5. Fraud Offences

Question 1

What are the three fraud offences?

Answer 1

1. Fraud by false representation
2. Fraud by failing to disclose information
3. Fraud by abuse of position

Question 2

For all three fraud offences, what two alternate things must D intend to do?

Answer 2

General intent:

1. To make a gain for themselves or another; or
2. To cause or risk loss to another

Question 3

In addition general intent, what act is required to commit fraud by false representation?

Answer 3

Dishonestly making a false or misleading representation knowing it is false or misleading

Question 4

To establish MR for fraud by false representation, against what standard is ‘dishonesty’ judged?

Answer 4

objective standard - same test as theft.

Question 5

For all three frauds, is it necessary to show that D actually made a gain or caused a loss?

Answer 5

No - mere intention suffices

Question 6

Can the false representation be made via an agent?

Answer 6

Yes

Question 7

Must a representation be untrue to be false?

Answer 7

No, it can also just be misleading

Question 8

For fraud by false representation, what standard of knowledge is required?

Answer 8

D must know the representation is or might be false or misleading*

• reasonable suspicion is insufficient CONTRAST wilful blindness is.

Question 9

How is causation relevant in satisfying the MR for fraud by representation?

Answer 9

casual link is necessary between D’s **representation and intention to cause loss or make a gain.

Question 10

Who gets to determine whether D’s representation is false or misleading ?

Answer 10

representation of fact - jury
representation of law - judge

Question 11

Can D still be guilty of fraud even where his representation is, in fact, true?

Answer 11

Not for committing actual fraud offence, but possibly for attempted fraud if D intended for his representation to be fraudulent.

Question 12

To what must gain or loss relate?

Answer 12

money or other property (real/person) whether real or personal including intangible property.

• not include services (ie. sex)

Question 13

Does D’s intention to cause a loss or make gain need to be permanent?

Answer 13

No - also be temporary gain/loss

Question 14

In addition to the general intent, what act is required to commit fraud by failing to disclose information?

Answer 14

Dishonestly failing to disclose information D is under a legal duty to disclose

Question 15

In addition to the general intent, what act is required to commit fraud by abuse of position?

Answer 15

Abuse of position in which D is expected to safeguard the financial interests of another

Question 16

Can abuse of position be committed by an omission?

Answer 16

Yes

Question 17

Does the defendant need the know they occupy a position in which they are expected to safeguard the financial interests of another?

Answer 17

No
- but may be relevant in outcome of dishonesty test.

Question 18

Can fraud by false representation be committed recklessly?

Answer 18

No - specific intent offence
- ONLY possible via direct or oblique intention

Question 19

How will a court determine whether D ‘abused’ his position?

Answer 19

factual question for jury to answer

Question 20

How will a court determine whether D was under a “legal duty” to disclose information?

Answer 20

legal question for judge to determine

Question 21

For fraud by false representation, is a causal link between the representation and what D aims to achieve required?

Answer 21

No - immaterial whether the false representation would/does achieve D’s intended outcome.

Question 22

Can D commit fraud by false representation simply through inaction?

Answer 22

no - case law suggest that pure silence is insufficient