240(1)(b) - Obtaining Credit By Deception

Question 1

Obtaining credit by deception - Section and Penalty

Answer 1

CA61; S240(1)(b)

Exceeds $1000 - 7 Years Imp
$500 to $1000 - 1 Year Imp
Under $500 - 3 Months Imp

Question 2

240(1)(b) - Elements

Answer 2

1. By deception and without claim of right
2. In incurring any debt or liability
3. Obtains credit

Question 3

Intent to deceive/ Intention

R v Morley; R v Collister;

Answer 3

• *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.

Question 4

Deception Legislation

Answer 4

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.

Question 5

Claim of Right

Answer 5

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.

Question 6

Incurring debt or liability

Answer 6

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.

Question 7

Obtains

Answer 7

CA61; S217

Obtain, in relation to any person, means obtain or retain for himself or herself or for any other person

Question 8

Credit

Answer 8

Refers to the obligation on the debtor to pay or repay, and the time given for them to do so by the creditor.

Question 9

Obligation to pay - Fisher v Raven

Answer 9

• *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.**

Question 10

Legally enforceable

Answer 10

The obligation to pay must be legally enforceable against whomever the credit is obtained (usually the defendant).

Question 11

Time to pay

Answer 11

Credit may involve varying periods of time. At the end of the period of credit, payment is expected to be made.

Question 12

Credit - 3rd person

Answer 12

It will be sufficient that the defendant obtained the extension of credit to another person.

Question 13

Provide some examples of how credit may be obtained

Answer 13

• Obtaining money on loan
• Extending existing overdraft facilities
• Renting or leasing a dwelling

Question 14

Intention to deceive (gaining credit)

Answer 14

Gaining credit is not of itself unlawful unless it is accompanied by an intent to deceive

Question 15

Timing of intention to deceive

R v McKay

Answer 15

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.**

Question 16

Intangible thing

Answer 16

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.

Question 17

Continuing Representation

Of note only

Answer 17

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.

Question 18

R v Morley

Representations

Answer 18

Representations must relate to a statement of existing fact, rather than a statement of future intention

Question 19

Delay or non-payment of debt

Answer 19

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

Question 20

Payment withheld

Answer 20

Intent to deceive does not exist where payment is withheld because of genuine dissatisfaction with the service.

Question 21

Hire purchase

Answer 21

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.

Question 22

What definitions and/or case laws should be included in your discussion of the liability of:

• 240(1)(b) - Obtaining credit by deception

Answer 22

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;

Question 23

240(1A) - legislation

Answer 23

1. Without reasonable excuse
2. Sells, transfers, or otherwise makes available
3. Any document or thing capable of being used to derive a pecuniary advantage knowing that
4. By deception and without claim of right
5. The document or thing was, or was caused to be, delivered, executed, made, accepted, endorsed, or altered.