Fraud 2 Flashcards
(21 cards)
What must the Prosecution prove for ‘Uses or attempts to use a document’?
That the offender used (or attempted to use) the document with the intent to obtain the property, service, valuable consideration or pecuniary advantage.
What does Adams on Criminal Law detail in relation to “use”?
“Use” can include a single action, such as the handing over of a document to its intended recipient, or the continuing use of a document.
Definition of attempts
Having an intent to commit an offence, does or omits an act for the purpose of accomplishing his object whether in the circumstances it was possible to commit the offence
Obtaining by Deception Section 240 (1)(a)
Obtains by deception
- By any deception
- Without claim of right
a) obtains ownership, possession of, or control over, any property, any privilege, service, pecuniary advantage, benefit or valuable consideration
directly or indirectly
Obtaining by Deception Section 240 (1)(b)
Obtains by deception
- By any deception
- Without claim of right
b) in incurring any debt or liability, obtains credit
Obtaining by Deception Section 240 (1)(c)
Obtains by deception
- By any deception
- Without claim of right
c) induces or causes any other person to deliver over, execute, make, accept, endorse, destroy, or alter any document or thing capable of being used to derive a pecuniary advantage
Obtaining by Deception Section 240 (1)(d)
Causing loss by deception
- By any deception
- Without claim of right
d) causes loss to any other person
Obtaining by Deception Section 240 (1)(A)
Without reasonable excuse
- Sells, transfers, or otherwise makes available
- Any document or thing
- Capable of being used to derive a pecuniary advantage
- Knowing that, by deception and without claim of right, the document or thing was executed, made, accepted, endorsed or altered.
3 years
What does deception mean (a)?
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 it is false in a material particular
ii) is reckless as to whether it is false in a material particular
What does deception mean (b)?
An omission to disclose a material particular, with intent to deceive any person, in circumstances where there is a duty to disclose it
What does deception mean (c)?
A fraudulent device, trick, or stratagem used with intent to deceive any person
Define representation:
Contain a proposition of fact and be capable of being false
Define false representation:
The representation must be false and the defendant must know that it is false or be reckless whether it is false. Absolute certainty is not required and wilful blindness as to falsity of the statement will suffice.
What was found in Carlos V R?
There was more than one false representation alleged. It was directed that each alleged misrepresentation should be included in a separate count.
What is required to be proved for Deception?
- 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
When is the offence committed for 240(2)(a), 240(2)(b) or 240(2)(c)?
No offence is committed unless the false statement (a) non-disclosure, (b) trick, (c) is made or used by the defendant for the purpose of deceiving their victim, or in the knowledge that the victim is virtually certain to be deceived
What does Simester and Brookbanks highlight in relation to deception?
That it is insufficient that the deception is done in the mere awareness, without intent that the victim be deceived.
Who must the deception be made to?
The deception need not have been made to the person actually delivering over the property, granting credit, conferring a benefit or suffering a loss provided the deception was the cause of the relevant conduct
Recklessness is a test based on what?
Recklessness is a test based on the defendant’s appreciation of the risk of the offence and their decision to run that risk anyway
Break down the Cameron test:
a) completely subjective. A “real possibility”
b) is subjective and objective. It looks at whether the defendant’s actions were objectively reasonable given the risk the defendant understood
What did the Supreme Court hold in Cameron?
Whether a reasonable person would have taken the risk
