EXAM CHALLENGE QUESTION 2

June worked as the chief of staff to the chief executive of Sydney City Bank. Chiara, a long-time
friend of June's from their school days, was the director of Corporate Services, an events and human
resources company which had been engaged periodically by the bank to organise events and the
hiring of staff for the bank. Over the course of 18 months, June authorised six separate payments
totalling $25,000 to Corporate Services for services purportedly provided by it for Sydney City Bank.
The payments were authorised by June through her signing invoices that had been prepared by
Chiara, and sending them to the bank's finance department for processing. In fact, as both June and
Chiara were aware, the payments related to fictitious services, none of which were actually
performed. In return for authorising the payments, June received $7500 through a number of
deposits made into her personal bank account by Corporate Services. Other than June, no one else
in the bank was aware of the fake invoices or June's 'secret commissions'. Meanwhile, Hugh, a
journalist working for the Herald Weekly who had been investigating bank misconduct, had become
aware though their Linked In and Facebook pages that June and Chiara were friends. He arranged an
interview with June, which June had agreed to thinking that he was writing a piece on women
leaders in the corporate sector. Hugli attended June's office and commenced the interview, using an
MP3 recorder which he had placed on her desk. When he started asking questions about her
relationship with Chiara and the bank's dealings with Chiara's company, June became nervous and
insisted that he end the interview. While Hugh was trying to persuade her to continue, he received a
call on his mobile phone. When he stepped out of the office to take the call, June noticed the MP3
recorder on the table, and moved it under a bunch of files sitting on her desk so that it was no longer
visible. She also sent a text to Chiara stating that a journalist was probing into their 'business
arrangement'. Chiara replied back that June should do whatever she could to get rid of him. When
Hugh returned and threatened to publish what he suspected about her, June grabbed him by the
shirt and pushed him against the door, telling him to leave immediately. In his haste to pack up his
equipment, and not seeing the recorder, Hugh left without realising that he did not have the
recorder.
Discuss the liability of June and Chiara for any offences committed.

EXAM CHALLENGE ANSWER 2

Offence 1 for June: fraud

June shall be charged with fraud pursuant to s 192E of the Crimes Act 1900 (NSW) (‘CA’). The
prosecution must prove all elements beyond reasonable doubt (‘BRD’) (Woolmington). The evidential
burden rests of the defence to raise any defences.

AR

1. Committed a voluntary deception:

Prosecution can rely on the presumption of voluntariness unless there is evidence to the contrary
(falconer). There is no evidence suggesting June’s acts were not ‘willed and conscious’ (Ryan).
Deception is outlined at common law. To deceive is to induce one to believe something is true that is
actually false (M. Papoulias). It requires some person/entity to be deceived (Duncan v ICAC). On the
facts, June voluntarily deceived Sydney city bank by authorising 6 payments related to fictitious
services which were not actually performed.

2. And either…
 b) Obtained a financial advantage - 192E(1)(b)

Outlined under s 192D(1) of the CA and includes obtaining a financial advantage for oneself or
another, inducing someone to obtain that advantage or keeping a financial advantage that one
already has. This financial advantage can be temporary or permanent. On the facts, June obtained
$7500 for her authorisation of the payments which she induced the bank to believe were for certain
fictitious services .

3. That obtaining or loss was caused by the deception (causation)

a) Factual causation

But for the June’s act of authorising the payments for fictitious services she would not have
obtained $7500 (Hughes) .

b) Legal causation

A link must be established between the deceptive conduct and the obtaining financial advantage
(Ho; Szeto). Deception is outlined in statute under s192B(1). The facts indicate that Junes conduct in
authorising the payments was the reason the bank was deceived and she was able to obtained
$7500. Thus, prosecution will prove causation.

MR

1. Deception was intentional or reckless

a) Intentional

Intention is outlined at common law as a desire to bring about a certain outcome (He Kaw Teh).
Under this definition, June had intention to deceive the victim by authorising the payments,
indicated by her wilful actions of singing invoices with the knowledge that they were for fictitious
services.

2. Accused’s conduct was dishonest:

Prosecution will use the test outline in Gosh. Dishonesty will be objectively assessed according to the
standards of ordinary people. And then subjectively assessed by determining whether June was
aware that this was dishonest according to those standards. The ordinary person would deem it
dishonest to authorise $25,000 worth of payments for fictitious services for a personal gain of
$7500. It is evident June was aware of this dishonesty by her concealment of such activity from the
bank.

4. Without claim of right

The prosecution must disprove any claim of right raised by the defence. Defence must raise it to the
evidential standard of reasonable possibility. On the facts, June does not hold the belief that she is
legally entitled to the money, she acted without claim of right.

Temporal coincidence (TC)

The Prosecution will establish that June’s MR and AR occurred contemporaneously (DPP v Ray).
Defences available

There are no available defences for June.

Conclusion

June has all requisite AR and MR elements to be liable for a charge of Fraud pursuant to s 192E of the
CA. She shall be sentenced to up to 10yrs imprisonment.

Offence 2 for June: Larceny

June shall be charged with larceny pursuant to s 117 of the Crimes Act 1900 (NSW) (‘CA’) The
elements of larceny are outlined at common law in Illich and the prosecution must prove all elements
of the offence beyond reasonable doubt (‘BRD’) (Woolmington). The evidential burden rests of the
defence to raise any defences.

AR

1. Voluntariness:

Prosecution can rely on the presumption of voluntariness unless there is evidence to the contrary
(falconer). There is no evidence suggesting the acts of the accused were not ‘willed and conscious
(Ryan).

2. Asportation:

the prosecution must prove that June committed a positive act in taking and carrying away the
property. The slightest movement is enough to satisfy this (Lapier). June picked up and moved the
mp3 recorder so that it was hidden from Hugh, the victim.

3. Property is tangible/physical:

The prosecution must establish that the property was capable of being stolen. Property is defined at
common law as being tangible (Young) and of value (Perry). The stolen property was an mp3 recorder
this is both tangible and of value to Hugh considering its importance to his job as a journalist.

4. Belongs to another:

The prosecution will establish that the mp3 belonged to Hugh. It must just be proven that Hugh had
exerted possession, ownership, or control of the property, indicating it belonged to them. The facts
state that the mp3 recorder belonged to Hugh and he exerted control of it by utilising it in the
interview with June.

5. Without consent:

Prosecution must prove that Hugh did not consent to their property being taken and carried away
(Kennison v Daire). Consent given due to a threat or intimidation does not constitute valid consent
(Lovell). On the facts there was no consent provided by Hugh, he was unaware that the mp3 was even
taken from him.

MR
 1. Intention to permanently deprive:

The prosecution must prove that June intended to permanently deprive Hugh of the property (Foster).
On the facts, hiding the mp3 from Hugh’s sight indicates June’s intent to permanently deprive him of
it. There is no evidence of her intent to return it to him though this would not constitute a defence
regardless, as per s118 of the CA.

2. Without a belief of claim of right:

Prosecution must disprove any claim of right, raised by the defence to the evidential standard of
reasonable possibility. Claim of right is when the accused has an honest opinion that they possess a
legal entitlement to the property which is asportated (Fuge). There is no suggestion that June felt
legally entitled to the mp3 recorder, she hid it to prevent her unlawful activities from being exposed.

3. Taken fraudulently or dishonestly:

The prosecution will use the objective test to establish that, according to the standards of ordinary
persons, the accused acted dishonestly/fraudulently (peters). Taking property from someone without
their knowledge and hiding it from them would be considered, by the standards of the ordinary
person, dishonest.

Temporal coincidence (TC)

To establish TC, prosecution must prove that the accused acted with fraudulent dishonesty (Thurbon).
The Prosecution will establish that June’s MR and AR occurred contemporaneously.

Defences available

There are no defences available for June.

Conclusion

June has all requisite AR and MR elements to be liable for a charge of larceny pursuant to s 117 of the
CA. She shall be sentenced to up to 5yrs imprisonment.

Offence 3 for June: Common Assault (physical)

June shall be charged with physical assault pursuant to s61 of CA. Prosecution must prove all AR and
MR elements BRD (Woolmington). Defence may raise the defence of self defence according to s 418
of the CA, which must be proven to the standard of balance of probabilities.

AR

1. Voluntary Act
The prosecution is entitled to presume the acts of the accused were voluntary (Falconer) and ‘willed
and conscious’ (Ryan) unless evidence the contrary is presented. There is no contrary evidence,
presumption can be relied on.

2. Causes unlawful contact

The acts of June effected unlawful contact; a very light application of force will suffice (DPP v
Smith).
 (a) Factual causation
But for June’s acts, of grabbing hughs shirt and shoving him against the door, then his injuries
would not have ensued (Royall).
(a) Legal causation
The prosecution will establish that pushing Hugh against the door was the substantial and
operating cause of the unlawful contact (Royall; Swan).

3. V did not consent

Prosecution must prove BRD that Hugh did not consent to June’s acts (Bonora; Boughey), absence of
consent will suffice. On the facts consent was not given nor asked.

Mens Rea (MR)

1. A intentionally effected unlawful contact OR

Prosecution must prove June intentionally made unlawful contact with V (Fagan), though this
contact need not be hostile (Boughey). Intention means the act was ‘willed’, A wanted to bring
about the result (He Kaw The). The act of grabbing Hugh’s shirt and pushing him against the
door, was done with direct intent to apply unlawful contact to V.

Temporal coincidence

Prosecution will establish that the MR and AR occurred contemporaneously. Prosecution may rely on
Fagan to establish a continued MR.

Defences available

Self defence

Defence may raise the complete defence of self-defence pursuant to s 418(a) of the CA and must be
done so to the standard of reasonable possibility (Katarzynski). Prosecution must then disprove this
BRD (s 419). It will be argued that Junes conduct was necessary to protect herself from unlawful
behaviour, such conduct was carried out only for the purpose of self-defence, and it was a reasonable
response to the perceived circumstances.

Defence may argue June’s conduct was necessary to defend herself. Under s 418(2), the subjective
test or ‘genuine belief test’ must be applied. This test assesses the personal characteristics of the
accused in determining their genuine belief. On the facts, the accused believed Hugh was trying to
expose her unlawful ‘business arrangements’. She did not perceive Hugh as a threat, she merely
wanted to protect herself from being caught. The jury will not find that June held a genuine view that
her conduct was warranted.

Conclusion:
June will be unsuccessful in arguing the complete defence of self-defence pursuant to ss 418-423 of
the Act, to the standard of reasonable possibility. She has all requisite AR and MR elements for
Common assault thus, she will not be acquitted, her charge under s 61 of the CA still stands.

Offence 4 for Chiara: Fraud under JCE

1. Introduction:
Chiara could be charged as a principle in the second degree under the doctrine of joint criminal
Enterprise (JCE) (Osland) per s 192E of the CA. The prosecution will establish all elements of fraud
BRD (Woolmington) and will then seek to establish that a JCE transpired. The evidential burden rests
on the defence to raise any possible defences to the standard of reasonable possibility (Jayasena).

AR

All elements of the offence must be completed by the enterprise (McEwan)

1. Voluntariness:

Prosecution can rely on the presumption of voluntariness unless there is evidence to the contrary
(falconer). There is no evidence suggesting the acts of the accused were not ‘willed and conscious’
(Ryan). Prosecution can rely on this presumption.

2. Agreement to act in concert:

Prosecution must prove there was an agreement or understanding amounting to agreement between
June [P1] and Chiara [P2] (Osland). This agreement can occur at any time before the crime (Osland)
and can be spontaneous (Hawi). It need not be in writing (Kanaan), it can be unspoken (Tangey) or
can be inferred by words or conduct (Osland). On the facts Chiara prepared invoices and June
authorised them and sent them to the finance department. Thus, there is an unspoken arrangement that
amounts to an agreement between [P1] and [P2].

3. Participation:

It is required that the prosecution prove each defendant participated in some way to furthering the
execution of the agreement reached. Participation can be inferred either by completing some part of
the AR (Osland) or by presence at the scene (Huyung) though this is not necessarily required. On the
facts Chiara was both present at the scene and completed the deceptive element of the AR by
creating the invoices for the fictitious services.

MR

4. Intentionally assisted or encouraged:

It is required that the prosecution prove that [P2] either has the necessary MR for the relevant crime or
intentionally assisted and encouraged another participant to commit the crime.

Option 2: intentionally assisted/encouraged

Prosecution will argue that Chiara intentionally assisted and encouraged June to commit Fraud. The
facts state Chiara created the invoices necessary for June to obtain the financial advantage, indicating
her intentional assistance and encouragement. Chiara’s conduct illustrates her knowledge of the
wrongfulness of the acts (He Kaw Teh), indicating her wilful support for the commission of the crime.

5. Conclusion

It is likely that Chiara will be liable for fraud as a principle in the first degree under the doctrine of
JCE. If this fails, the prosecution may attempt to pursue fraud with Chaira as a principle in the second
degree or a party to an extended joint criminal enterprise (EJCE).
Offence 5 for Chiara – physical assault under EJCE

1. Introduction

The defendant shall be charged with Physical pursuant to s 61 of the CA under the doctrine of
extended joint criminal enterprise (EJCE). Prosecution is required to prove the remaining AR and MR
elements BRD (Woolmington) and must establish that the accused foresaw the possibility of an
additional crime being committed yet continued to participate in the agreement nonetheless (Johns).

2. Party to agreement:

As above for JCE

3. Foresaw possibility of additional crime

Prosecution must prove the accused foresaw the possibility of an incidental crime occurring whether
within or outside the joint enterprise (Johns). It need only be proven that Chiara recognised the
possibility that another involved person might act with the required MR for Physical Assault
(McAuliffe). On the fact Chiara told June to ‘do whatever she could to get rid of him’. Thus, Chiara
foresaw the possibility that June could commit physical assault to achieve this, with the requisite MR.
Physical Assault was a likely consequence of the agreement reached and fell within the ambit of the
plan (Gillard).

4. Continued participation

Prosecution must prove Chiara recognised the possibility that Physical Assault would be committed
yet continued to participate in the agreement regardless. On the fact there is no indication of Chiara
withdrawing from the arrangement after she told June to ‘do whatever is necessary to get rid of Hugh’
indicating her continued participation. Prosecution will establish this element.

5. Conclusion

Prosecution will likely prove all elements of EJCE BRD.