Short Answer Flashcards
Four beliefs for Claim of Right
1- A belief in possessory or propriety rights over the property
2- The belief must be about rights to the property in relation to which the offence has been committed
3- The belief must be held at the time of the conduct
4- The belief must be held by the defendant but does but does not have to be reasonable and may be based on ignorance or mistake
Subjective & Objective test for Recklessness
It must be proved not only that the defendant was aware of the risks and continued regardless (SUBJECTIVE TEST) but also it was unreasonable for him to do so
When recklessness is an element of the offence the following must be proved:
1 - The defendant consciously and deliberately ran a risk (Subjective)
2 - The risk was unreasonable to take in the circumstances (Objective - based on a reasonable person would take risk)
R V HARNEY
Proof of inducement (PERSUADE)
The proof in the inducement should be proved whenever possible by direct evidence from the person alleged to have been defrauded. 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
Proof of inducement - What 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 belief that the victim parted with his or her money
XX Define the following terms set out in Section 240(1)(b) - Debt/Liability
Debt - money owing from one person to another
Liability - Legally enforceable financial obligation
Where a person has been induced to part with goods by deception, what are two steps he can take to avoid the deceivers title?
1 - Take all steps possible to bring it to the offenders attention eg written letter
2 - Notify the Police the good were obtained by deception
XXX To successfully prosecute on a charge of Using altered or reproduced documents, what are 3 mental elements required to be proven under section 259?
1) The defendant must know the relevant matters relating to the document in question
2) The Defendant must have intended the employment of the document or caused another to use or rely on it to obtain by deception any VC, Service, PA, Property, Benefit
3) There must be an intention to acquire or retain the property etc to cause loss by deception
XX What ‘knowledge’ must an accused person have to be liable for making a false representation?
How can ‘knowledge’ be established?
READ THE QUESTION 2PARTS
a) Prosecution must establish either that the defendant knows his representation is false in material particular or is reckless as to whether it is false in material particular.
b) Knowledge can be established by Admission, Surrounding Circumstances, Propensity evidence
XX The prosecution must establish either that the defendant knows or believes his representation is false in a material particular, or is reckless to whether it is false.
State your understanding to the term False in a material particular?
Material Particular is an important, essential or relevant detail/item
Prosecution must establish either that the defendant knows his representation is false in material particular or is reckless as to whether it is false in material particular.
Knowledge can be established by Admission, Surrounding Circumstances, Propensity evidence
XX Investigations into company fraud complaints will usually involve enquiries with the Ministry of Commerce.
State Four possible sources available: RICO
- Registrar of Companies
- Insolvency Services
- Companies Office
- Official assignee
Propensity evidence may be relevant in some deception cases. When may evidence of propensity be called in cases of deception?
When there is sufficiently strong connections between the offences
Police investigating the fraudulent use of credit cards or cheques must conduct enquiries with the bank where the account is domiciled. List the information the investigator must obtain from the bank account manager?
- The account holders full name, occupation, private and business address/phone numbers
- The date the account was opened
- The account history and how it operated
- The date the cheque book or credit card was reported missing
- How and by whom a loss was reported
- The serial number of missing cheques
- Details of cheques dishonoured and returned
- Whether the account holder is suspected of issuing valueless cheques
What are the two core elements when it comes to an offence under S220 theft by a person in a special relationship?
1) defendant received the property under obligations, outlined by another person, (employer) that determine what they can do with the property (or its proceeds). AND
2) That the defendant intentionally departed from the relevant obligations.
What’s the difference between forgery and altering a document? 4marks
The difference between the two lie between the definitions of document and intent.
With forgery an intent to deceive only is required not an intent to obtain by deception
In the offence of altering etc you must prove that the offender intended to obtain by deception.
Any document can be altered, but for a charge of forgery the document must be a false document.
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Things a judge may consider when considering propensity evidence?
Frequently, connecting, similar number of, unusual, persons, who are colluding
- Nature of the issue in dispute
- FREQUENCY with which the acts have occurred
- CONNECTION time between the acts and the offence for which the defendant is being tried
- Extent of the SIMILARITY between the acts
- NUMBER OF PERSONS making allegations against the defendant that are similar to the offence for which the Defendant is being tried
- Whether the allegations may be the result of COLLUSION
- Extent to which the are UNUSUAL
