White Collar Crime
What is White-Collar Crime?
The term ‘white-Collar crime’ is an umbrella term which encompasses a broad category of financially related criminal offences (whether criminal or civil in nature) allegedly committed by professionals. White-collar crime can include:
- Fraud (including cyber and insurance fraud)
- Theft (including misappropriation of funds)
- Tax Evasion
- Misappropriation or Theft of Assets
- Obtaining Financial Advantage by Deception
- Breach of Directors’ Duties
- Money Laundering
White-collar crimes such as fraud also have civil counterparts. This means that if a crime is committed, a person need not rely on the police to prosecute that perpetrator; they can bring legal action against the offending person for compensation.
Gibbs Wright Litigation Lawyers deal in both civil and criminal white-collar crime and have experience in dealing with significant matters.
Our experience is evident. In 2020 we not only avoided a case against our client for $750,000 due to misappropriation of funds, but we had the case dismissed with the Plaintiff ordered to pay our client’s legal fees. We are also defending one of the largest prosecutions under the Tobacco and Other Smoking Products Act which is heading to the Queensland Court of Appeal in 2020 (Queensland’s highest Court).
What is Fraud?
Fraud is a highly complex area of law, and is generally defined as wrongful, deceitful or dishonest behaviour for personal or financial gain, such as obtaining, property, goods and services that do not belong to you and using the obtained materials for your own advantage or the advantage of third parties, to the detriment of another party. Fraud is often categorised by the type of act committed, or by the industry in which it occurs.
The main categories of fraud in Australia includes:
- Misappropriation of Bank Account Funds
- Theft of Cash (from a safe or till)
- Taxation Fraud (tax evasion)
- Card Fraud
- Organised Investment Fraud
- Serious Investment Fraud
- Superannuation Fraud
- Identity Fraud
Criminal fraud in Queensland is prohibited under section 408C of the Criminal Code 1899 (Qld) (“the Criminal Code”). The common element of criminal fraud is dishonesty. The penalty for criminal fraud is also more significant if the value of the property is at least $100,000.
In Queensland, fraud also exists as a cause of action in the civil law, including in what is called the ‘common law’ and in ‘equity’. There are numerous causes of action that may apply in fraud, for example some of which overlap (and as such, both may be available):
- Money had and received (steals cash)
- Conversion, detinue or trespass to chattels (steals property)
- Breach of fiduciary duty (acts in a way inconsistent with their duties, for example, an employee stealing from their employer)
- Unlawful conspiracy (agree with another person behind someone else’s back to financially hurt them)
- Deceit (lie to someone for a benefit)
- Barnes v Addy (knowing assistance or knowing receipt of fraud)
This is not an exhaustive list.
What is Business Crime?
Business crime, also commonly referred to as corporate crime, refers to crimes committed by a company, a business entity, or a person acting on behalf of a company or a business entity, and may encompass a number of different types of illegal activities.
Generally, business crimes tend to involve a director or other officer of a company breaching their fiduciary duty by committing an act that has an adverse effect on the company’s shareholders, or the company itself, for their own personal benefit. However, business crime may also involve an array of other scenarios, such as a company being established purely to conceal illegitimate activity.
Business crimes often overlaps with white-collar crime due to the similar nature of these two categories of crimes.
Perpetrators of corporate crimes can face both criminal prosecution, and sanctions under the Australian Securities and Investment Commission Act 2001 (Cth). The penalties which apply under section 408C of the Criminal Code are more severe where the perpetrator is the director of a company, and the crime is committed against the company, or where the victim is the perpetrator’s employee.
Defences for Fraud & White-Collar Crime
Fraud and white-collar related charges are very serious. However, there are a number of defences available for charge of fraud and white-collar crimes in Queensland. Fraud and white-collar crimes are very broad categories of crimes, and accordingly, the defences available will vary depending on the specific act committed.
Some defences that might apply depending on the circumstances of an individual case include:
- Duress (threat of violence)
- Honest Claim of Right
- Reasonable Mistake
The most common defence for fraud and white-collar crimes are honest claim of right and a mistake of fact. The other big question is whether the prosecution can prove the fraud beyond a reasonable doubt.
What remedies can I claim for Fraud, Business or White-Collar Crime?
If you are there victim of fraud, business crimes or other white-collar crimes, there are a number of different remedies that might be available to you depending on the particular circumstances of your matter, as well as the desired outcome you are seeking.
A victim of fraud, business or white-collar crime may seek to recover money or property through a number of equitable, restitutionary or legal claims.
Some of the remedies that might apply include:
- Account of Profits
Equitable remedies may also be available depending on the particular circumstances of each individual case. Importantly, equitable remedies can provide a basis for recovery from third parties and may also apply where common law causes of action in tort or contract are barred by application of the limitation periods in the Limitation of Actions Act 1974 (Qld).
How we can help you
Whether you have suffered loss as a result of the dishonesty of another, or if you yourself are accused of engaging in conduct which might amount to fraud, you should seek immediate legal advice.
At Gibbs Wright Litigation Lawyers, our lawyers approach and assess each case carefully and strategically. We can advise you on your rights and help you, whether you are bringing a claim or defending one.
Call Gibbs Wright Litigation Lawyers today about your fraud, business or white-collar crime matter.
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