Fraud Offences Flashcards
Nature of belief required
First, the belief must be a belief in a proprietary or possessory right in property. That is, there must be a belief that relates to an element of ownership of the property in question or a right to take or retain possession of it. In this context “property” may include, in appropriate cases, intangible property that cannot be possessed but may be owned.
The wording of the new definition does not specifically require the defendant to believe he or she has the relevant possessory or proprietary interest – as opposed to a belief such a right exists – so arguably a defendant could rely on a belief as to another’s legal rights.
Secondly, the belief must be about rights to the “property in relation to which the offence is alleged to have been committed”. A belief that the defendant had proprietary or possessory rights in relation to other property and was therefore in some way justified in taking or dealing with the property in regard to which the offence was allegedly committed will not be relevant or sufficient.
Thirdly, the belief must be held at the time of the conduct alleged to constitute the offence.
Fourthly, the belief must be actually held by the defendant. The belief is not required to be reasonable or be reasonably held and may be based on ignorance or mistake. However the reasonableness of the belief may be relevant in determining whether the defendant’s assertion of the belief is credible.
what is required to be proved for obtains by deception
You must prove:
• that there was an intent to deceive
• that there was a representation by the defendant
• that the representation was false; and that the defendant either:
- knew it to be false in a material particular OR
- was reckless whether it was false in a material particular.
silence in obtains by deception
In R v Waterfall11 the Court discussed that, as a general rule, silence or non-disclosure will not be regarded as a representation, but there are exceptions to this such as where an incorrect understanding is implied from a course of dealing and the defendant has failed to negate that incorrect understanding.
What is knowledge?
Simester and BB and Crooks
Simester and Brookbanks15 states knowing means “knowing or correctly believing”. They further premise that “the defendant may believe something wrongly, but cannot ‘know’ something that is false”.
Knowledge can be established by:
- an admission
- implication from the circumstances surrounding the event
- propensity evidence
In R v Crooks16 it was held that the accused may also be liable if their conduct has amounted to “wilful blindness” and thus is equated to knowledge (conduct of the accused amounting to putting their head in the sand).
Distinction between theft and obtaining by deception
An important distinction between theft and obtaining by deception is that in theft the property is obtained without the owner’s permission and title is not passed on.
Proof of the inducement for altering a document
The inducement should be proved whenever possible by direct evidence from the person alleged to have been defrauded. In practice the victim of the deception is usually questioned to elicit answers proving:
• that the false representation was believed, and
• that it was the consequence of that belief that the victim parted with his or her money
What is loss in causing loss by deception
The term “loss” is not defined by statute, but in most cases will involve financial detriment to the victim
Not all forms of loss will come within the section. Property or valuable things will be the subject matter of “loss”, but it is less clear where a loss concerns something that is non-quantifiable.
The loss caused by deception must be in the nature of a direct loss. Indirect losses, such as expectation loss (loss of a bargain) and loss of anticipated future profits are not included.
what is required to be proved for causing loss
In R v Morley the Court said the prosecution must prove that:
• the loss was caused by a deception
• it was reasonably foreseeable some more than trivial loss would occur, but
• need not prove the loss was intentionally caused.
Thus, there must be loss to “any other person”, but there is no requirement that there be any benefit to anyone.
What is propentsity evidence?
Evidence showing a person has a propensity to act in a certain way or to have a particular state of mind may be admissible in a prosecution for causing loss by deception.
Propensity evidence may also be used to disprove a defence of mistake or innocent intention.
When can propensity evidence be used?
Propensity evidence, whether on previous or later occasions to the offence charged, is admissible in cases of deception where there is a sufficiently strong connection between the offences.
For example, evidence that other cheques drawn by the defendant were dishonoured may be evidence of the circumstances in which the cheque that is the subject matter of the charge was drawn, and therefore directly relevant to the defendant’s state of mind (intent) when he or she issued it.
What is voidable title?
A title obtained by deception, fraud, duress or misrepresentation is called a ‘voidable title’. This means that the title can be avoided by the seller.
Thus, if an innocent purchaser buys goods obtained by deception, before title has been avoided, then he or she is entitled to good title.
Until the title is avoided, the defrauder has a voidable title, and can confer good title on anyone who acquires the goods from him or her in good faith and for value.
When does title pass?
Section 19 of the Sale of Goods Act 1908 is relevant. It provides that, where there is a contract for the sale of specific goods between the parties, title passes when it was intended to pass by the parties.
Section 19(2) states that to ascertain the intention of the parties, regard must be had to the terms of the contract, the conduct of the parties, and the circumstances of the case.
Forgery in legislation
Forgery
Section 256, Crimes Act 1961
(1) Every one is liable to imprisonment for a term not exceeding 10 years who makes a false document with the intention of using it to obtain any property, privilege, service, pecuniary advantage, benefit, or valuable consideration.
False document defined
A false document is defined under section 255 of this Act.
means a document—
(a) of which the whole or any material part purports to be made by any person who did not make it, or by a fictitious person; or
(b) of which the whole or any material part purports to be made by or on behalf of any person who did not authorise its making, or on behalf of a fictitious person; or
(c) of which the whole or any material part has been altered, whether by addition, insertion, deletion, obliteration, erasure, removal, or otherwise, and that purports to have been altered by or on behalf of a person who did not alter it or authorise its alteration, or by or on behalf of a fictitious person; or
(d) that is, in whole or in part, a reproduction of any other document, and that purports to have been made by or on behalf of a person who did not make it or authorise its making, or by or on behalf of a fictitious person; or
(e) that is made in the name of a person, either by that person or by that person’s authority, with the intention that it should pass as being made by some other person who did not make it, or by a fictitious person.
What are material alterations?
You can make a false document by making any material alteration to a genuine document. Under section 256, Forgery , such alterations might involve: • additions • insertions • deletions • obliterations • erasures • removal of material or otherwise.
