Deception

Question 1

Dishonestly Taking a Document liability

Answer 1

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

Question 2

Dishonestly using a document liability

Answer 2

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

Question 3

Obtaining by deception or causing loss by deception (1)(a) liability

Answer 3

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)

Question 4

Obtaining by deception or causing loss by deception (1)(b) liability

Answer 4

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)

Question 5

Interpretation of obtains

Answer 5

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

Question 6

Service

Answer 6

Service is limited to financial or economic value and excludes privileges or benefits.

Question 7

Hayes v R (pecuniary advantage)

Answer 7

A pecuniary advantage is anything that enhances the accused financial position. It is that enhancement which constitutes the element of advantage

(Pecuinary advantage)

Question 8

Examples of pecuniary advantage

Answer 8

• 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

Question 9

Hayes v R (Valuable consideration)

Answer 9

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)

Question 10

Examples of valuable consideration

Answer 10

• 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

Question 11

Dishonestly

Answer 11

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

Question 12

Claim of right

Answer 12

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

Question 13

Taking

Answer 13

For tangible property, theft is committed by a taking when the offender moves the property or causes it to be moved.

Question 14

Hayes v R (use vs attempted use)

Answer 14

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)

Question 15

Document

Answer 15

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

Question 16

Document (short definition)

Answer 16

A document includes any item that provides evidence of information or serves as a record (such as a computer disc).

Question 17

R v Misic

Answer 17

Essentially a document is a thing which provides evidence or information or serves as a record

(Document)

Question 18

False representation

Answer 18

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.

Question 19

R v Morley

Answer 19

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)

Question 20

False representation - orally

Answer 20

Verbally claiming to own goods that are in fact subject to a hire purchase agreement.

Question 21

False representation - by conduct

Answer 21

Representing oneself to be a collector for charity by appearing to be carrying an official collectors bag

Question 22

False representation - documentary

Answer 22

Presenting a false certificate of qualification, or completing a valueless cheque on an account with no funds

Question 23

Knowledge for false representation

Answer 23

• an admission
• implication from the circumstances surrounding the event
• propensity evidence

Question 24

Material particular

Answer 24

A matter will be a ‘material particular’ if it is something important or something that matters

Question 25

Duty to disclose

Answer 25

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.

Question 26

R v Love

Answer 26

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)

Question 27

Fraudulent device, trick, or stratagem

Answer 27

The scheme or trick must be fraudulent which means dishonest in the traditional moral sense. Could be a pyramid moneymaking scheme.

Question 28

Device, trick, stratagem defined.

Answer 28

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

Question 29

Credit

Answer 29

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.

Question 30

Obligation to pay

Answer 30

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.

Question 31

Legally enforceable

Answer 31

The obligation to pay must be legally enforceable against whomever the credit is obtained.

Question 32

Time to pay

Answer 32

At the end of period of credit, payment is expected to be made.

Question 33

Credit - 3rd person

Answer 33

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.

Question 34

Timing of intention to deceive

Answer 34

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.

Question 35

Payment withheld

Answer 35

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

Question 36

Induces

Answer 36

To persuade, bring about or give rise to.

Question 37

Proof of the inducement

Answer 37

• that the false representation was believed, and

- that it was the consequence of that belief that the victim parted with his or her money

Question 38

Propensity evidence

Answer 38

Propensity evidence is admissible in cases of deception where there is a sufficiently strong connection between the offences.

Question 39

Obtaining by deception or theft

Answer 39

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.

Question 40

Title

Answer 40

A right or claim to the ownership of property.

Question 41

Voidable title

Answer 41

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.

Question 42

What is necessary to avoid title

Answer 42

Communication to the offender. The taking of all possible steps to bring it to their attention. Be advising the Police.