Property offences - Fraud by failure to disclose

Question 1

What is the AR and MR of fraud by failure to disclose?

Answer 1

a) Actus reus
* existence of a legal duty; and
* failure to disclose

b) Mens rea
* Dishonesty
* Intention to make a gain or cause a loss

Question 2

ACTUS REUS: What do we mean by the existence of a legal duty to disclose?

Answer 2

a) arising from statute
b) within a transaction of the utmost good faith
c) contained in the express or implied terms of a contract;
d) arising from a custom in a particular trade or market; and
e) arising from a fiduciary relationship

Question 3

ACTUS REUS: what do we mean by failure to disclose?

Answer 3

The prosecution must prove that the defendant failed to disclose the information to another person.

This will be a matter of fact, and in most instances will be easy to prove.

Question 4

MENS REA: What do we mean by dishonesty?

Answer 4

(i) What was the defendant’s knowledge and belief as to the facts?

(ii) Given that knowledge and those
beliefs, was the defendant dishonest by the standards of ordinary decent people?

Question 5

MENS REA: what do we mean by intention to make a gain or cause a loss?

Answer 5

a) extends only to gain or loss in money or other property;

b) includes any such gain or loss whether temporary or permanent; and “property” means any property whether real or personal (including things in action and other intangible property).