1 Flashcards
Dishonestly taking or using a document (uses) - elements only
Section 228(1)(b), Crimes Act 1961
- dishonestly
- without claim of right
- Uses / attempts to/ use
- any document
- with intent to obtain any: pecuniary advantage, property, service, valuable consideration.
Dishonestly:
Act or omission done without belief that there was any consent or authority to do so.
Hayes V R: the question is whether belief is actually held, not whether belief was reasonable.
Without claim of right:
No belief in possessory or proprietary right at time.
Uses or attempts to use any document:
Use: a single action or continued use.
Hayes v R: an unsuccessful use of a document is as much a use as a successful one.
Any Document:
R v Misic - a document is a thing which provides evidence of information or serves as a record.
With intent to obtain any property/pucuniary advantage/valuable consideration/service:
Intent:
R v collister - intent inferred from actions and words at time of/before/after and surrounding circumstances .
Property: real and personal property, estate or interest.
Service: limited to financial or economic value - excl privilege or benefit.
Pecuniary advantage: Hayes v R essentially anything that enhances the accused’s financial position.
Valuable consideration: Hayes v R: anything capable of being a valuable consideration.
Obtains by Deception or causes loss by deception (ownership)
(elements only)
S240(1)(a) Crimes Act 1961
- By deception
- without claim of right
- obtains ownership/possession/control over
- any property/privilege/service/pecuniary advantage/benefit/valuable consideration, directly or indirectly.
By deception:
Deception: a false representation oral/documentary/conduct, made with intent to deceive and known/reckless if false material particular ‘
R v Morley: intention to deceive requires purposeful intent at the time the deception is practiced.
Without claim of right:
No belief at time to possessory or proprietary right.
Obtains ownership/possession/control over:
Ownership: goods come under control, don’t have to physically have them.
Possession: r v cox - 2 elements required men’s and actus reus
Control: power of directing or commanding. Do not need to possess.
Property/service/pecuniary advantage/benefit/valuable consideration/privilege:
Property - real and personal property, estate or interest
Service: R v Cara - service is limited to financial or economic value excl privilege or benefit.
Pecuniary advantage:
Hayes v R: anything that enhances the accused’s financial position.
Valuable consideration: Hayes v R: anything capable of being a valuable consideration. Money or monies worth.
Privilege: special right or advantage
Obtain by Deception (service)
(Elements only)
S240(1)(b) CA 61
- By deception
- without claim of right
- In occurring debt or liability
- obtains credit
By deception:
a false representation oral/documentary/conduct, made with intent to deceive and known/reckless if false material particular
R v Morley: intention to deceive requires purposeful intent at the time the deception is practiced.
Without claim of right:
No belief at time to possessory or proprietary right.
Incurring debt or liability:
Debt: money owing from one person to another.
Liability:
Legally enforceable financial obligation
Debt or liability must be legally enforceable. If contract is void or illegal there is no offence.
Obtains credit:
Obtains - obligation to pay or repay at the time received. This obligation must be legally enforceable.
Credit: intangible, must relate to monetary obligation.
Causing Loss by Deception
(Elements only)
S240(1)(d) CA 61
- By deception
- without claim of right
- Causes loss to any other person
Deception: a false representation oral/documentary/conduct, made with intent to deceive and known/reckless if false material particular or an omission to disclose a particular where there is a duty to do so or a fraudulent device/trick/stratagem.
R v Morley: intention to deceive requires purposeful intent at the time the deception is practiced.
Without claim of right:
No belief at time to possessory or proprietary right.
Cause loss to any other person:
Loss - financial detriment
R v Morley: loss must have been caused by deception. Only has to play a part in the loss
To any other person.
Hayes v R - attempts to use a document
(Attempts elements)
Unsuccessful use of a document is much as attempt as a successfully one
Hayes v R - pecuniary advantage
(Pecuniary advantage element)
Anything that enhances the accused’s financial position.
Hayes v R - valuable consideration
(Valuable consideration element)
Anything capable of being valuable consideration, money or monies worth.
R v Morley - deception
(Deception element)
Intention to deceive requires purposeful intent at the time the deception is practiced.
R v Morley - Loss
(Causes Loss element)
Loss must have been caused by deception. Only has to play a part in the loss.
R v Cara
Service is limited to financial or economic value, excluding privilege or benefit.
R v Cox (possession)
Service is limited to financial or economic value, excluding privilege or benefit.
R v Misic
A document is a thing which provides evidence of information or serves as a record
R v Collister
(Intent)
Words and actions at the time of/before/after, nature of offence and circumstantial evidence show intent.
Definitions
Dishonestly
S217 CA 61
Done without belief in consent from a person with authority
Definitions
Without claim of right
S2 CA 61
No belief ion possessory or propietary right to property
Definitions
Uses
S2 CA 61
A single action or continuing use
Definitions
Intent
Intent has two parts:
Intent to commit the act and an intent to get a specific result
Definitions
Property
Real and personal property, estate or interest
Definitions
Attempts
Hayes v R: Unsuccessful use of a document is much as a attempt as a successful one
Definitions
Document
S217 CA 61
A document, or any part of a document, in any form, and includes without limitations:
- any paper or other material used for writing or printing that is marked with matter capable of being read.
- any photograph, or any photographic negative, plate, slide, film, or microfilm, or any photo static negative.
- any disc, tape, wire, sound track, card, or other material or device in or on which information, sounds, or other data are recorded, stored (whether permanently or not)
- any material by means of which information is supplied, whether directly or by means of any equipment, to any device used for recording or storing or processing information or
- any material derived, whether directly or by means of any equipment, from information recorded or stored or processed by any device used for recording or storing or processing information.
Definitions
Service
Service is limited to financial or economic value, excluding privilege or benefit
Definitions
Deception
S240 CA 61
A false representation - either by oral / documentary / conduct made with intent to deceive and known / or reckless if false in material particular OR an omission to disclose a particular where there is a duty to do so OR a fraudulent device, trick, or stratagem used with intent to deceive any person.
R v Morley - intention to deceive required purposeful intent at the time the deception is practiced.
Definitions
Ownership
Goods come under control, don’t have to physically have them
Definitions
Control
Goods come under control, don’t have to physically have them
Definitions
Privilege
Special right or advantage
Definitions
Pecuniary advantage
Hayes v R - something that enhances teh accused’s financial position
Definitions
Debt
Money owing from one person to another
Defi nitions
Liability
Legally enforceable financial obligation - debt or liability must be legally enforceable.
Definitions
Obtains
Obligation to pay or repay at time received. This obligation MUST be legally enforceable.
Definitions
Credit
Intangible, must relate to monetary obligation
Definitions
Loss
Financial detriment
R v Morley - loss must have been caused by deception, only has to play a part in the loss.
Deception - what is required to be proved
- that there was an intention to deceive
- that there was a representation by the defendant
- that the representation was false; and that the defendant either, knew it to be false in a material particular, or was reckless whether it was false in material particular
Knowledge can be established by
- an admission
- implication from the circumstances surrounding the event
- propensity evidence
Examples of a privilege or benefit
- using another persons gym membership car so they can use the gym
- access to medical services
- the withdrawal of an assault charge
A reduction in sentence for an offence
Where the benefit or privilege does not involve money, there does not need to be financial loss or injury to the person who has been defrauded
What is the difference between theft and obtaining by deception
Theft is when the property is obtained without the owners permission and title is not passed on
Examples of pecuniary advantage
- cash form stolen goods
- clothing or cash obtained by a credit or eftpos card
- a discount
- avoiding or deferring a payment of a debt
What must you prove for obtaining credit by decemtpion 240 (1)(b)
- by deception and without claim of right
- in occurring any debt or liability
- obtained credit
Fisher v Raven
Credit refers to the obligation on the debtor to pay or repay, and the time given for them to do so by the creditor
R v Mckay - 240(1)(b)
Defendant must have intention to deceive at Time of incurring the credit
Proof if inducement
Inducement should be proven whenever possible by direct evidence. In practice, victim of the deception is usually questioned on:
- that the false representation was believed, and
- that it was the consequence of that belief that the victim parted with his/her monies
R v Laverty - inducement (240(1)(c)
It is necessary for the prosecution to prove that the person parting with the property was induced to do so by the false representation made.
Deliver over/execute/endorse/alter/accept definitions
Deliver over - surrender up someone or something
execute - put a course of action into affect
endorse - write or sign on a document
alter - change in character or composition
accept - receive something
What do you need to prove for loss by deception 240(1)(d)
- the loss was caused by deception
- it was reasonably foreseeable some more than trivial loss would occur, but
- need not prove the loss was intentionally caused
228(1)(a) and 228(1)(b)
- Dishonestly without claim of right, takes or obtains any document
- dishonestly without claim of right, uses or attempts to use a document
Examples for oral/conduct/documentary deception
- oral
Verbally claiming to own goods that are in fact subject to hire agreement - conduct’
Representing oneself to be a collector for charity by appearing to be carrying an official collection bag - documentary
Presenting false certificate of qualification
Continuing effect
In many cases a representation by words or conduct may have a continuing effect. For example, entering a restaurant and ordering diner represents that the diner will follow the normal practice and pay for their food. If during the course of dinner, the diner decides to avoid that payment, the continuing representation will become false, and the obtaining of food will come within s240.
What is the distinction between theft and obtaining by deception
In theft, the property is obtained without the owners permission and title is not passed on whereas in deception it is.
Obligation to pay - Fisher v Raven - obtains element (240(1)(b)
Credit refers to the obligation on the debtor to pay or repay, and the time given for them to do so by the creditor
Delay or non-payment of debt
Intent to deceive is not disclosed merely because there is:
- delay or non-payment of teh debt, or
- an inability to perform the bonafide intention
Hire purchase re deception
Where goods are obtained on hire purchase by a false representation, the offence is deception.
However, if the offender later sells the goods to another, the offender commits theft by conversion. The offender never receives title for goods fraudulantley obtained on hire purchase.
Proof of inducement
The inducement should be proved whenever possible by direct evidence from the person alleged to have been defrauded. In practice the victim of the deception is usually questioned to elicit answers proving:
- that the false representation was believed, and
- that it was the consequence of that belief that the victim parted with his/her money.
R v Laverty
It is necessary for the prosecution to prove that the person parting with the property was induced to do so by the false representation made
When assessing probative value of propensity evidence, the judge may consider..
-s43(3) EA 06
- the frequency width which the acts or omissions, events/circs
- the connection in time between acts/omissions
- the extent of similarity between the acts/omissions
- the number of persons making allegations against the defendant
Legal title
Legal title obtained through deception is still legal title.
Conversely, if the voidable title has already been voided by the complainant, leaving the fraudulent offender with mere possession only, then legal title has not been obtained.
Hire purchase - legal title
Where goods purchased on hire purchase, legal title is not obtained until the full amount is paid, the title remains with the owner.
Therefore if a deposit is made on a hire purchase through false representation, then only possession is obtained. If a person buying the goods knows they are fraudulent when on hire purchase they can be liable of receiving and has no title.
Two core elements of proof required under s 220 CA 61 (theft of person in special relationship)
- that he or she have received property on terms or in circumstances which, to the defendant’s knowledge, affect what the defendant may do with the property or its proceeds or require the defendant to act in accordance with the requirements of another person, and
- that the defendant intentionally departed from the relevant obligation.
Forgery, section 256(1) CA 61
Everyone is liable to imprisonment for a term not exceeding 1- years who makes a false document with the intention of using it to obtain any property, privilege, service, pecuniary advantage, benefit, or valuable consideration.
What is a false document defined under 255 CA 61
- whole of which or any part be made by any person who did not make it or a fictitious person.
To have been forged it must meet the definitions of false and document.
Eg. A print of a forged painting is not forgery, only the original forgery claiming to be an unforged original constitutes forgery.
Using a forged document 257 CA 61
Everyone is liable to imprisonment for a term not exceeding 10 years who, knowingly a document to be forged,
(A) - uses, the document to obtain any property, privilege, service, pecuniary advantage, benefit, or valuable consideration or,
(B) - uses, deals with, or acts upon any document as if it were genuine, or
(C) - causes any other person to use, deals with, or act upon it as if it were genuine.
Altering a document 258 CA 61
Everyone is liable to a term not exceeding 10 years who with intent to obtain by deception, any property, privilege, service, pecuniary advantage, benefit, or valuable consideration, or to cause loss to any other person.
(A) - alters, conceals, or destroys any document, or causes any document to be altered/concealed/destroyed, or,
(B) - makes a document or causes a document to be made that is, in whole or in part, a reproduction of any other document.
The offence is complete as soon as the document is made with the required intent.
Forgery vs altering a document etc reproducing a document..
The difference between the offences of forgery and altering a document or reproducing a document rest in the varying definitions of a document and intent.
Forgery - an intent to deceive only required, not an intent to obtain by deception.
Altering a document - you must prove that the offender intended to obtain by deception.
Any document can be altered/damaged/reproduced in the charge of altering. However, in a charge of forgery the document must be a false document as defined in 255 CA 61
Computer crime - s248 CA 61 what does access mean
In relation to any computer system, means instruct, communicate with, store data in, receive data from, or otherwise make use of any of the resources of the computer system.
Computer crime - s248 CA 61 what does computer system mean
A computer or,
- 2 or more interconnected computers, or,
- any communication link between computers or to remote terminals or another device, or,
-2 or more interconnected computers combined with any communication link between computers or to remote terminals or any other device, and,
- includes any part of the items described above and all related input, output, processing, storage, software, or communication facilities, and stored data
Does a SFO have a power of arrest
No
What is the threshold of a SFO
2 Million dollars
What are 4 potential specialists that may be used
- MBIE
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