14. Deception Flashcards
Define “obtains”
Obtain or retain for themselves or any other person.
Includes when a person “retains” items obtained by other means (lawfully or not).
Define “property”
Includes real and personal property, and any estate or interest in any real or personal property, money, electricity, and any debt, and any thing in action, and any other right or interest.
Define “service”
Service is limited to financial or economic value and excludes privileges or benefits (R v Cara).
Define “pecuniary advantage”
Cite relevant case law
Provide examples
Economic or monetary advantage.
Hayes v R - Anything that enhances the accused’s financial position.
Includes: cash stolen from goods, clothing/cash obtained by credit card/discounts/avoiding payment of debts.
Define “valuable consideration”
Cite relevant case law
Provide examples
Hayes v R
Anything capable of being valuable consideration - whether of a monetary kind or any other.
In short, money, or money’s worth.
For example: monetary payment in return for goods, goods given in return for services, issuing false invoice to receive payment of goods not delivered.
Define “dishonestly”
What belief needs to be held?
An act or omission done without belief in express/implied consent /authority to do the act from someone entitled to give such consent.
Belief does not need to be correct or reasonable, just held on an “honest belief”
Define “claim of right”
What belief needs to be held?
A belief at the time of the act in a proprietary or possessory right in the property.
May be based off ignorance or mistake.
Belief does not need to be correct or reasonable, just held on an “honest belief”
Define “document”
Cite relevant case law.
Any item that provides evidence of information or serves as a record (such as a computer disk).
R v Misic.
Define “deception” [s240(2)CA61]
s240(2)CA61 - deception means:
(a) a false representation, whether oral, documentary, or by conduct where the person making the representation intends to deceive any other person, AND
(i) knows that it is false in material particular, OR
(ii) is reckless as to whether it is false in material particular, OR
(b) an omission to disclose to material particular with intent to deceive any person (where a duty to disclose exists) OR
(c) a fraudulent device, trick, strategem used with intent to deceive any person.
Define “representation”
Cite the relevant source.
Must be capable of being false so it must contain a proposition of fact.
Simester and Brookbanks
Define “knowing”.
Cite the relevant source.
Correctly believing - Simester and Brookbanks
Define “material particular”
Something important, or something that matters.
Define “recklessness”
A conscious taking of an unjustifiable risk.
Define “omission”
Inaction. Can either be a conscious decision, or not giving any thought to the matter.
Define “privilege/benefit”
Provide examples
A special right or advantage, not limited to benefits of a pecuniary nature.
I.e. using another person’s gym membership, access to medical services? Withdraw charge of assault, reduction in sentence for an offence.
Define “control”
The power of direction, command.
Define “debt”
Money owing from one person to another. Must be legally enforceable.
Define “liability”
Provide an example
A legally enforceable financial obligation to pay.
I.e. cost of a meal at a restaurant.
Define “credit”
Give examples
An obligation on the debtor to pay or repay.
I.e. obtaining money on a loan, extending overdraft facilities, renting/leasing a dwelling.
Define “loss”.
Cite relevant case law
Financial detriment.
R v Morley - loss is defined by how much the complainants position has been diminished/impaired
Must be “direct loss”, not indirect - loss of anticipated profits, loss of a bargain etc.
Define “ownership”
Synonymous with “title”
Define “title”
A right or claim to the ownership of property.
Define “voidable title”
Title that can be voided by the seller.
What does s228(1)(a) of the Crimes Act 1961 relate to?
What are the elements of the offence?
What is the maximum penalty?
Examinable liability
Dishonestly taking/obtaining a document.
- Dishonestly
- Without claim of right
- Takes OR obtains
- Any document
- With intent to obtain any, property OR service OR pecuniary advantage OR valuable consideration.
7 years imprisonment.
What does s228(1)(b) of the Crimes Act 1961 relate to?
What are the elements of the offence?
What is the maximum penalty?
Examinable liability
Dishonestly uses/attempts to use a document.
- Dishonestly
- Without claim of right
- Uses OR attempts to use
- Any document
- With intent to obtain any, property OR service OR pecuniary advantage OR valuable consideration.
7 years imprisonment.
What does s240(1)(a) of the Crimes Act 1961 relate to?
What are the elements of the offence?
What is the maximum penalty?
Non-examinable liability
Obtains by deception - Directly/Indirectly.
- By any deception
- Without claim of right
- obtains, ownership OR possession of OR control over
- any, property OR privilege OR service OR pecuniary advantage OR benefit OR valuable consideration
- Directly OR indirectly.
Variable imprisonment.
7 years - over $1000
1 year - between $500 - $1000
3 months - under $500
What does s240(1)(b) of the Crimes Act 1961 relate to?
What are the elements of the offence?
What is the maximum penalty?
Non-examinable liability
Obtains by deception - credit
- By any deception
- Without claim of right
- in incurring any, debt OR liability
- obtains credit.
Variable imprisonment.
7 years - over $1000
1 year - between $500 - $1000
3 months - under $500
What does s240(1)(d) of the Crimes Act 1961 relate to?
What are the elements of the offence?
What is the maximum penalty?
Non-examinable liability
Obtains by deception - cause loss
- By any deception
- Without claim of right
- Causes loss to any other person
Variable imprisonment.
7 years - over $1000
1 year - between $500 - $1000
3 months - under $500
Case law:
Hayes v R (Pecuniary advantage)
A pecuniary advantage is anything that enhances the accused’s financial position.
It is that enhancement which constitutes the element of advantage.
Case law
Hayes v R (valuable consideration)
A valuable consideration is anything capable of being valuable consideration, whether monetary kind or of any other kind.
In short, money or money’s worth.
Case law:
Hayes v R (uses/attempts to use)
An unsuccessful use of a document is as much use as a successful one.
The attempt relates to the “use” itself, rather than actually gaining a pecuniary advantage (not an element of the offence).
Because the use does not have to be successful, it may be difficult to draw a clear line between use and attempted use.
Case law:
R v Misic
Essentially, a document is a thing which provides evidence or information or serves as a record.
Case law
R v Morley (intent to deceive)
An intention to deceive requires that the deception is practiced in order to deceive the affected party.
Purposeful intent is necessary and must exist at the time of deception.
Case law:
R v Morley (loss)
Prosecution must prove loss was caused by deception and that it was reasonably foreseeable more than a trivial loss would occur.
Need not prove loss was intentionally caused.
Loss must be to any other person, but there is no requirement there be any benefit to anyone.
Case law:
R v Love
A deliberate failure to disclose some material matter by a person who has a duty to disclose it will come within the definition of deception.
When is tangible property “taken” under s228(1)(a) Crimes Act 1961 (dishonestly take document)
When the offender moves the property or causes it to be moved.
Is money included under the definition of property?
Yes.
Does the accused need to be in possession of the property to be successfully charged under s240(1)(a) Crimes Act 1961? (Obtains by deception)
No. It may be sufficient that the defendant has exercised control of the property through an agent.
What is the difference between theft and obtains by deception?
Theft
Property is obtained without the owners permission. Offender gains possession of the property, but not the title.
Obtains by deception
Property is obtained with the owners permission (albeit under false pretenses). Offender gains possession of the property, AND voidable title.
Under s240(1)(b) of the Crimes Act 1961 (obtains by deception - credit), must the “obtains” occur contemporaneously with the requisite Mens rea?
Provide an example.
Yes, the act and mens rea must occur contemporaneously. The offence is not complete if the person lawfully obtained a loan, and then later avoids payment on that loan (either by honest or dishonest means).
I.e. defaulting on a loan because they can no longer afford it OR payment is withheld due to dissatisfaction with the service provided.
Under s240(1)(d) Crimes Act 1961 (obtains by deception, cause loss), does the person suffering loss need to be the one deceived?
No. There is no requirement that the person who suffers the loss be the person who is deceived.
What must be proved to be classed as “deception”?
- Intent to deceive, AND
- There was a representation by the defendant, AND
- The representation was false, AND
- either the defendant:
a) knew it to be false in material particular, OR
b) was reckless whether it was false in material particular.
Is silence/non-disclosure regarded as a “representation”?
Generally no; however, some circumstances where it will.
I.e. Police v Dronjak - accused did not correct cashier that he was scanning the wrong barcode.
Under s240(2) Crimes Act 1961 (deception); what must be proved for a “failure to disclose”
- There was some material particular not disclosed, AND
- The defendant had a duty to disclose it, AND
- The defendant failed to perform that duty.
Does a thief ever get title to any property stolen?
No. A thief never gets title, only possession.
A deceiver gets possession AND voidable title.
Once a deceiver obtains possession and title of some property from a victim, can they confer good title of the property to another?
What is the legislation that provides legal protection to a receiver?
Yes, provided that the title is conferred/transferred before the victim voids the voidable title.
If the victim voids the title before it is passed on to another party, the property and title, still belong to the victim.
s246(4) Crimes Act 1961 - receiving after restoration to owner.
When does title transfer from the seller to the buyer under “hire purchase” agreements (I.e. Afterpay).
When the full amount has been paid.
How can you void title?
Seeking some judicial determination either through civil claim at the Disputes Tribunal or Small Claims Tribunal
