Part 1: Fraud offences

Question 1

Define obtain

Answer 1

Section 217, CA 1961

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

Question 2

Define property

Answer 2

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

Question 3

Define Service

Answer 3

R v Cara

Limited to financial or economic value

Question 4

**Define pecuniary advantage

Answer 4

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”

Question 5

Define valuable consideration

Answer 5

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

Question 6

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’

Answer 7

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:

Question 8

Define “claim of right”

Answer 8

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.

Question 9

in relation to claim of right

What is the nature of belief required?

Answer 9

• 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

Question 10

Define takes

Answer 10

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.

Question 11

Define document

Answer 11

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

Question 12

Define ‘attempts’

Answer 12

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

Question 13

*In “obtain by deception” what must you prove?

Answer 13

• 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

Question 14

*Part (a) of the Cameron test is completely subjective. A “real possibility” is substantively the same as…

Answer 14

something that “could well happen”

Question 15

*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:

Answer 15

“whether a reasonable and prudent person would have taken the risk”

Question 16

Example of no social utility:

Answer 16

Game of ‘Russian roulette’

Question 17

Example of high social utility:

Answer 17

Surgeon undertaking a risky but potentially life saving surgery

Question 18

Define intent

Answer 18

intention to commit an act and intention to get a specific result

Question 19

Example of deception orally

Answer 19

Verbally claiming to own goods that are in fact subject to a hire purchase agreement

Question 20

Example of deception by conduct

Answer 20

Representing as a collector for charity by appearing to be carrying an official collection bag

Question 21

Example of documentary deception

Answer 21

Presenting a false certificate of qualification/ completing a valueless cheque

Question 22

*Under 240(2) what can a “representation” be?

Answer 22

Oral, documentary, conduct or by any combination thereof.

Question 23

*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:

Answer 23

Where a incorrect understanding is implied from a course of dealing, and the defendant has failed to negate that incorrect understanding

Question 24

What must the prosecution prove in knowledge of false representation?

Answer 24

Knew that the representation was false in a material particular or was reckless as to its falsity. Absolute certainty is not required.

Question 25

Knowledge can be established by:

Answer 25

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

Question 26

What is a duty to disclose?

Answer 26

There was some material particular that was not disclosed, that the defendant was under a duty to disclose and failed to perform that duty

Question 27

Define ‘device’

Answer 27

a plan, scheme or trick

Question 28

Define ‘trick’

Answer 28

An action or scheme undertaken to fool, outwit or deceive

Question 29

Define stratagem:

Answer 29

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

Question 30

Examples of a special right or advantage

Answer 30

- 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

Question 31

What is the distinction between theft and obtaining be deception?

Answer 31

In theft the property is obtained without the owners permission and title is not passed on

Question 32

What is a contract lien?

Answer 32

Right over another’s property to protect a debt charged on that property

Question 33

To “control” something means:

Answer 33

To exercise authoritative or dominating influence or command over it.

Question 34

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

Answer 34

False- It must be proved that the defendant did in fact exercise some control over the particular property

Question 35

Examples of pecuniary advantage:

Answer 35

- 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

Question 36

What does ‘debt’ mean?

Answer 36

hat does ‘debt’ mean? | Money owing from one person to another

Question 37

What does ‘liability’ mean?

Answer 37

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

Question 38

What does ‘credit’ mean?

Answer 38

An obligation on the debtor to pay or repay, and the time given for them to do so by the creditor

Question 39

Under s240(1)b) you must prove the ID of the suspect and that they:

Answer 39

- By deception and without claim of right - In incurring any debt or liability - Obtained credit

Question 40

Examples of situations where credit may be obtained include:

Answer 40

- Obtaining money on loan - Extending existing overdraft facilities - Renting or leasing a dwelling

Question 41

**What is the correct offence? | Enter a restaurant, sit at a table and order a meal without any intention of paying for it later.

Answer 41

Obtaining credit by deception

Question 42

*What is the correct offence? | Shopkeeper mistakes the customer for someone else and gives them credit

Answer 42

, 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

Question 43

*Does intent to deceive exist where payment is withheld because of genuine dissatisfaction with the service?

Answer 43

No

Question 44

Define ‘induces’

Answer 44

persuade, bring about or give rise to

Question 45

hat needs to be in the statement of a victim in obtains by deception or causing loss by deception?

Answer 45

- That the false representation was believed, and | - That it was the consequence of that belied that the victim parted with his or her money

Question 46

What does ‘deliver over’ mean?

Answer 46

To surrender up someone or something

Question 47

What does execute mean?

Answer 47

To put a course of action into effect

Question 48

What does endorse mean?

Answer 48

To write or sign a document

Question 49

What does alter mean?

Answer 49

To change in character or composition, typically in a small but significant way

Question 50

What does accept mean?

Answer 50

To receive something

Question 51

Does indirect loss, such as loss of a bargain, and loss of anticipated future profits included in ‘loss’?

Answer 51

no

Question 52

Loss flowing from the deception should be assessed by….

Answer 52

The extent to which the complainants position before the deception had been diminished or impaired

Question 53

Penalties Exceeds $1000? Exceeds $500 but does not exceed $1000? Does not exceed $500?

Answer 53

7 years 1 year 3 months

Question 54

Propensity evidence means evidence that tends to show….

Answer 54

A persons propensity to act in a particular way or have a particular state of mind

Question 55

propensity does not include

Answer 55

- 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

Question 56

propensity evidence about a defendant in a criminal proceeding may only be offered in accordance with which sections of the evidence act 2006?

Answer 56

41, 42 or 43

Question 57

Evidence is relevant if:

Answer 57

It has the tendency to prove or disprove anything that is of consequence to the determination of the proceeding

Question 58

What is title?

Answer 58

Legal right to the property

Question 59

Does a thief get title?

Answer 59

no

Question 60

*Does a person who by deception induces someone to hand over the goods get title?

Answer 60

yes

Question 61

What is a voidable title?

Answer 61

A title obtained by deception, fraud, duress or misrepresentation. This means that the title can be avoided by the seller.

Question 62

What does a voidable title mean in practice?

Answer 62

If an innocent purchaser buys goods obtained by deception, he or she is entitled to good title

Question 63

To avoid the title, what must the person who has been deceived do?

Answer 63

- Communicate with B - Take all other possible steps to bring it to b’s notice eg letter - Advise police

Question 64

examples of an offence under s220 when the defendant has intentionally:

Answer 64

- 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

Question 65

Two core elements of proof for 220:

Answer 65

- 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

Question 66

What is the test of a document?

Answer 66

Whether the writing conveys the same message as the spoken word in the minds of all people able to read it

Question 67

You may make a false document by making any material alteration to a genuine document. Under s256, forgery, such alterations might involve….

Answer 67

- Additions - Insertions - Deletions - Obliterations

Question 68

Forgery is complete as soon as….

Answer 68

The document is made with knowledge and intent

Question 69

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:

Answer 69

- To use the document to obtain, or | - That the false document be used or acted on as genuine

Question 70

What are examples of forgery?

Answer 70

- 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

Question 71

To prove a document is a forgery, you must prove that:

Answer 71

- The document was false | - The user knew the document had been made with the knowledge and intent required under s256 of the CA 1961

Question 72

The word ‘conceal’ includes:

Answer 72

- The actual hiding of a document - The denial of its existence - The withholding of it in the face of positive duty to produce it

Question 73

What is the difference between forgery and altering/reproducing a document?

Answer 73

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

Question 74

State the definition of ‘deception’

Answer 74

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

Question 75

what is required to prove a ‘false representation’?

Answer 75

- 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

Question 76

When can goods said to have been ‘obtained’ by a defendant?

Answer 76

obtain or retain for himself or herself or any other person

Question 77

Representation can be made in 3 ways.

Answer 77

orally documentary by conduct

Question 78

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?

Answer 78

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

Question 79

Define claim of right

Answer 79

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

Question 80

What was held in Cameron v R n relation to recklessness?

Answer 80

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

Question 81

what are the differences between 'obtaining property by deception' and 'theft' with regards to possession?

Answer 81

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