or not there is any form of compliance or purported compliance involved in the deception. Would that be a fair assessment?
     
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  5. Precedent2

    Precedent2 Active Member

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    Rights in this context is perhaps not the best usage, but certainly supplant authority.

    That would be my interpretation, because obviously you’re looking at the object of the section.
     
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  6. Scruff

    Scruff Well-Known Member

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    Got it, thanks for that.

    How well do you know the ACL? I'm also trying to find out if there is anything more specific than s18 or s21 that deals with over charging or undisclosed charges, but I can't seem to find anything using that terminology.

    At the moment I've got s18 (Misleading and deceptive conduct) or s21 (Unconscionable conduct) if the conduct constitutes a criminal offence (in other words, there's criminal intent, which is usually the case for undisclosed charges).

    Do you know of anything more specific?
     
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  7. TKC

    TKC Well-Known Member

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    Undisclosed charges would come under the definition of 'unjust contracts' also, so you might like to have a look at the Contracts Review Act, which incidentally has at s 18 a very similar offence to s 307C raised by you as above, however s 21 of the ACL is a very broad application and would be the first choice of most lawyers, although it does not discuss criminality. Nevertheless, unconscionable conduct can be of such severity that it might be criminal in nature, but that's a separate discussion.
     
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  8. Scruff

    Scruff Well-Known Member

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    Thanks for the tip on the Contracts Review Act - I'll check that out.

    With the undisclosed charges, the matter that I'm looking at involves a charge that has been calculated seperately and then added to an existing charge to conceal it's existence. Since it has been conclusively determined how the charges were calculated, it is also conclusive that the conduct constitutes fraud under state law because of a clear intent to deceive, which is why I'm looking at s21 rather than s18 in this particular case - criminal intent is easily proven.

    Normally with over charging, it's difficult to prove if it's intentional, reckless, or an accident, thus you'd be better attacking it under s18 rather than s21.
    Penalties are same anyway. ;)
     
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  9. Precedent2

    Precedent2 Active Member

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    First of all, in order to form a conclusive determination, the court will apply an objective test to the alleged conduct, regardless whether it is "criminal" in the sense of intentional or careless.

    Depending in which jurisdiction such an action would be started, and since this sounds like a private matter it would be civil, you would not be required proving the "mental element" of the allegation, all you would need to do is set out the facts of your case. Whereupon the court would apply an objective test to determine if it was misleading and deceptive conduct under s 18, or unconscionable conduct under s 21.

    In fact, you could bring both provisions, but s 18 relates more to misrepresentation than actual fraud, although I appreciate there is only a subtle difference, however there is nothing under s 21 which states that you must prove the "mental element" so there is no difficulty in applying those provisions.

    S 21 is the better approach because the court can have regard and apply its test 'to a system of conduct or pattern of behaviour', which depending on the evidence you bring can initiate proceedings in the criminal jurisdiction.
     
  10. Scruff

    Scruff Well-Known Member

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    Thanks for the input. You've actually touched on something else that I've been wondering about as well...

    When you have a civil matter before a tribunal or court, and the evidence shows that one of the parties has engaged in conduct that constitutes a criminal offence, is the tribunal or court required to take action on that? For example, refer it to the Police or the DPP?

    If not, can the other party ask the tribunal or court to consider such action?
     
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