Criminal 5: Fraud Offences

Question 1

What are the different fraud offences?

Answer 1

1. False misrepresentation
2. Failure to Disclose
3. Abuse of Position

Question 2

Elements of False Misrepresentation

Answer 2

Dishonestly make a misrepresentation, knowing it is false and intending to make a gain or cause a loss.

AR
- make false misrepresentation (fact, law, state of mind)
> can be implied
> can be express
> can be by conduct

MR
- know it is false or misleading
- dishonesty
- intend to make gain or cause/risk loss

Question 3

How can a misrepresentation be made?

Answer 3

1. implied
   - by conduct (eating at restaurant knowing you can’t pay)
   - saying you don’t know something when you do
2. Express
3. by conduct
   - pretending to be someone you are not (eg, for driving test)
4. State of mind
   - giving option that you do not hold

Question 4

Who can misrepresentation be made to?

Answer 4

• person
• machine (submitting false info to machine)

Question 5

Can overcharging be a false misrepresentation?

Answer 5

1. Circumstance of Mutual Trust
   - court to consider how gullible victim is and their reliance on D
2. Trusted Friend
   - no need for gullibility is likely to be found false misrepresentation

Question 6

MR for False misrepresentation: when condition of knowing statement is false satisfied?

Answer 6

D must know, or be aware that, that statement is untrue or misleading
- satisfied if D is subjectively aware of the possibility that what they are saying or implying is false

NOT found
- a belief no matter how unreasonable is honestly held
- make clear that statement may be false

Question 7

What is an intention to make a gain or cause a loss?

Answer 7

• Intention to make gain for themselves or someone else
• Intention to cause a loss to another or Exposes them to a risk of loss

1. Gain
   - includes keeping what you have or getting something else
2. Loss
   - Includes a loss by not getting what one might get, as well as parting with what one has

Question 8

Elements of Failure to Disclose

Answer 8

Dishonestly failing to disclose, whilst under legal duty and intending to make a gain or cause a loss.

AR
- existence of legal duty (to disclose); and
- failure to disclose

MR
- dishonesty; and
- intention to gain/cause loss

Question 9

When might a duty to disclose arise?

Answer 9

• Arising from statute (eg. Provision governing a company prospectuses)
• Within a transaction of the utmost good faith (contract of insurance)
• Contained in the express or implied terms of a contract
• Arising from a custom in a particular trade or market, and
• Arising from a fiduciary relationship

Question 10

Elements of Abuse of Position

Answer 10

AR
- Occupying a position; and
- Abuse of Position

MR
- Dishonesty; and
- Intention to gain/cause loss

Question 11

What type of position must you have for abuse of position?

Answer 11

D must have to look after victims financial wellbeing
- Fiduciary relationship (or akin: so expected to safeguard and act in financial interest of)
- Professional relationship
- Long term business relationship
- Voluntary work (if involves some sort of financial aspect)
- Family relationship