240(1)(b) - Obtaining Credit By Deception Flashcards
Obtaining credit by deception - Section and Penalty
CA61; S240(1)(b)
Exceeds $1000 - 7 Years Imp
$500 to $1000 - 1 Year Imp
Under $500 - 3 Months Imp
240(1)(b) - Elements
- By deception and without claim of right
- In incurring any debt or liability
- Obtains credit
Intent to deceive/ Intention
R v Morley; R v Collister;
- *R v Morley:**
- *An intention to deceive requires that the deception is practised in order to deceive the affected party. Purposeful intent is necessary and must exist at the time of the deception.**
In a criminal law context there are two specific types of intention in an offence. Firstly there must be an intention to commit the act and secondly an intention to get a specific result.
R v Collister - the defendant’s intentions can be inferred from the circumstances etc.
Deception Legislation
CA61; S240(2)
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 a material particular; or
(ii) is reckless as to whether it is false in a material particular; or
(b) an omission to disclose a material particular, with intent to deceive any person, in circumstances where there is a duty to disclose it; or
(c) a fraudulent device, trick, or stratagem used with intent to deceive any person.
Claim of Right
S2 CA61
In relation to any act, means a belief at the time of the act in a proprietary or possessory right in property in relation to which the offence is alleged to have been committed, although that belief may be based on ignorance or mistake of fact or of any matter of law other than the enactment against which the offence is alleged to have been committed.
Incurring debt or liability
The debt or liability (incurred) must be legally enforceable. This means that if the contract is void or illegal there will be no offence.
‘Debt’ means money owing from one person to another.
‘Liability’ means a legally enforceable financial obligation to pay, such as the cost of a meal.
Obtains
CA61; S217
Obtain, in relation to any person, means obtain or retain for himself or herself or for any other person
Credit
Refers to the obligation on the debtor to pay or repay, and the time given for them to do so by the creditor.
Obligation to pay - Fisher v Raven
- *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. Credit does not extend to an obligation to supply services or goods.**
Legally enforceable
The obligation to pay must be legally enforceable against whomever the credit is obtained (usually the defendant).
Time to pay
Credit may involve varying periods of time. At the end of the period of credit, payment is expected to be made.
Credit - 3rd person
It will be sufficient that the defendant obtained the extension of credit to another person.
Provide some examples of how credit may be obtained
- Obtaining money on loan
- Extending existing overdraft facilities
- Renting or leasing a dwelling
Intention to deceive (gaining credit)
Gaining credit is not of itself unlawful unless it is accompanied by an intent to deceive
Timing of intention to deceive
R v McKay
The intention to deceive is essential and must exist at the time when the deception is perpetrated.
- *R v Mckay:**
- *On appeal it was held that the credit had been obtained on booking in but at that time the accused did not possess an intent to deceive.**
Intangible thing
Credit is an intangible thing. Credit obtained must be in respect of a monetary obligation. If the defendant obtains a non-monetary benefit, the appropriate charge may be under 240(1)(a), depending on the facts of the case.
Continuing Representation
Of note only
A representation, whether by words or conduct, may be of continuing effect.
Thus, entry into a restaurant and ordering a meal would usually be a representation that one will follow the normal practice and pay for the meal at the appropriate time. If, during the course of the meal, a diner decides to avoid payment, the continuing representation of an intention to pay will become false and any subsequent obtaining of food will come within s240.
R v Morley
Representations
Representations must relate to a statement of existing fact, rather than a statement of future intention
Delay or non-payment of debt
Intent to deceive is not disclosed merely because there is:
- delay or non-payment of the debt, or
- an inability to perform a bona fide intention
Payment withheld
Intent to deceive does not exist where payment is withheld because of genuine dissatisfaction with the service.
Hire purchase
Where goods are obtained on hire purchase by a false representation, the offence committed 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 fraudulently obtained on hire purchase.
S240(1)(c) - where a person has been induced to deal with a document there will ordinarily be a benefit or a loss to someone resulting from that. Thus, a charge under another part of this section will usually be more appropriate.
What definitions and/or case laws should be included in your discussion of the liability of:
- 240(1)(b) - Obtaining credit by deception
Definition of intent: 2 specific types of intent; the defendant must intend to obtain; and he or she must intend to obtain by the deception; there must be an intent to deceive; R v Collister;
Definition of deception: CA61, S240(2); R v Morley; R v Mallet; S&B
Definition of WCOR: CA61, S2;
Definition of debt: money owing from one person to another
Definition of credit: Fisher v Raven - the obligation on the debtor to pay or repay and the time taken for them to do so by the creditor;
Debt or liability incurred: the debt or liability incurred must be legally enforceable. This means that if the contract is void or illegal there will be no offence.
Timing of intent to deceive: R v McKay - on appeal it was held that the credit had been obtained on booking in but at that time the accused did not possess an intent to deceive;
Definition of a person/victim: person - S2 CA61 as proven by CE or JN; victim - S4 VRA 2002;
240(1A) - legislation
- Without reasonable excuse
- Sells, transfers, or otherwise makes available
- Any document or thing capable of being used to derive a pecuniary advantage knowing that
- By deception and without claim of right
- The document or thing was, or was caused to be, delivered, executed, made, accepted, endorsed, or altered.
