Part 1: Fraud offences Flashcards
Define obtain
Section 217, CA 1961
Obtain, in relation to any person, means obtain or refrain for himself or herself or for any other person
Define property
Section 2, CA 1961
Property 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
Define Service
R v Cara
Limited to financial or economic value
**Define pecuniary advantage
Economic or monetary advantage
HAYES V R
A pecuniary advantage is “anything that enhances the accused’s financial position. It is that enhancement which constitutes the element of advantage”
Define valuable consideration
Wider than just pecuniary advantage e.g. goods given in exchange for services
HAYES
“anything capable of being valuable consideration, whether of a monetary kind or of any other kind, in short, money or moneys worth
Examples of valuable consideration
- Monetary payment in return for goods or services
- Goods given in return for services provided
- Issuing a false invoice to receive payment for goods never supplied
Define ‘dishonestly’
In relation to an act or omission, means done or omitted 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 or authority
HAYES V R
The question is whether the belief is actually held, not whether that belief is reasonable. However, reasonableness may be relevant as evidence on the issue of whether the belief was actually held:
Define “claim of right”
Section 2, Crimes Act 1961
Interpretation
claim of right, 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 may 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.
in relation to claim of right
What is the nature of belief required?
- Belief in a right to the property.
- Belief is in relation to the property in question
- The belief must be held at the time of the conduct alleged to constitute the offence
- Belief must actually be held by the defendant
Define takes
Section 219(4), Crimes Act 1961
Interpretation
For tangible property, theft is committed by a taking when the offender moves the property or causes it to be moved.
Define document
217 CA 1961
Includes part of a document in any form, and includes:
- Paper/ material containing anything that can be read
- Photos, negatives and related items
- Discs, tapes, cards or other devices/equipment on which information can be stored and can be reproduced
R v Misic
Define ‘attempts’
s72
everyone who
with intent to commit an offence
does or omits an act for the purpose of accomplishing his object
is guilty of an attempt
whether in the circumstances it was possible to commit the offence or not
*In “obtain by deception” what must you prove?
- There was an intent to deceive
- There was a representation by the defendant
-That the representation was false, and the defendant either:
knew it was false OR was reckless as to whether it was false
*Part (a) of the Cameron test is completely subjective. A “real possibility” is substantively the same as…
something that “could well happen”
*In part (b) of the Cameron test, if there there is some social utility in the actions of the defendant, whether those actions were reasonable will depend on:
“whether a reasonable and prudent person would have taken the risk”
Example of no social utility:
Game of ‘Russian roulette’
Example of high social utility:
Surgeon undertaking a risky but potentially life saving surgery
Define intent
intention to commit an act and intention to get a specific result
Example of deception orally
Verbally claiming to own goods that are in fact subject to a hire purchase agreement
Example of deception by conduct
Representing as a collector for charity by appearing to be carrying an official collection bag
Example of documentary deception
Presenting a false certificate of qualification/ completing a valueless cheque
*Under 240(2) what can a “representation” be?
Oral, documentary, conduct or by any combination thereof.
*In R v Waterfall, the court discussed that, as a general rule, silence or non disclosure will not be regarded as representation, but there are exception to this:
Where a incorrect understanding is implied from a course of dealing, and the defendant has failed to negate that incorrect understanding
What must the prosecution prove in knowledge of false representation?
Knew that the representation was false in a material particular or was reckless as to its falsity. Absolute certainty is not required.
Knowledge can be established by:
- an admission
- implication from the circumstances surrounding the event
- propensity evidence
What is a duty to disclose?
There was some material particular that was not disclosed, that the defendant was under a duty to disclose and failed to perform that duty
Define ‘device’
a plan, scheme or trick
Define ‘trick’
An action or scheme undertaken to fool, outwit or deceive
Define stratagem:
A cunning plan or scheme especially for deceiving an enemy, or trickery
Examples of a special right or advantage
- Using another person’s gym membership card so that you can use the gym facilities
- Access to medical services
- The withdrawal of an assault charge
- A reduction in sentence for an offence
What is the distinction between theft and obtaining be deception?
In theft the property is obtained without the owners permission and title is not passed on
What is a contract lien?
Right over another’s property to protect a debt charged on that property
To “control” something means:
To exercise authoritative or dominating influence or command over it.
true or false? To prove the charge it is sufficient that the dishonestly obtained property was found at the premises of which the defendant had control
False- It must be proved that the defendant did in fact exercise some control over the particular property
Examples of pecuniary advantage:
- Cash from stolen goods
- Clothing or cash obtained by credit or EFTPOS card
- A discount (by using a student ID card)
- Avoiding or deferring payment of a debt
What does ‘debt’ mean?
hat does ‘debt’ mean?
Money owing from one person to another
What does ‘liability’ mean?
A legally enforceable financial obligation to pay, such as the cost of a meal
What does ‘credit’ mean?
An obligation on the debtor to pay or repay, and the time given for them to do so by the creditor
Under s240(1)b) you must prove the ID of the suspect and that they:
- By deception and without claim of right
- In incurring any debt or liability
- Obtained credit
Examples of situations where credit may be obtained include:
- Obtaining money on loan
- Extending existing overdraft facilities
- Renting or leasing a dwelling
**What is the correct offence?
Enter a restaurant, sit at a table and order a meal without any intention of paying for it later.
Obtaining credit by deception
*What is the correct offence?
Shopkeeper mistakes the customer for someone else and gives them credit
, the customer is guilty of obtaining credit by deception if they are aware of the mistake and accept the credit with no intention of paying later
*Does intent to deceive exist where payment is withheld because of genuine dissatisfaction with the service?
No
Define ‘induces’
persuade, bring about or give rise to
hat needs to be in the statement of a victim in obtains by deception or causing loss by deception?
- That the false representation was believed, and
- That it was the consequence of that belied that the victim parted with his or her money
What does ‘deliver over’ mean?
To surrender up someone or something
What does execute mean?
To put a course of action into effect
What does endorse mean?
To write or sign a document
What does alter mean?
To change in character or composition, typically in a small but significant way
What does accept mean?
To receive something
Does indirect loss, such as loss of a bargain, and loss of anticipated future profits included in ‘loss’?
no
Loss flowing from the deception should be assessed by….
The extent to which the complainants position before the deception had been diminished or impaired
Penalties
Exceeds $1000?
Exceeds $500 but does not exceed $1000?
Does not exceed $500?
7 years
1 year
3 months
Propensity evidence means evidence that tends to show….
A persons propensity to act in a particular way or have a particular state of mind
propensity does not include
- 1 of the elements of the offence of which the person is being tried, or
- the cause of the action in the proceeding in question
propensity evidence about a defendant in a criminal proceeding may only be offered in accordance with which sections of the evidence act 2006?
41, 42 or 43
Evidence is relevant if:
It has the tendency to prove or disprove anything that is of consequence to the determination of the proceeding
What is title?
Legal right to the property
Does a thief get title?
no
*Does a person who by deception induces someone to hand over the goods get title?
yes
What is a voidable title?
A title obtained by deception, fraud, duress or misrepresentation. This means that the title can be avoided by the seller.
What does a voidable title mean in practice?
If an innocent purchaser buys goods obtained by deception, he or she is entitled to good title
To avoid the title, what must the person who has been deceived do?
- Communicate with B
- Take all other possible steps to bring it to b’s notice eg letter
- Advise police
examples of an offence under s220 when the defendant has intentionally:
- failed to account to any person for property received by the defendant
- failed to account to any person for the proceeds of property received by the defendant
- dealt with the property received by the defendant otherwise than in accordance with the requirements of some other person
- dealt with the proceeds of the property received by the defendant otherwise than in accordance with the requirements of some other person
Two core elements of proof for 220:
- He or she have received property on terms or in circumstances which, to the defendant’s knowledge, affect what the defendant may do with the property or its proceeds or require the defendant to act in accordance with the requirements of another person, and
- The Defendant intentionally departed from the relevant obligation
What is the test of a document?
Whether the writing conveys the same message as the spoken word in the minds of all people able to read it
You may make a false document by making any material alteration to a genuine document. Under s256, forgery, such alterations might involve….
- Additions
- Insertions
- Deletions
- Obliterations
Forgery is complete as soon as….
The document is made with knowledge and intent
Intent to deceive is not an essential element of forgery. Nonetheless, the prosecution must prove that, at the time of the alleged act, the defendant, knowing the document was false, had intended either:
- To use the document to obtain, or
- That the false document be used or acted on as genuine
What are examples of forgery?
- writing an exam paper in the name of another person
- pre dating a deed to give it priority over another
- Forging letters of recommendation for inclusion in a CV that are necessary to obtain a position
- Falsely completing a statement of service on a witness summons
To prove a document is a forgery, you must prove that:
- The document was false
- The user knew the document had been made with the knowledge and intent required under s256 of the CA 1961
The word ‘conceal’ includes:
- The actual hiding of a document
- The denial of its existence
- The withholding of it in the face of positive duty to produce it
What is the difference between forgery and altering/reproducing a document?
In forgery, he intent to deceive only is required, not an intent to obtain by deception
With altering, you must prove that the offender intended to obtain by deception
State the definition of ‘deception’
a) a false representation, whether oral, documentary or by conduct, where the person making the representation intends to deceive any other person and -
i) knows that is is false in a material particular; or
ii) is reckless as to whether it is false in a material particular or
b) an omission to disclose a material particular, iwth intent to deceive any person, in circumstances where there is a duty to disclose it, or
c) a fraudulent device, trick or stratagem used to deceive any person
what is required to prove a ‘false representation’?
- 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
When can goods said to have been ‘obtained’ by a defendant?
obtain or retain for himself or herself or any other person
Representation can be made in 3 ways.
orally
documentary
by conduct
under what circs does a person keep title of goods if they have fraudulently induced another to hand over goods with the intention that title will pass?
a person can keep title of goods fraudulently obtained when:
section 246(4) is an exception to the rule that you cannot get a better title than the seller. If the original purchaser subsequently sells the goods to an innocent buyer (one who us not aware of the defect in title) then the title has been made legal
Define claim of right
s2 CA 1961
a belief in the time of the act in a proprietary or possessory right in property
in relation to the offence
although the belief may be based on ignorance
What was held in Cameron v R n relation to recklessness?
Recklessness is established if:
the defendant recognised that there was a real possibility that:
his or her actions woudl bring about the proscribed result; and/or
that the proscribed circs existed; and
having regard to that risk those actions were unreasonable
what are the differences between ‘obtaining property by deception’ and ‘theft’ with regards to possession?
in theft the property is obtained without the owners permission and title is not passed on
