fraud

Question 1

what are the 3 different ways that fraud can be committed?

Answer 1

1. fraud by false representation
2. fraud by failure to disclose
3. fraud by abuse of position

Question 2

what is the actus reus for fraud by false representation?

Answer 2

D makes a false representation (dont need anyone to rely on it)

Question 3

can a representation be implied for false representation?

Answer 3

yes it can be both express or implied

Question 4

does pure silence amount to a false representation?

Answer 4

no - pure silence without an accompanying action cannot amount to a representation

Question 5

what are the elements that need to be proved to enable the actus reus of false representation to be satisfied?

Answer 5

• express or implied representation
• representation as to fact, law or state of mind
• representation untrue or misleading

Question 6

can you deceive a machine for the purposes of fraud by false representation?

Answer 6

yes, you can - allows people who use stolen credit cards and PIN codes to get money from ATMs to be found guilty of fraud

Question 7

what are the 3 elements for mens rea for fraud by false representation?

Answer 7

1. dishonesty
2. mens rea for the false statement; and
3. intention to make a gain or cause a loss

Question 8

what is the dishonesty test?

Answer 8

1. what was the D’s knowledge and belief as to the facts?
2. given that knowledge and those beliefs, was the D dishonest by the standards of ordinary decent people?

Question 9

what falls into the realm of ‘intends to make a gain or cause a loss’

Answer 9

doesnt need to actually gain or cause loss - just needs to intend

intends to make a gain for themselves
intends to make a gain for someone else
intends to cause a loss to another; or
exposes someone to a risk of loss

Question 10

what is the actus reus for fraud by failure to disclose?

Answer 10

existence of a legal duty; and
failure to disclose

Question 11

where can the existence of a legal duty arise from for the AR for fraud by failure to disclose?
(there are 5)

Answer 11

1. arise from statute
2. within a transaction of the utmost good faith
3. contained in the express or implied terms of a contract
4. arising from a custom in a particular trade or market
5. arising from a fiduciary relationship

Question 12

what is the mens rea for fraud by failure to disclose?

Answer 12

dishonesty (Ivey v getting casinos)
intention to make a gain or cause a loss

Question 13

what is the actus reus of Fraud by abuse of position?

Answer 13

• occupy a position which requires D to look after V’s financial wellbeing (determined on a case-by-case basis)
• abuse of position

Question 14

to occupy a position which requires D to look after V’s financial wellbeing (what type of relationship does this include)?

Answer 14

can be professional, fiduciary or long-term business relationship ir even within the family or voluntary work

Question 15

what is the mens rea for fraud by abuse of position?

Answer 15

dishonesty
intention to make a gain or cause a loss