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11.1.2 Fraud suspected during interview
220.127.116.11 — Where the interview occurs in connection with the investigation of an overpayment, and during the course of the interview issues arise which suggest that fraud or some other prosecutable offence under the Act may have occurred, the following action should be taken:
- firstly, ask yourself the key questions for determining if fraud is suspected (refer to this manual's Section 18.104.22.168).
- if you are still dealing with suspected fraud you should conduct the overpayment interview in accordance with Part 1C of the Crimes Act 1914, stop the interview, and tell the client that you are stopping the overpayment interview at this time.
- then you should caution the client – i.e. advise the client that what they have stated at interview indicates that an offence may have occurred. They do not have to say or do anything, but anything they do say or do may be used in evidence. The giving of certain information to the interviewee (including a caution) must be tape-recorded in accordance with section 23U and section 23V of the Crimes Act 1914.
- if the interviewee does not object to conducting the interview, the proceedings of the interview must be tape-recorded, including the giving of information and the interviewee's responses. Any confession or admission by the client is inadmissible as evidence against the person in proceedings for any Commonwealth offence unless it was tape-recorded.
- if the interviewee objects to conducting the interview, no attempt should be made to insist. No power exists for a DVA investigator (or any investigator including police) to compel a suspect to answer questions. DVA investigators have no power to detain suspects, and therefore, if a suspect requests to leave they must be allowed to do so. If an investigator detained a suspect against his or her will, the investigator is committing an offence (false imprisonment). The client should be advised that they may be requested again to attend an interview at a later date.
- the investigator may make a further request to the client under section 54AA VEA, section 32 VEA or section 128 VEA - that the client appear before the Commission or an officer of the Department to answer questions.
Note:In respect of section 32 VEA a claimant may not be summonsed to appear before the Commission to give evidence. The claimant may only be requested to attend before the Commission for a discussion of their claim or of the review as the case may be.
- after the investigator has exhausted all avenues of inquiries, then a brief should be prepared and forwarded to the DPP for prosecution consideration irrespective of whether the investigator has had the cooperation of the suspect.
To commence an interview and later discover that the interviewee may have committed an offence, any information obtained from the interviewee in the process may not be used in any form in later prosecution. The interviewee must have his/her rights protected and be treated in a fair and ethical manner.
22.214.171.124 — The key questions to be answered in deciding if a case is a suspected fraud case are:
- Was the person in a position to have sufficient knowledge to know that the statements and actions being made were unlawful, misleading or deceitful?
- Did the person engage in a course of conduct so to obtain a benefit, or a higher rate of payment? e.g. false statements
- Did the person deliberately withhold information which should have been presented to DVA?; and
- Did DVA make a payment or provide a benefit to the person, or would it have done so if suspected fraud had not been detected?
If any of the above circumstances apply then fraud should be suspected and dealt with appropriately.