3. Fraud PDF

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Criminal Law Fraud Summary...

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FRAUD The offence of fraud is contained in s 192E of the Crimes Act. Fraud is where a person, through any deception (s 192B), dishonestly (s 4B) – (1)(a) obtains property (s 4) belonging to another; or (s 192C) (1)(b) obtains any financial advantage or causes any financial disadvantage (s 192D)

Definitions Deception - is defined in s 192B and includes by words or any other conduct Intentional deception: One intends to trick or mislead another to deprive them of property or money whilst having knowledge of the deception Reckless deception: The person causing the deceit acts with the knowledge of the foresight that they will deprive the other of property or money. Dishonestly is defined in s 4B and is ‘dishonest according to the standards of ordinary people (objective) and known by the defendant to be dishonest according to the standards of ordinary people (subjective)’ Property is defined in s 4 includes every description of real property and personal property etc Financial advantage - is given its ordinary meaning - Walsh

The Elements for Fraud are: 1. 2. 3. 4. 5.

By any deception Dishonestly Obtains property belonging to another; or Obtains any financial advantage, or Causes any financial disadvantage

By any deception – definition in s 192B Deception is by words or conduct and must be intentional or reckless • • • • • • • • • • •

Defendant can be guilty of fraud by false representation if he starts out with a genuine representation but it later turns into a false one - DPP The representation can be continuing – DPP Dishonestly retaining monies that have been obtained, where there has been no deception that caused the monies to be paid in the first place, is not Fraud- Moore No evidence to establish any deception by Moore, and mere “dishonesty” is insufficient to establish Fraud – Moore A bonafide belief in a claim of legal right, this will negative an intention to defraud: Kastratovic It does not matter that the person deceived is not the property from whom the person is obtainedKastratovic At common law exaggeration will not amount to a deception: it will be a question of fact for the jury to determine the distinction: R v John Bryan Representation does not need to be explicit (stated clearly), can be implied from the accused’s words or conduct Can be implicit (suggested) representations- if you order food in a restaurant - implicitly agrees to pay for the food if it is provided properly -DPP A person only deceives someone if s/he induces them to believe that something which is actually false is true The False Representation was Believed - a person must have believed the false representation, and thus been deceived

Dishonestly – definition s 4B The test for dishonesty set out in Ghosh had two limbs: •

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whether the conduct complained of was dishonest by the lay objective standards of ordinary, reasonable and honest people; and whether the defendant must have realised that ordinary, honest people would so regard his behaviour. The test for dishonesty is both subjective and objective: Ghosh Need both deception and dishonesty – can’t have only one

Obtains property belonging to another OR – definition 4 •

Property includes personal cheques and bank cheques: Parsons

Obtains any financial advantage • • • • •

A representation can be continuing or operative - simply doing nothing to appear and be treated like an ordinary customer is enough to constitute deception – DPP The transaction must be regarded in its entirety beginning with the respondent entering and ordering: DPP v Ray All men obtain a financial advantage by deferring payment: DPP v Ray The accused wrote a cheque for in pretended payment of an existing debt knowing the cheque be dishonoured. Vasic (2005 No evidence to establish any deception by Moore, and mere “dishonesty” is insufficient to establish Fraud -Moore

Causes any financial disadvantage Causation has to be established to be fraud • • • • • •

The term “financial advantage” is given its ordinary meaning: R v Walsh The prosecution must also prove that D ‘obtained by deception’ Balcombe v De Simioni (1972) That is, that the deception caused must have been the operative means for the obtaining of the property/financial advantage: Balcombe v De Simioni (1972) There must be a causal nexus between the deception and the property passing/financial advantage/financial disadvantage: R v Kovacs What there must be is a causal connection between the deception used and the pecuniary advantage obtained -Kovacs Purchaser relied on salesman’s representation that the salesman new to be false – and made a purchase – wouldn’t have purchased, if wasn’t given a lie – yes it’s for charity is deception -Balcombe

Honest belief in a Claim of Right If a claim of right is raised as a response to an allegation of dishonesty: see Larceny •

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Able to demonstrate he was owed the money – he was deceptive in getting it – but he was not dishonest – no fraud. Where D has a bonafide belief in a claim of legal right, this will negative an intention to defraud. -Kastratovic A bonafide belief in a claim of legal right, this will negative an intention to defraud: Kastratovic

Mere Possession of Property •

Does not matter whether ownership or merely possession of goods are obtained by dishonest means Petronius-Kuff (1983) –...