Fraud Flashcards
Dishonestly
An act or omission done without a belief that there was express or implied consent to (or authority for) the act or omission from a person entitled to give such consent.
Defence: belief in consent.
Without Claim of Right
A belief at the time of the act in a proprietary or possessory right in the property relating to the offence. That belief may be based on ignorance, mistake of fact or any matter of law other than the enactment against which the offence is alleged to have been committed.
Defence: a belief in claim of right.
Takes (Fraud)
For tangible property, theft is complete when the property is moved or caused to be moved.
Use
Handing over a document to its intended recipient is sufficient for ‘use’. The actus reus is the handing over of the document. If card declines, it is still ‘use’.
Attempts to Use
Requires the element of sufficiently proximate. Following R v Karpur, it can include many acts leading up to the offence which alone could be seen as ‘preparation’.
Hayes v R
An unsuccessful use of a document is as much ‘use’ as a successful one, and is NOT an ‘attempt’. ‘Attempt’ relates to use not to the ultimate obtaining of a pecuniary advantage.
Use =/ successful use, therefore it may be difficult to draw a clear line between use and attempted use.
Hayes v R
Document
A document is a thing which provides evidence or information or serves as a record - R v Misic
Eg a loan application
Intent (Deception)
An act / omission done deliberately, not involuntary or accidental.
R v Collister
The Defendant must intend to obtain via the deception. This element does not require completion of the act. The loss/gain must be legally possible (when the act completed is a crime asoposed to not).
intent can be inferred from circumstantial evidence, including the offender’s actions, words before/after the event, surrounding circumstances, and the nature of the act itself.
R v Collister
Property
S2 CA 61 – includes real and personal property, and any estate or interest in any real or personal property, money, electricity, and any debt, and any thing in action, and any other right or interest.
Service
An activity that has financial or economic value.
Pecuniary Advantage
Anything that enhances the accused’s financial position. It is that enhancement which constitutes the element of advantage.
Eg discounting, getting cheaper, cash from stolen goods, avoiding or deferring a debt payment
Valuable Consideration
Has wider scope than Pecuniary Advantage.
Eg money in return for goods or services, goods for services.
Hayes v R - A valuable consideration is anything capable of being valuable consideration, whether of a monetary kind or of any other kind, ie: money or money’s worth.
A valuable consideration is anything capable of being valuable consideration, whether of a monetary kind or of any other kind, ie: money or money’s worth.
Hayes v R
Privilege/Benefit
Special right or advantage.
Eg using someone else’s membership, access to medical services, the withdrawal of a Court charge
Credit
An obligation by the defendant to repay a debt.
Loss
Actual financial detriment to the victim.
Loss directly attributable to the deception, can’t be an indirect loss – Morley v R
Debt
Money owing from one person to another.
Must be legally enforceable.
Liability
A legally enforceable financial obligation to pay.
Must be legally enforceable.
Title
Legal ownership and rights to a property.
Defendant obtains goods via theft > has possession, but not the title.
Defendant obtains goods via deceit > acquires possession and title to that property > can on-sell goods and pass legal title to a third party, who then is the legal owner of it.
UNLESS via a Police complaint, Court order, or by bringing it to the attention of the Deceiver, the title is voided, in which case the property can be returned to the original owner.
NOTE: when hiring or borrowing, title is NOT conferred to the hirer/borrower.
Obtain
Obtain or retain for himself or any other person.
S240(2) CA 61 – defines ‘Deception’ as:
a) FALSE REPRESENTATION - knowingly or recklessly making a false representation (orally, documentary or by conduct) with an intention to deceive any other person;
b) NON-DISCLOSURE - Non-disclosure of a material particular with intent to deceive any person in circumstances where there is a duty to disclose; and
c) TRICKERY - Trick, fraudulent device or stratagem used with intent to deceive any person.
Deception requires all three:
1. The intent to deceive
2. The representation AND
3. That it was knowingly or recklessly made
s228(1)(a) and (b) - Dishonesty Taking / Using a Document
Dishonestly and without claim of right
(a) Takes or obtains / (b) uses or attempts to use
Any document
with intent to obtain any property, service, pecuniary advantage or valuable consideration (PSPAV)
s240(1)(a)
By any deception and without claim of right
Obtains ownership, possession or control over any PSPAV, privilege or benefit
directly or indirectly,
s240(1)(b)
By any deception and without claim of right
in incurring any debt or liability, obtains
Credit.
s240(1)(d)
By any deception and without claim of right
Causes loss to any other person.
Hayes v R
Use/Attempts to Use
Valuable Consideration
Use - an unsuccessful use of a document is as much ‘use’ as a successful one, and is NOT an ‘attempt’. ‘Attempt’ relates to use not to the ultimate obtaining of a pecuniary advantage.
Valuable Consideration - A valuable consideration is anything capable of being valuable consideration, whether of a monetary kind or of any other kind, ie: money or money’s worth.
Hayes v R
Use/Attempts to Use
Valuable Consideration
Use - an unsuccessful use of a document is as much ‘use’ as a successful one, and is NOT an ‘attempt’. ‘Attempt’ relates to use not to the ultimate obtaining of a pecuniary advantage.
Valuable Consideration - A valuable consideration is anything capable of being valuable consideration, whether of a monetary kind or of any other kind, ie: money or money’s worth.
Hayes v R
Use/Attempts to Use
Valuable Consideration
Use - an unsuccessful use of a document is as much ‘use’ as a successful one, and is NOT an ‘attempt’. ‘Attempt’ relates to use not to the ultimate obtaining of a pecuniary advantage.
Valuable Consideration - A valuable consideration is anything capable of being valuable consideration, whether of a monetary kind or of any other kind, ie: money or money’s worth.
