Under s 409(1) of the Criminal Code (WA), the elements of deceit (or fraudulent means) and intent to defraud are separate and distinct; a person can act dishonestly without having an intent to defraud. The person deceived need not be the same person as the target of the intent to defraud. Where an accused raises an honest claim of right, the trial judge must direct the jury on that defence with respect to the actual intended target of the fraud, not merely the person upon whom the deceit was practised. The proviso cannot be applied where misdirection makes it impossible to determine what the jury found and evidentiary gaps prevent the appellate court from being satisfied of guilt beyond reasonable doubt.
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