Deception Flashcards
Dishonestly Taking a Document liability
Dishonestly taking or using a document Section 228(1)(a) Crimes Act 1961
- dishonestly
- without claim of right
- takes OR obtains
- any document
- with intent to obtain any:
Property
Service
Pecuniary advantage
Valuable consideration
Dishonestly using a document liability
Dishonestly taking or using a document Section 228(1)(b) Crimes Act 1961
Dishonestly Without claim of right Uses OR attempts to use Any document With Intent to obtain any - property - service - pecuniary advantage - valuable consideration
Obtaining by deception or causing loss by deception (1)(a) liability
Obtaining by deception or causing loss by deception Section 240(1)(a) Crimes Act 1961
- by any deception
- without claim of right
- obtains:
Ownership or
Possession of, or
Control over - any property, or any privilege, service, pecuniary advantage, benefit, or valuable consideration.
- directly or indirectly.
(salvation army bucket)
Obtaining by deception or causing loss by deception (1)(b) liability
Section 240 (1)(b) Crimes Act 1961
- by any deception
- without claim of right
- in incurring any debt OR liability
- obtains credit
(dine and dash)
Interpretation of obtains
Obtain, in relation to any person, means to obtain or retain for himself or herself or for any other person.
Service
Service is limited to financial or economic value and excludes privileges or benefits.
Hayes v R (pecuniary advantage)
A pecuniary advantage is anything that enhances the accused financial position. It is that enhancement which constitutes the element of advantage
(Pecuinary advantage)
Examples of pecuniary advantage
- cash from stolen goods
- clothing or cash obtained by credit or EFTPOS card
- a discount (by using a student ID card)
- avoiding or deferring payment of a debt
Hayes v R (Valuable consideration)
A valuable consideration is anything capable of being valuable consideration, whether of a monetary kind or of any kind; in short money or money’s worth
(Valuable consideration)
Examples of valuable consideration
- monetary payment in return for goods or services.
- goods given in return for services provided.
- issuing a false invoice to receive payment for goods never supplied
Dishonestly
Dishonestly, in relation to an act or omission, means done or omitted without a belief that there was express or implied consent to, or authority for, the act or omission from a person entitled to give such consent or authority
Claim of right
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
Taking
For tangible property, theft is committed by a taking when the offender moves the property or causes it to be moved.
Hayes v R (use vs attempted use)
An unsuccessful use of a document is as much use as a successful one. Because the use doesn’t have to be a successful one, it may be difficult to draw a line between use and attempted use
(Uses or attempts to use)
Document
document means a document, or part of a document, in any form; and includes, without limitation,—
(a)
any paper or other material used for writing or printing that is marked with matter capable of being read; or
(b)
any photograph, or any photographic negative, plate, slide, film, or microfilm, or any photostatic negative; or
(c)
any disc, tape, wire, sound track, card, or other material or device in or on which information, sounds, or other data are recorded, stored (whether temporarily or permanently), or embodied so as to be capable, with or without the aid of some other equipment, of being reproduced; or
(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; or
(e)
any material derived, whether directly or by means of any equipment, from information recorded or stored or processed by any device used for recording or storing or processing information
Document (short definition)
A document includes any item that provides evidence of information or serves as a record (such as a computer disc).
R v Misic
Essentially a document is a thing which provides evidence or information or serves as a record
(Document)
False representation
You must prove: There was an intent to deceive. That there was a false representation by the defendant. That the representation was false; and the defendant either: Knew it to be false in a material particular OR was reckless whether it was false in a material particular.
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.
(Intent to deceive)
False representation - orally
Verbally claiming to own goods that are in fact subject to a hire purchase agreement.
False representation - by conduct
Representing oneself to be a collector for charity by appearing to be carrying an official collectors bag
False representation - documentary
Presenting a false certificate of qualification, or completing a valueless cheque on an account with no funds
Knowledge for false representation
- an admission
- implication from the circumstances surrounding the event
- propensity evidence
Material particular
A matter will be a ‘material particular’ if it is something important or something that matters
Duty to disclose
Along with showing intent to deceive, s240(2)(b) requires you to show that there was some material particular that was not disclosed, that the defendant was under a duty to disclose and that the defendant failed to perform that duty.
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
(Duty to disclose)
Fraudulent device, trick, or stratagem
The scheme or trick must be fraudulent which means dishonest in the traditional moral sense. Could be a pyramid moneymaking scheme.
Device, trick, stratagem defined.
Device - A plan, scheme or trick.
Trick - An action or scheme undertaken to fool, outwit or deceive.
Stratagem - A cunning plan or scheme especially for deceiving an enemy, or trickery
Credit
There must be an obtaining of credit as a result of incurring any debt or liability. The credit obtained must be in respect of a monetary obligation.
Obligation to pay
in Fisher v 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 an obligation to supply services or goods.
Legally enforceable
The obligation to pay must be legally enforceable against whomever the credit is obtained.
Time to pay
At the end of 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. examples - obtaining money on a loan, extending existing overdraft facilities, renting or leasing a dwelling.
Timing of intention to deceive
The intention to deceive is essential and must exist at the time when the deception is perpetrated. So when the credit is obtained, a later decision not to repay is insufficient.
Payment withheld
Intent to deceive does not exist where payment is withheld because of genuine dissatisfaction with the service
Induces
To persuade, bring about or give rise to.
Proof of the inducement
- that the false representation was believed, and
- that it was the consequence of that belief that the victim parted with his or her money
Propensity evidence
Propensity evidence is admissible in cases of deception where there is a sufficiently strong connection between the offences.
Obtaining by deception or theft
The difference between the two is possession and ownership. If someone has gained something by deception, the owner has freely given the offender possession. Theft, it has been taken without the owner’s knowledge.
Title
A right or claim to the ownership of property.
Voidable title
A title obtained by fraud or deception is called a voidable title. This means the title can be avoided (vacated) by the seller. If an innocent purchaser buys goods obtained by deception, before title has been avoided, then he or she is entitled to good title.
What is necessary to avoid title
Communication to the offender. The taking of all possible steps to bring it to their attention. Be advising the Police.
