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LWB238 - Wk4 - Fraud

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Queensland University of Technology

Fraud [Dishonest Application] (alternative to stealing) Definition/Punishment: WRITE: Fraud defined in s408C(1)(a) CC as when a person dishonestly applies to his or her own use or to the use of any person (i) property belonging to another; or (ii) property belonging to the person, or which is in the person’s possession, either solely or jointly with another person, subject to a trust, direction or condition or on account of any other person. It is punished in s408C(2) CC by 5 years imprisonment unless it is aggravated. Aggravating: S408C (2): (a) if offender is director or member of the governing body of a corporation, and the victim is the corporation; (b) if the offender is n employee of another person, and the victim is the other person; (c) if any property in relation to which the offence is committed came into the possession of the offender subject to trust, direction or condition. (d) If the property, or the yield to the offender from the dishonesty, is of a value of $5000 or more. Has [accused] committed fraud? 1. Was [accused]’s actions dishonest? WRITE: Australia is currently in a transition phase from the original test of whether the accused was dishonest according to objective community standards (Ghosh; R vLaurie), towards a test where the accused must have knowledge, belief or intent of dishonesty and in certain cases the jury can subjectively determine the accused particular appreciation of dishonesty (Peters v R). N.B. S408C(3)(b) May be dishonest even though: (i) he/she is willing to pay for the property; or (ii) he/she intends to afterwards restore or to make restitution or afterwards fulfill his/her obligations or to make good any detriment to the property; or (iii) an owner or other person consents to doing any act or to making any omission; or (iv) a mistake by another person s408C(3)(c) Is not be dishonest if when person does act/omission, he/she doesn’t know to whom the property belongs and believes on reasonable grounds that owner cannot be discovered by taking reasonable steps, unless property came into his/her possession or control as trustee or personal representative.  If defendant has particular features, i.e. mental impairment, can argue to be taken into account in determining whether had knowledge/belief/intent: R v Laurie (Not convicted due to low IQ and brain damage) WRITE: Here, [accused] act of [facts] was/wasn’t done with a knowledge/belief/intent, namely [aim of doing the act] to make the act dishonest by the standards of ordinary and decent people and as such is dishonest under s408C(1) (Peters v R). 2. Has [accused] applied [item] to own use or use of another? WRITE: Here, [accused] has/hasn’t applied [item] to [his/another’s] use by [facts]. N.B. Must be utilization not mere plan or claim of ownership: R v Easton (Arrested, taken to watch house, searched and found a cheque for $5000 belonging to his employer, he said “I haven’t cashed my cheque”) 3. Is [item] property belonging to another OR in person’s possession subject to a trust, direction or condition or on account of any other person? WRITE: Here, [item] is/isn’t property as per the definit
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