Part 1 - Fraud Offences

Question 1

Define obtain

Answer 1

Obtain, in relation to any person means obtain or retain for himself or herself or for any other person

Question 2

Define property

Answer 2

Property includes real and personal property, and any estate or interest in any real or personal property, money, electricity, and any debt, and anything in action, and any other right or interest

Question 3

Define service

Answer 3

Service is limited to financial and economic value and excludes privileges and benefits

Question 4

Define pecuniary advance (case law)

Answer 4

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

Question 5

Define Valuable consideration (Case law)

Answer 5

Hayes V R - a valuable consideration is anything capable of being valuable consideration, whether of a monetary kind or of any other kind, in short, money or money’s worth .

Question 6

Three examples of valuable consideration

Answer 6

• 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

Question 7

Define dishonestly and Case law

Answer 7

D: Dishonestly, In relation to an act or omission, means done or omitted without a belief that there was expressed or implied consent to, or authority for, the act or omission from a person entitled to give such consent or authority.

CL: 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 is actually held

Question 8

Define claim of right

Answer 8

Claim of right, in relation to any act, means a belief at the time of the act in a proprietary or possessory right in the 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.

Question 9

In relation to claim of right what are the four natures of belief required

Answer 9

1. The belief in a proprietary or possessory right in the property.
2. The belief in a right to the property in relation to which the offence is alleged to have been committed.
3. The belief in the right to the property at the time of the offence.
4. The belief is actually held by the defendant, and is not required to be reasonable

Question 10

Define takes

Answer 10

Taking is when the offender moves the property or causes it to be moved

Question 11

Define document

Answer 11

Means a document and part of a document in any form and includes
- paper/material containing anything that can be read or
- photos, negatives and related items
- discs, tapes, cards, wire, and other devices/equipment on which information is stored and can be reproduced

Question 12

Document (case law)

Answer 12

R v MISIC - essentially a document is a thing which provides evidence or information or serves as a record

Question 13

Uses / attempts to use (case law)

Answer 13

Hayes v R - an unsuccessful use of a document is as much use as a successful one. An unsuccessful use must not be equated conceptually with an attempted one. The concept of attempt relates to use not to the ultimate obtaining of a pecuniary advantage, which is not a necessary element of the offence. Because the use does not have to be successful it may be difficult to draw a clear line between use and attempted use

Question 14

Define Deception

Answer 14

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 that 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 device, trick or stratagem used with the intent to deceive any person

Question 15

Define false representation

Answer 15

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 and wilful blindness as to falsity will suffice.

Question 16

In relation to deception what must you prove?
Needs to be covered off in scenarios

Answer 16

1. That there was an intent to deceive
2. There was a representation by the defendant.
3. That the representation was false, and that the defendant knew it to be false in a material particular or was reckless whether it was false in a material particular

Question 17

Intention to deceive (case law)

Answer 17

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.

Question 18

Recklessness (case law)

Answer 18

Cameron v R
Recklessness is established if
a) the defendant recognised that there was a real possibility that:
- his or her actions would bring about the proscribed results; and/or
- that the proscribed circumstances existed; and
b) having regard to that risk those actions were unreasonable

Question 19

Define intent

Answer 19

Firstly there must be an intention to commit the act and secondly an intention to get a specific result

Question 20

A representation by the defendant (case law)

Answer 20

R v Morley - Representations must relate to a statement of existing fact, rather than a statement of future intention

Question 21

Explain continuing effect/representation

Answer 21

In many cases a representation by words or conduct may have a continuing effect.

For example, entering a restaurant and ordering dinner represents that the diner will follow the normal practice and pay for the meal.

If during the course of the dinner the diner decides to avoid payment, the continuing representation will become false. And the obtaining of food will come within s240

Question 22

Is silence regarded as a representation?

Answer 22

As a general rule, silence or non-disclosure will not be regarded as a representation.

An exception is where the defendant swapped a price label for a lower priced item when he knew the correct price

Question 23

How can the defendant’s knowledge be established in relation to making a false representation?

Answer 23

• an admission
• implication from the circumstances surrounding the event
• propensity evidence

Question 24

Define material particular

Answer 24

Can be given to its usual meaning of an important, essential or relevant detail or item.
A matter will be a material particular if it is something important or something that matters

Question 25

Define omission

Answer 25

An omission is inaction

Question 26

Define Device

Answer 26

A plan, scheme or trick

Question 27

Define trick

Answer 27

An action or scheme undertaken to fool, outwit or deceive

Question 28

Define stratagem

Answer 28

A cunning plan or scheme especially for deceiving an enemy, or trickery

Question 29

Define privilege and benefit

Answer 29

A special right or advantage

Question 30

Examples of privilege and benefit

Answer 30

• using another person’s gym membership card
• access to medical services
• the withdrawal of an assault charge
• a reduction in sentence for an offence

Question 31

When are goods obtained by a defendant?

Answer 31

When the goods come under their control, even though they may not have physical possession

Question 32

What is the distinction between theft and obtaining by deception?

Answer 32

Is that in theft the property is obtained without the owners permission and title is not passed on.

Question 33

Define ownership

Answer 33

Ownership is synonymous with the concept of title

Question 34

Possession (case law)

Answer 34

R v Cox - possession involves two elements. The first the physical element, is actual or potential physical custody or control. The second, the mental element is a combination of knowledge and intention, knowledge in the sense of an awareness by the accused that the substance is in his possession and an intention to exercise possession

Question 35

Define control

Answer 35

To exercise authoritative or dominating influence or command over it

Question 36

Examples of pecuniary advantage

Answer 36

• cash for stolen goods
• clothing or cash obtained by credit card
• a discount by using a student ID card
• avoiding or deferring payment of a debt

Question 37

Define Debt

Answer 37

Money owing from one person to another

Question 38

Define liability

Answer 38

A legally enforceable financial obligation to pay such as a cost of a meal

Question 39

A debt and liability must both be what?

Answer 39

Legally enforceable

Question 40

Define credit (case law)

Answer 40

Fisher v Raven - Credit refers to the obligation in the on the debtor to pay or repay, and the time given for them to do so by the creditor. Credit does not extend to an obligation to supply services or goods.

Question 41

Explain the timing of intention to deceive

Answer 41

The intention to deceive is essential and must exist at the time when the deception is perpetrated. So when credit is obtained a later decision not to repay is insufficient

Question 42

R v McKay Timing of intention to deceive (case law)

Answer 42

R v McKay - on appeal it was held that the credit had been obtained on booking in but at that time the accused did not posses an intent to deceive

Question 43

Define credit obtained

Answer 43

Credit obtained must be in respect of a monetary obligation

Question 44

What is someone liable for if they sell goods obtained by hire purchase by a false representation

Answer 44

Theft by conversation as they never receive title for the goods fraudulently obtained on hire purchase

Question 45

Define induces

Answer 45

To persuade, bring about or to give rise to

Question 46

Inducement discussion (case law)

Answer 46

R v Laverty - it is necessary for the prosecution to prove that the person parting with the property was induced to do so by the false representation made

Question 47

Range if activity for section 240(1)(c) includes

Answer 47

Deliver over, execute, make, accept, endorse, destroy or alter

Question 48

Define loss

Answer 48

The loss cause be deception must be a direct loss.

Is likely to include financial and property losses and may also encompass emotional, cultural and intellectual losses.

Question 49

How can representations be made

Answer 49

They can be made orally, documentary or by conduct