Fraud offence investigations can begin in various ways and progress through multiple stages before criminal charges are laid. Understanding this process is essential for anyone who becomes aware they are under investigation or who receives notice that charges may be brought.
At Kingston Fox, we regularly advise clients during fraud investigations and understand how these matters develop from initial complaint through to prosecution.
What are fraud matters?
Fraud matters commonly involve an element of dishonesty. Both State and Federal law govern these types of matters. State offences are contained in the Crimes Act (1900), with general fraud offences under section 192E.
Federal (or Commonwealth) offences are largely found in the Criminal Code (1995). Some of these offences include tax fraud, social security fraud, money laundering, dealing with proceeds of crime, and corporate fraud.
How fraud investigations typically begin
Common triggers for a fraud investigation include:
- Reports from victims who believe they have been defrauded
- Internal audits or compliance reviews that identify suspicious transactions
- Bank alerts regarding unusual account activity or suspected money laundering
- Whistleblower reports from employees or associates
- Referrals from regulatory bodies such as ASIC or the ATO
The nature of the complaint determines which agency investigates. Some examples of agencies and the types of matters they will deal with are:
- NSW Police: general fraud matters involving dishonesty, deception, forgery.
- ASIC: investigates corporate fraud, investment and securities fraud, and market misconduct
- Australian Federal Police (AFP): more serious and complex Federal fraud and corruption matters, including electoral fraud, tax evasion, and matters with an international element.
In some cases, the nature of the matter means that there is a joint investigation involving multiple agencies working together.
The investigation phase
Once an investigation begins, investigators gather evidence to determine whether there is sufficient material to support criminal charges. This phase can last weeks, months, or even years, depending on the complexity of the alleged fraud.
Investigative steps typically include obtaining and reviewing financial records, bank statements, transaction histories, business documents, contracts, and correspondence.
They will often conduct interviews with complainants and other witnesses. Search warrants may be obtained to seize documents and electronic devices. Permissions to record telephone conversations may also be obtained. Other expert witnesses may be used, like a forensic accountant, to trace funds and analyse financial patterns.
During this phase, a person may be unaware that they are under investigation.
When you should seek legal advice
The best time to seek legal advice is as soon as you become aware of an investigation. Many people make the mistake of waiting until they have been charged, but early legal advice can set the path for a solid and strategic defence.
It is important to understand that anything you say to the police during an interview can be used as evidence.
The decision to lay charges
After completing their investigation, police or the relevant agency must decide whether to lay charges. This decision is based on whether there is sufficient evidence to establish each element of the offence and whether a prosecution is in the public interest.
If charges are laid, you may be arrested t or served with a court attendance notice requiring you to appear at court on a specified date. The method used typically depends on the seriousness of the allegations and whether there are concerns that you may fail to appear or interfere with evidence.
What happens after charges are laid
Once charges are laid, the court process begins. For serious fraud charges, the matter will begin in the Local Court before proceeding to the District Court or Supreme Court, depending on the specific charges.
The prosecution must serve a brief of evidence containing the material they intend to rely upon. This brief should include witness statements, financial records, expert reports, and any other evidence supporting the charges. Your legal team will analyse this material to identify weaknesses, inconsistencies, or evidentiary issues.
Depending on the circumstances, the defence may negotiate with prosecutors regarding the charges, seek to negotiate, or prepare to defend the matter at trial.
Get advice
Fraud investigations are complex, and the stakes are high. It is important to obtain legal advice as early as possible.
If you are under investigation for fraud or have been charged, get in touch with our fraud defence lawyers for strategic advice. We understand how these investigations work and provide experienced representation from the earliest stages through to a trial if necessary.
The above information is general information only and does not constitute legal advice.
