Problem Question 2 (FRAUD) PDF

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Problem Question concerning different circumstances of fraud. Achieved a High Distinction. ...

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Elizabeth Rich 45624372 Problem Question 2 1500 Words

1. JUSTIN Justin could be charged with fraud pursuant to section 192E of the Crimes Act 1900 (NSW). The prosecution bears the legal burden of proof the standard of beyond reasonable doubt.

ACTUS REUS Ownership Justin must, by any deception, dishonestly have obtained property belonging to another.1On the facts, Justin initially took an umbrella which he believed was his and left with it. The requirement that the umbrella was stolen ‘without a colour of right’2 cannot be established beyond reasonable doubt, and there is no evidence to suggest his act was done by any deception, dishonestly. However, a person obtains property if the person enables possession of the property to be retained by himself.3 On the facts, Justin realised he had accidently taken a second umbrella. Alex then confronted him saying that it was her umbrella. Knowing that the umbrella was not his, he replied saying it was his. By outright lying through a false statement and creating the false impression4 that the umbrella was his, it is clear that he retained the property dishonestly, by a deliberate act of deception.

Involves deception

1 Crimes Act 1900 (NSW) s 192E (1)(a). 2 The Queen v Holloway (1848) 1 Den 370, 375. 3 Crimes Act 1900 (NSW) s 192C (b)(1). 4 REG v M [1980] 2 NSWLR 195, 204.

Elizabeth Rich 45624372 On the facts, Justin’s use of the false statement ‘Nah mate ... it’s mine’ when aware that he had taken a second umbrella, created a false impression5 that the umbrella was his. However, ‘Deception means any deception, by words or other conduct, as to fact or as to law including: a deception as to the intention of the person using the deception.’6 Through this, it is clear that Justin obtained property through the involvement of deception by word of false statement.

Value Justin must have taken something of value. This includes every description of real and personal property.7 An umbrella is real and personal property, satisfying this element.

MENS REA Intended/Reckless The deception by Justin must have been intended or reckless.8 Justin had to be aware that his statement was false and intended to defraud Alex, for his deception to have been intentional.9 On the facts, it is clear that Justin was aware that his statement ‘it’s mine’ was false as he knew that he had taken a second umbrella. Due to this blatant awareness, he had intention to defraud Alex in thinking that it was his umbrella through his choice in words.

Dishonestly The obtaining of property by Justin must have been dishonest.10The word ‘dishonest means dishonest according to the standards of ordinary people and known by the defendant to be 5 Ibid. 6 Crimes Act 1900 (NSW) s 192B(1)(a). 7 Ibid s 4. 8 Ibid s 192B(2). 9 Greene v R (1949) 79 CLR 353, 357. 10 Crimes Act 1900 (NSW) s 192E.

Elizabeth Rich 45624372 dishonest according to the standards of ordinary people’.11 Justin continued to retain12 the umbrella after realising that it was not his. As the Hon Lawton LJ noted, ‘...if someone does something deliberately knowing that [the] [owner] [would] not [be] prepared to tolerate it, is that not dishonest?’.13 This question should incite the conclusion that Justin’s act was dishonest, as no one should tolerate the deliberate stealing of their property.

Intention to permanently deprive Justin must have intended to permanently deprive the owner of the property.14 Through Justin’s keeping of the umbrella, it can be seen that he intended that the owner would not get the property back, showing he had the necessary intention to constitute this element of the offence.15

Temporal coincidence Act and intent must coincide.16 As established, Justin’s actions were intentionally deceptive in which caused an obtaining of property through retaining, and he was dishonest to cause this consequence. Therefore the act and intent coincide, and temporal coincidence is made out, subject to all elements confirmed by the Jury.

CONCLUSION Justin should be charged and found guilt via jury with the offence of fraud pursuant to section 192E of the Crimes Act 1900 (NSW).17

11 Ibid s 4B(1). 12 Ibid s 192C(b)(1). 13 R v Feely [1973] 1 QB 530, 535. 14 Crimes Act 1900 (NSW) s 192B(2). 15 R v Dardovska (2003) 6 VR 628, 632 [17]. 16 Meyers v R (1997) 147 ALR 440. 17 Crimes Act 1900 (NSW) s 192E.

Elizabeth Rich 45624372

2. ALEX Alex could be charged with the offence of Larceny pursuant to common law. The prosecution bears the legal burden of proof to the standard of beyond reasonable doubt.

ACTUS REUS Capable of being stolen Alex must have taken property capable of being stolen. That is every inanimate thing which is moveable,18 tangible and of value. On the facts Alex took Justin’s bag and contents which satisfy the above terms of this element.

Belonging to another A person who takes or has in his possession something belonging to another steals that property.19 On the facts, Alex took possession of both Justin’s bag and its contents which satisfies this element.

Asportation There must be the physical act of asportation, that is the taking and carrying of an object.20 On the facts, Alex took Justin’s bag and its content and carried it away to the bin but kept the umbrella. Though Alex did not keep possession of the bag, in the words of Herring CJ ‘it is sufficient asportation if there is a removal of the property from the spot where it was originally placed with intent to steal’.21

18 Ilich v R (1987) 69 ALR 231, 249.

19 Ibid, 233. 20 Croton v R (1967) 117 CLR 326, 329. 21 Wallis v lane [1964] VR 293, 295.

Elizabeth Rich 45624372

Consent A crucial element of the offence of larceny is the removal of an item from the possession of another person against their will; a trespassory seizing and taking away of property.22 On the facts, Alex when Justin was distracted surreptitiously took his bag. The facts display beyond reasonable doubt that Alex stole Justin’s bag without his knowledge, the bag and its contents were taken invito domino.23

MENS REA Intention to permanently deprive Larceny is committed by a person who at the time of taking permanently intended to deprive the owner thereof.24 On the facts, Alex surreptitiously took Justin’s bag. She took the umbrella out of the bag and dumped his bag in a bin. The surreptitious nature of Alex’s act of taking, combined with the arguably vengeful trashing of Justin’s bag and the keeping of the umbrella, expresses she had a clear intention to permanently ‘deprive him wholly of his property’25 in multiple regards.

Claim of right to the property The elements of larceny includes the requirement that the thief steal the property without ‘a colour of right’.26 To convict an ordinary person for which they mistakenly but honestly claim a right to take an object which they believe is their property would be unjust.27 On the facts,

22 R v Davies [1970] VR 27.

23 Director of public prosecutions (cth) reference no 1 of 1996 [1998] 3 vr 217, 227. 24 Ilich v R (1987) 69 ALR 231, 233. 25 The Queen v Holloway (1848) 1 Den 370, 375. 26 Ibid. 27 Walden v Hensler (1987) 163 CLR 561, 570.

Elizabeth Rich 45624372 Alex saw the umbrella in Justin’s bag and believed it was hers. The requirement that it was stolen ‘without a colour of right’28 cannot be established beyond reasonable doubt. However, for this claim to be sufficient, it must extend to the entirety of the property taken, and be equivalent in value to that of the claimed property.29 She took the bag with the umbrella, such a claim does not provide any answer as the property taken intentionally goes beyond that to which the bona fide claim attaches.30

Taken fraudulently (dishonestly) Alex’s act of taking Justin’s property must have been done fraudulently or dishonestly, and involve moral obloquy.31 On the facts, Alex acted surreptitiously without Justin’s knowledge when taking his bag and contents which is clearly dishonest to the standards of ordinary decent people.32 The act was fraudulent as the bag and contents were not her property and it is clear she had a felonious intention to wholly deprive Justin of his bag as she binned it, which shows the element of moral obloquy within her act.

Temporal coincidence Act and intent must coincide.33 It is clear that Alex’s taking of Justin’s bag involved the taking and carrying away of the personal goods of another with the felonious intent to convert them to the taker’s own use, and to permanently deprive the owner of the property without their consent.34 Due to the satisfaction of these elements, temporal coincidence is made out. Yet all elements must be confirmed by a Jury.

28 The Queen v Holloway (1848) 1 Den 370, 375. 29 R v Lopatta (1983) 10 A Crim R 447. 30 Astor v Hayes (1988) 38 A Crim R 219, 222. 31 R v Feely [1973] 1 QB 530, 540. 32 Ibid, 538. 33 Meyers v R (1997) 147 ALR 440. 34 Croton v R (1967) 117 CLR 326, 329.

Elizabeth Rich 45624372 CONCLUSION Alex has committed and should be found guilty by jury of the offence of larceny pursuant to the common law....