Fraud Offences Flashcards
Don't fail it again, ya JACKASS!!!
Dishonestly Taking or Using a Document.
‣ Elements
‣ Scenario from T1: Postie steals mail from his route and contained within is a credit card. He uses this card to purchase some brand new shoes.
Section 228(1) Crimes Act 1961 ‣ Everyone ‣ With intent to obtain any property, service, pecuniary advantage, or valuable consideration - ‣ (A) Dishonestly and without claim of right, takes or obtains any document; or ‣ (B) Dishonestly and without claim of right, uses or attempts to use any document.
Scenario
‣ 228(1)(B) CA61
‣ Dishonestly Uses Any Document
Intent to obtain
‣ Definition: two essential elements of the intent
The defendant must intend to obtain, and they must intend to obtain by the deception
Obtain
‣ Definition
In relation to any person, means to obtain or retain for himself or herself or for any other person
Property
‣ Definition
Includes: ‣ Real and personal property ‣ Any estate or interest in any real or personal property ‣ Money ‣ Electricity ‣ Any Debt ‣ Any thing in action ‣ Any other right or interest
Pecuniary Advantage
‣ Definition [within] Case Law
Hayes v R [pa]
‣ A pecuniary advantage is anything that enhances the accused’s financial position. It is that enhancement which constitutes the element of advantage
Valuable Consideration
‣ Definition
‣ Three Examples
Definition:
‣ Money, or money’s worth
Examples:
‣ Monetary payment in return for goods and services
‣ Goods given in return for services provided
‣ Issuing a false invoice to receive payment for good never supplied
Dishonestly
‣ Definition
‣ Case Law // Hayes v R [d]
Definition:
‣ An act or omission done or omitted without a belief that there was express or implied consent or authority from a person entitled to give such consent.
Hayes v R [d]
‣ The question is whether the belief is actually held, not whether that belief is reasonable.
Claim of Right
‣ Definition
In relation to any act:
‣ Means a belief at the time of the act
‣ In a proprietary or possessory right in property
‣ In relation to which the offence is alleged to have been committed
‣ Although that belief my be based on ignorance or mistake of fact or of any matter of law other than the enactment against which the offence is alleged to have been committed.
What are the four types of nature of belief in [claim of right]?
‣ first, there must be a belief in a proprietary or possessory right in property.
‣ secondly, the belief must be about the rights to the property in relation to which the offence is alleged to have been committed.
‣ 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, whether reasonable or not and may be based on ignorance or mistake.
Takes [or] Obtains
‣ Definition of theft by taking for tangible property?
Theft is committed by a taking when the offender moves the property or causes it to be moved.
Document
‣ Definition [including] five examples of a document
‣ Paper marked with paper capable of being read
‣ A photograph
‣ Any disc or device used for RECORDING data
‣ Any material which info is supplied to any device used for RSP (recording, storing, processing) info
‣ Any material derived from info RSP to any device used for RSP info
Document
‣ Case Law // Short Definition
R v Misic
‣ essentially a document is a thing which provides evidence or information or serves as a record.
Uses or Attempts to Use
‣ What must the prosecution prove?
‣ Case Law
The prosecution must prove:
‣ That the offender used [or attempted to use] the document with the intent to obtain the property, service, benefit, VC or PA.
Hayes v R [UA]
‣ An unsuccessful use of a document is as much use as a successful one.
Attempting to Commit an Offence
‣ Definition [x3]
Section 72, Crimes Act 1961.
‣ Everyone, who having an intent to commit an offence, does or omits an act for the purpose of accomplishing his object, is guilty of an attempt to commit the offence intended, whether in the circumstances it was possible to commit the offence or not.
‣ Whether an act done or omitted with intent to commit an offence or is not only preparation for the commission of that offence, and too remote to constitute an attempt to commit it, is a question of law.
‣ An act done or omitted with intent to commit an offence may constitute an offence if it is immediately or proximately connected with the intended offence, whether or not there was any act unequivocally showing the intent to commit that offence.
Obtaining by Deception or Causing Loss by Deception
‣ Legislation for all 4 subsections
Section 240(1)(A-D), Crimes Act 1961
‣ Everyone
‣ By any deception and without claim of right,-
[A]
‣ Obtains ownership/possession/control over
‣ Any property/service/benefit/PA/VC
‣ Directly or Indirectly
[B]
‣ In incurring any debt/liability
‣ Obtains Credit
[C]
‣ Induces or causes any person
‣ To deliver over/execute/make/accept/endorse/destroy/alter
‣ Any document or thing capable of being used to derive a pecuniary advantage
[D]
‣ Cause Loss to any other person
Deception
‣ Definition (A-C)
Deception means:
[A]
‣ A false representation, whether oral, documentary, or by conduct, where the person making the representation intends to deceive any other person and -
‣‣ Knows it is false in a material particular [or] is reckless as to whether it is false in a material particular; or
[B]
‣ an omission to disclose a material particular, with intent to deceive any person, in circumstances where there is a duty to disclose it; or
[C]
‣ a fraudulent [STD] stratagem, trick, device used with intent to deceive any person
Representation
‣ This is not defined, but what does Simester & Brookbanks suggest?
Simester & Brookbanks suggest:
‣ It must be capable of being false so it must contain a proposition of fact.
False Representation
‣ Definition
‣ What is required to prove? [3]
Definition:
‣ the representation must be false and the defendant must know or believe that it is false in a material particular, or be reckless as to whether it is false.
‣ Absolute certainty is not required
‣ Willful blindness as to falsity of the statement will suffice
You are required to 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.
Intention to Deceive [two requirements of ITD]
‣ Case Law
R v Morley
‣ An intention to deceive requires that the deception is practiced in order to deceive the affected party.
‣ Purposeful intent is necessary and must exist at the time of the deception.
Recklessness
‣ Case Law
Cameron v R
‣ Recklessness is established if:
‣ [a] the defendant recognized that there was a real possibility that his actions would bring about the proscribed result; [and/or] that the proscribed circumstances existed; and
‣ having regard to that risk those actions were unreasonable.
About Intent
‣ What are the two specific types of intention in an offence?
‣ Firstly there must be an intention to commit the act
‣ Secondly there must be an intention to get a specific result
Examples of False Representations [OCD]
‣ Orally
‣ Conduct
‣ Documentary
Orally
‣ Verbally claiming to own goods that are in fact subject to a HP agreement.
By Conduct
‣ Representing oneself to be a collector for charity by appearing to be carrying an official collection bag.
Documentary
‣ Presenting a false certificate of qualification, or completing a valueless cheque on an account in which there are no funds knowing the cheque will not be honored.
A Representation by the Defendant [must relate to…]
‣ Case Law
R v Morley
‣ Representations must relate to a statement of existing fact, rather than a statement of future intention.
Knowledge ‣ What must the prosecution prove regarding knowledge of a false rep? ‣ Simester and Brookbanks ‣ How to establish Knowledge false rep ‣ What was held in R v Crooks?
The prosecution must prove:
‣ That the defendant knew that the representation was false in a material particular or was reckless as to its falsity. Absolute certainty is not required.
Simester and Brookbanks
‣ Knowing means knowing or correctly believing. The defendant may believes something wrongly but they cannot know something that is false.
Knowledge can be established by:
‣ an admission
‣ implication from the surround circumstances
‣ propensity evidence
R v Crooks
‣ it was held that the accused may also be liable if their conduct has amounted to willful blindness and thus equated to knowledge.
False in a Material Particular
‣ What must the prosecution establish?
‣ That the defendant knows or believes his representation is false in a material particular or is reckless as to whether it is false.
Material Particular
‣ Definition
‣ Case Law
Definition
‣ An important, essential or relevant detail or item.
R v Mallet
‣ It was held that a matter will be a material particular if it is something important or something that matters.
Duty to Disclose
‣ Along with showing an intention to deceive, what does s240(2)(b) require you to show? [3 things]
You are required to show:
‣ that there was some material particular that was not disclosed
‣ the defendant was under a duty to disclose it
‣ the defendant failed to perform that task
[STD] Stratagem, Trick or Device.
‣ Definitions
‣ Stratagem: a cunning plan or scheme for deceiving an enemy
‣ Trick: a scheme undertaken to fool
‣ Device: a plan, scheme or trick
Obtaining Property [etc.] By Deception
‣ Legislation
‣ Elements
Section 240(1)(a) Crimes Act 1961
‣ Everyone
‣ By any deception and without claim of right
‣ Obtains ownership [or] possession of [or] control over
‣ Any Property [or] Privilege [or] Service [or] Benefit [or] VC [or] PA
‣ Directly [or] Indirectly.
Pecuniary Advantage and Valuable Consideration
‣ Definition
‣ Four Examples
‣ Where the benefit or privilege does not involve money, does there need to be financial loss or injury to the person who has been defrauded?
Definition:
‣ The words privilege or benefit are not limited to a privilege or benefit of a pecuniary nature. Both of these words mean a special right or advantage.
Examples: ‣ Using someone's gym card ‣ Access to medical services ‣ The withdrawal of an assault charge ‣ A reduction in sentence for an offence
Question:
‣ No.
Obtains ownership, possession or control.
‣ How are goods obtained by a defendant?
‣ How may property be obtained if a deception made to one person means that the property is then actually obtained from another person?
‣ Where there is an agreement that the sending of some item shall complete a transaction, when is obtaining complete? ✟
Goods:
‣ Goods are obtained by a defendant if the goods come under their control, even though they may not have physical possession of them.
Property:
‣ Provided that the deception operated on the mind of the person giving up the property.
Example:
‣ Obtaining is complete at the time of posting.
Distinction between Theft and Obtaining by Deception.
‣ What is the important disctinction?
‣ An important distinction between theft and obtaining by deception is that in theft the property is obtained without the owner’s permission and the title is not passed on.
Possession
‣ What is an example of possessing something without having title to it?
‣ What is an example of acquiring both possession and ownership by deception?
Possession without Having Title
‣ Driving someone else’s car
Acquiring Possession and Ownership(Title)
‣ Purchase of goods using a valueless cheque. The offender receives both possession of the goods and title to them.
Ideal Possession.
‣ Case Law
R v Cox
‣ Possession involves two elements
‣ Physical Element is actual or potential physical custody or control
‣ Mental Element is a combination of knowledge and intention: knowledge that the substance is in his possession and an intention to exercise possession.
Special Interest
‣ Definition
‣ What is an example of special interest?
Definition
‣ It is sufficient if the person from who the goods were obtained had some special property or interest in the goods without having actual ownership of them.
Example:
‣ Defendant’s vehicle was being repaired. The mechanic placed a ‘lien’ over the vehicle until payment of the debt was made. The effect of this was to permit him to retain possession of the car and gave him a special property or interest in the vehicle. (vehicle was then obtained by deception by the owner).
