5. Fraud Offences Flashcards
done
What are the three fraud offences?
- Fraud by false representation
- Fraud by failing to disclose information
- Fraud by abuse of position
For all three fraud offences, what two alternate things must D intend to do?
General intent:
- To make a gain for themselves or another; or
- To cause or risk loss to another
In addition general intent, what act is required to commit fraud by false representation?
Dishonestly making a false or misleading representation knowing it is false or misleading
To establish MR for fraud by false representation, against what standard is ‘dishonesty’ judged?
objective standard - same test as theft.
For all three frauds, is it necessary to show that D actually made a gain or caused a loss?
No - mere intention suffices
Can the false representation be made via an agent?
Yes
Must a representation be untrue to be false?
No, it can also just be misleading
For fraud by false representation, what standard of knowledge is required?
D must know the representation is or might be false or misleading*
- reasonable suspicion is insufficient CONTRAST wilful blindness is.
How is causation relevant in satisfying the MR for fraud by representation?
casual link is necessary between D’s **representation and intention to cause loss or make a gain.
Who gets to determine whether D’s representation is false or misleading ?
representation of fact - jury
representation of law - judge
Can D still be guilty of fraud even where his representation is, in fact, true?
Not for committing actual fraud offence, but possibly for attempted fraud if D intended for his representation to be fraudulent.
To what must gain or loss relate?
money or other property (real/person) whether real or personal including intangible property.
- not include services (ie. sex)
Does D’s intention to cause a loss or make gain need to be permanent?
No - also be temporary gain/loss
In addition to the general intent, what act is required to commit fraud by failing to disclose information?
Dishonestly failing to disclose information D is under a legal duty to disclose
In addition to the general intent, what act is required to commit fraud by abuse of position?
Abuse of position in which D is expected to safeguard the financial interests of another
Can abuse of position be committed by an omission?
Yes
Does the defendant need the know they occupy a position in which they are expected to safeguard the financial interests of another?
No
- but may be relevant in outcome of dishonesty test.
Can fraud by false representation be committed recklessly?
No - specific intent offence
- ONLY possible via direct or oblique intention
How will a court determine whether D ‘abused’ his position?
factual question for jury to answer
How will a court determine whether D was under a “legal duty” to disclose information?
legal question for judge to determine
For fraud by false representation, is a causal link between the representation and what D aims to achieve required?
No - immaterial whether the false representation would/does achieve D’s intended outcome.
Can D commit fraud by false representation simply through inaction?
no - case law suggest that pure silence is insufficient
