240(1)(d) - Causing Loss By Deception

Question 1

Causing Loss By Deception

Section and Penalty

Answer 1

CA61; S240(1)(d)

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

Question 2

240(1)(d) - Elements

Answer 2

1. By deception and without claim of right
2. Causes loss to any other person

Question 3

Deception Legislation

Answer 3

CA61; S240(2):

(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 4

Claim of Right

Answer 4

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 5

Causes Loss

Answer 5

In most cases will involve financial detriment to the victim. Must be a direct loss.

• *R v Morley:**
• *“The loss alleged by the victim must have been induced by, or caused in reliance, upon the deception. But the deception need not be the only operative factor, so long as it played a material part in occasioning the loss.”**

Question 6

R v Morley

Intent to Deceive

Answer 6

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.

Question 7

R v Morley

Representations

Answer 7

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

Question 8

To any other person

Normal definition and who it includes

Of note only

Answer 8

Gender neutral. Proven by judicial notice or circumstantial evidence.

CA61; S2:
Includes:

• The Crown and any public body or local authority, and
• Any board, society, or company, and
• Any other body of persons, whether incorporated or not, and the inhabitants of the district of any local authority in relation to such acts and things as it or they are capable of doing or owning.

Question 9

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

• 240(1)(d) - causing loss by deception

Answer 9

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 causes: the accused must cause the loss.

• *Definition of loss:** will involve financial detriment to the victim; the loss must be in the nature of a direct loss
• *R v Morley** - The loss alleged must have been induced by, or caused in reliance upon, the deception etc.

Definition of a person/victim: person - S2 CA61 as proven by CE or JN; victim - S4 VRA 2002; incorporates not only real people, but also companies and other organisations.

Question 10

240(1A) - legislation

Answer 10

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.