DDC Book Flashcards
Hayes V R - pecuniary advantage
Anything that enhances the accused financial position. It is that enhancement which constitutes the element of advantage
Eg. a discount
Examples of a pecuniary advantage
– Cash from stolen goods
– clothing or cash obtained by credit or eftpos card
– a discount by using a student ID
– avoiding or deferring payment of a debt
Hayes V R - Valuable consideration
Anything capable of being valuable consideration, whether a monetary kind or of any other kind
In short money or money’s worth
Examples of valuable consideration
– Monetary payment in return for goods or services
– goods given in return for services provided
– showing a false invoice to receive payment for goods never supplied
Hayes V R - Use of a document
An unsuccessful use of a document as as much use as a successful one.
And unsuccessful use must not be acquainted conceptually with an attempted one.
The concept of an attempt relates to the use not to the ultimate obtaining of a pecuniary advantage, which is not a necessary ingredient of the offence
R v MISIC
Essentially a document is a thing which
- provides evidence or
- information or
- service as a record
Deception
A) A false representation, whether oral, documentary, or by conduct, where the person making the representation intends to deceive any other person and
– knows that it is false and a material particular or
– as reckless as to whether it is false and a material particular
B) An omission to disclose a material particular, with intent to deceive any person, in circumstances where there is a duty to disclose it
C) A fraudulent device, truck, or stratagem used with intent to deceive in person
R v Morley
Any intention to deceive requires of the deception is practiced in order to deceive the affected party. Purposeful intent is necessary and must exist at the time of the deception
R V Love
A deliberate failure to disclose some material matter by a person who has duty to disclose it will come with in definition of deception
Distinction between theft and obtaining by deception
An important distinction between theft and obtaining by deception is that in theft, the property is obtained without the owners permission and title is not passed on
Control
The power of directing, command
Pecuniary advantage
Economic or monetary advantage
Debt or liability incurred
The debt or liability incurred must be legally in forcible
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
Credit
Refers to the obligation of the debtor to pay or repay, and the time given for them to do so by the creditor.
Obligation to pay
And Fisher the Raven the court discussed credit and held that it 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 the obligation to supply services or goods
Examples of credit
Obtaining money on a loan
Extending existing overdraft facilities
Renting or leasing a dwelling
Intention to deceive
Gaining credit is not of itself unlawful unless it is accompanied by an intent to deceive
Loss
In most cases will involve financial detriment to the victim
The loss caused by deception must be in the nature of a direct loss
R V Morley – the prosecution must prove
– The loss was caused by the deception
– it was reasonably foreseeable some more than trivial loss will occur, but
– the prosecution need not prove the loss was intentionally caused
Title
A right or claim to the ownership of property
Simply means a legal right to the property
Voidable title
A title obtained by deception, fraud, duress or misrepresentation is called a voidable title
– this means that the title can be avoided by the seller
Until the title is voided, theatre folder has voidable title, and can confer a good title on anyone who requires the goods from him or her in good faith and for value.
This, as an innocent purchaser buys goods that were obtained by deception, then he or she is entitled to good title
Obtaining by deception or causing loss by deception - 240(1)(a)
– by any deception
– without claim of right
—- obtains ownership
—- Position of
—- control over
Any property,
Any privilege,
any Service,
pecuniary advantage,
Benefit,
Valuable consideration,
– directly or indirectly
Define deception
(A) A false representation, whether oral, documentary, or by conduct, where the person making the representation intends to deceive any other person and
– knows that it is false in a material particular or
– as reckless to whether it is false in a material particular
(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
R V Morley – deception
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
Obtains
Goods are obtained by the defendant of the goods come into their control, even though they may not have physical possession of them.
Property may be obtained if a deception made to one person means that the property is then actually obtained from another person, provided that the deception operated on the mind of the person giving up the property.
Control over
The power of directing, command
Privileges/benefit
Special right or advantage
Dishonestly taking or using a document – 228(1)
– Dishonestly
– without claim of right
– (a) takes or obtains
OR
– (b) uses or attempts to use
– any document
– with intent to obtain any
Property
Service
Pecuniary advantage
Valuable consideration
Dishonestly
In relation to an act or omission,
means done or omitted without a belief that there was expressed or implied consent to,
or authority for,
the act or omission from a person entitled to give such consent or authority
Claim of right
In relation to any act means a belief at the time of the act and a proprietary or possessory right to the property in relation to which the offences 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 again which the offence has alleged to have been committed
Taking
For tangible property, theft is committed by a taking when the offender moves the property or causes it to be moved
Obtains
Obtain or retain for himself herself or any other person
Uses/attempts to use
Use” can include a single action, such as handing over of the document to its intended recipient, or the continuing use of a document
Hayes V R - uses / attempts to use
An unsuccessful use of a document is as much use as a successful one.
And unsuccessful use must not be acquainted conceptually with an attempted one.
The concept of an attempt relates to the use not to the ultimate obtaining of a pecuniary advantage, which is not a necessary ingredient of the offence. Because the use does not have to be a successful one it may be difficult to draw the clear line between the use and then attempted use
R V MISIC
Essentially a document is a thing which provides evidence or information or serves as a record
Define document
Document means a document, or part of the document, and any form, and on clothes without limitation
(A) – any paper or other material used for writing or printing that is marked with matter capable of being read
(B) – any photograph, or any photo graphic negative, plate, slide, film, or microfilm, or any photo Tastic negative or
(C) – any desk, type, wire, soundtrack, card, or other material or device in or on which Information, Sounds, or other data are recorded, stored, with a temporary or permanent, or embodied so as to be capable, with or without the aid of some other equipment, of being reproduced
(D) - 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
(E) – any material derived, with a directly or by mains of any equipment, recording or storing or processing information
Property
Any real personal property
In the estate or interest in any real or personal property
Money, electricity and any debt
And any other thing and action
And any other right or interest
R V Cara - service
Service is limited to financial or economic value and includes privileges or benefits
R V Hayes - Pecuniary advantage
Anything that enhances the accused financial position. It is that enhancement which constitutes the element of advantage
Hayes V R - Valuable consideration
Anything capable of being valuable consideration, whether of a monetary kind or of any other kind – in short money or money’s worth
Obtaining by deception or causing loss by deception - 240(1)(b)
– by any deception
– without claim of right
– and incurring any debt or liability
– obtains credit
Obtaining by deception or causing losses by deception – 240(1)(d)
– by any deception
– without claim of right
– causes loss to any other person
Debt or liability incurred
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
Credit
Refers to the obligation of the data to pay or repay, and the time given for them to do so by the creditor.
Credit is an intangible thing. Credit Obtained must be in respect of a monetary obligation
Morley V R – loss
The loss alleged by the victim must have been induced by, or caused and 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
Prosecution must prove that
– The loss was caused by the deception
– it was reasonably Foreseeable some more than trivial loss would occur, but need not prove the loss was intentionally caused
Thus, there must be loss to any other person, but there is no requirement that there be any benefit to anyone
Guilty knowledge – semester and Brookebanks
Knowing or correctly believing. The defendant may believe something wrongly, but cannot know something that is false
Semester and Brookbanks – debt or liability
The debt or liability must be legally enforceable.
This means that if the contract is void or a legal there will be no offence
Semester and Brooke Banks – thing capable of being used to derive a pecuniary advantage
The thing must be tangible and must be capable of being used to drive a pecuniary advantage
R V Cox - possession
Physical element – is actual or potential physical custody or control.
The second often described as the mental element is a combination of knowledge and intention
Knowledge in the sense of an awareness by the accused that the substance is in his possession and an intention to exercise possession
