DECEPTION

Question 1

Section 228(1)(a), Crimes Act 1961

Answer 1

DISHONESTLY TAKING OR USING A DOCUMENT

• Dishonestly
• Without claim of right
• Takes or obtains
• Any document
• With intent to obtain any
o property
o service
o pecuniary advantage
o valuable consideration

(TAKES)

Question 2

Section 228(1)(b), Crimes Act 1961

Answer 2

DISHONESTLY TAKING OR USING A DOCUMENT

• Dishonestly
• Without claim of right
• Uses or attempts to use
• Any document
• With intent to obtain any
o property
o service
o pecuniary advantage
o valuable consideration

(USES OR ATTEMPTS TO USE)

Question 3

Section 240(1)(a), Crimes Act 1961

Answer 3

OBTAINING BY DECEPTION OR CAUSING LOSS BY DECEPTION

• By any deception
• Without claim of right
• Obtains ownership or possession of, or control over
o any property,
o any privilege,
o service,
o pecuniary advantage
o benefit
o valuable consideration,
• Directly or indirectly

Question 4

Section 240(1)(b), Crimes Act 1961

Answer 4

OBTAINING BY DECEPTION OR CAUSING LOSS BY DECEPTION

• By any deception
• Without claim of right
• In incurring any debt or liability,
• Obtains credit

Question 5

Section 240(1)(c), Crimes Act 1961

Answer 5

OBTAINING BY DECEPTION OR CAUSING LOSS BY DECEPTION

• By any deception
• Without claim of right
• Induces or causes any other person to
o deliver over
o execute
o make
o accept
o endorse
o destroy, or
o alter
• Any document or thing capable of being used to derive a pecuniary advantage

Question 6

Section 240(1)(d), Crimes Act 1961

Answer 6

OBTAINING BY DECEPTION OR CAUSING LOSS BY DECEPTION

• By any deception
• Without claim of right
• Causes loss to any other person

Question 7

Name the key case laws you must remember

Answer 7

R v Misic - document
R v Morley - intention to deceive requires deception be practised
R v Cox - possession
R v Laverty - Crown must prove inducement made by false representation
Hayes v R - definition of pecuniary advantage, valuable consideration, unsuccessful use is still use
Fisher v Raven - credit
R v Cara - service
R v Tipple - defines recklessness
R v Cameron - 2 fold test to prove recklessness
R v McKay - credit must be obtained AND must be intent to deceive

Question 8

Define obtain

Answer 8

Section 217, CA 1961

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

Question 9

Define property

Answer 9

Section 2, CA 1961

Property includes real and personal property and any estate or interest in any real or personal property, money, electricity and any debt, and any thing in action, and any other right or interest.

Question 10

Define pecuniary advantage

Answer 10

Hayes v R

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

• cash from stolen goods
• clothing or cash from a stolen eftpos card
• discount
• avoiding payment on a debt

Question 11

Define valuable consideration

Answer 11

Hayes v R

A valuable consideration is anything capable of being valuable consideration, whether of a monetary kind or of any other kind; in short, money or money’s worth.

Question 12

Define dishonesty

Answer 12

Section 217, CA 1961

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 13

Define claim of right

Answer 13

Section 2, CA 1961

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 14

Define takes

Answer 14

taking is not specifically defined by stature but can be read in conjunction with the definition of theft offered in Section 219(4), CA 1961

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

Question 15

Define document

Answer 15

Section 217, CA 1961

Includes part of a document in any form, and includes:

• paper/material containing anything that can be read
• photos, negatives and related items
• discs, tapes, cards or other devices/equipment on which information is stored and can be reproduced

R v Misic

Question 16

Explain the case law that you would apply in a discussion of the element of ‘uses or attempts to use any document’ in Section 228(b).

what must the prosecution prove?

Answer 16

Hayes v R

An unsuccessful use of a document is as much use as a successful one….Because the use does not have to be successful it may be difficult to draw a clear line between use and attempted use.

Prosecution must prove that the offender used or attempted to use the document with intent to obtain the property

Question 17

Define deception

Answer 17

Section 240(2), CA 1961

(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;

(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.

(to deceive you must

• make a false rep, omit, use a fraud
• intend to deceive
• know the rep is false or be reckless about it
• can be evidenced in words, conduct or documents)

Question 18

R v Misic

Answer 18

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

(document definition)

Question 19

R v Morley

Answer 19

An intention to deceive requires that the deception be practiced in order to deceive the affected party. Purposeful intent is necessary and must exist at the time of the deception.

(intention to deceive requires deception be practiced)

Question 20

R v Laverty

Answer 20

It is necessary for the prosecution to prove that the person parting with the property was induced to do so by the false representation made.

(Crown must prove inducement was a result of believing a false representation)

Question 21

R v Cox (possession)

Answer 21

Possession involves two elements. The first, often called the 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,

Question 22

Define debt

Answer 22

Money owing from one person to another.

Question 23

Define liability

Answer 23

Legally enforceable financial obligation to pay.

Question 24

Fisher v Raven

Answer 24

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.

(Credit)

Question 25

R v Cara

Answer 25

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

Question 26

In regards to the definition of dishonesty, the defendant can raise reasonable doubt on the basis of a mistaken belief. What are the two kinds of mistaken belief?

Answer 26

- That the act or omission was, expressly or implicitly, consented to by a person entitled to give consent OR - that the act or omission was authorised by a person entitled to authorise it.

Question 27

Discuss the legislation for attempts

Answer 27

Section 72(1), CA 1961 Everyone who, having an intent to commit an offence, does or omits an act for the purpose of accomplishing his object, is guilty of an attempt to commit the offence intended, whether in the circumstances it was possible to commit the offence or not.

Question 28

In regards to the concept of claim of right, what is important to remember in relation to timing?

Answer 28

The belief must be held at the time of the conduct alleged to constitute the offence.

Question 29

What is required to prove a deception? (x4)

Answer 29

- That there was an intent to deceive - That there was a representation by the defendant - That the representation was false OR the defendant either knew it to be false in a material particular OR was reckless whether it was false in a material particular

Question 30

Explain the concept of 'continuing effect' in relation to a representation and provide an example.

Answer 30

In many cases a representation by words or conduct may have a continuing effect. Entering a restaurant and ordering a meal represents that the diner will follow the normal practice and pay for the meal.

Question 31

As a general rule, silence or non-disclosure will NOT be regarded as a representation. Explain one exception to this rule, with an example.

Answer 31

As a general rule, silence or non-disclosure will NOT be regarded as a representation BUT the exception is where an incorrect understanding is implied from a course of dealing, and the defendant has then failed to negate that incorrect understanding. Example - Police v Dronjak The defendant was shopping in department store. He was told by a shop assistant that a car radio was $695.83. When the defendant got to checkout the item had two price tags, one for $695.83 and the other for $38.88 (no evidence of tampering). The defendant allowed the cashier to charge incorrect price of $38.88.

Question 32

In regards to a deception, the prosecution must prove that the defendant knew that the representation was false in a material particular, or that the defendant was reckless as to its falsity. How can this knowledge be established? (3 ways)

Answer 32

- propensity evidence - an admission - implication from the circumstances surrounding the event PAC - propensity evidence, admissions, circumstances

Question 33

How is recklessness defined in R v Tipple?

Answer 33

Recklessness means the conscious and deliberate taking of an unjustified risk.

Question 34

Explain the subjective/objective test in regards to recklessness and name the case law that applied

Answer 34

It must be proved that the defendant - was aware of the risk of his actions and proceeded regardless (subjective) - that it was unreasonable for him to do so (objective) R v Cameron

Question 35

If property obtained through dishonest means is found on premises that the defendant has control of, is that sufficient to prove control?

Answer 35

No. It must be proved that they defendant exercised some control over it. (Adams on Criminal Law, 2001)

Question 36

What does R v McKay lay out in regards to the timing of the intention to deceive.

Answer 36

R v McKay Credit had been obtained but at that time the accused did not possess an intent to deceive.

Question 37

What needs to be proved, and does not need to be proved under Section 240(1)(d)? (obtaining by deception - cause loss)

Answer 37

The prosecution must prove - that the loss was caused by a deception - that it was reasonably foreseeable that a loss that was more than trivial would occur However Prosecution need not prove that the loss was intentionally caused, or that there was a benefit to any person

Question 38

Outline the penalties for deception offences.

Answer 38

The penalty will be dictated by the loss caused, or the value of what is obtained - where the value of the property is $1000+ = max 7 years - $500-$1000 = max 1 year - less than $500 = max 3 months

Question 39

What is the meaning of the term 'propensity evidence' as it is used in Section 40, 41 and 43, Evidence Act 2006?

Answer 39

This is defined in Section 40(1)(a) and (b). (a) means evidence that tends to show a person's propensity to act in a particular way or to have a particular state of mind, being evidence of acts, omissions, events or circumstances with which a person is alleged to have been involved; but (b) does not include evidence of an act or omission that is - (i) one of the elements of the offence for which the person is being tried; or (ii) the cause of action in the proceeding in question.

Question 40

What does Section 43(1) say about 'probative value'?

Answer 40

The prosecution may offer propensity evidence about a defendant in a criminal proceeding only if the evidence has a probative value in relation to an issue in dispute in the proceeding which outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant. R v Sharma applies.

Question 41

When assessing the prejudicial effect of evidence on the defendant, what must the Judge must consider?

Answer 41

(a) whether the evidence is likely to unfairly predispose the fact-finder against the defendant; and (b) whether the fact-finder will tend to give disproportionate weight in reaching a verdict to evidence of other acts or omissions. R v Sharma 'the ultimate issue is the degree to which the probative value of the evidence outweighs its prejudicial effects'

Question 42

What is the term given to a title obtained by deception, fraud, duress or misrepresentation?

Answer 42

Voidable title

Question 43

What is necessary to avoid title?

Answer 43

- Communication with the deceiver to advise them that you are aware of the deception. Can be by letter or in person. If they cannot be contacted a public notice in the newspaper is sufficient. OR - Making a complaint to police that the property was obtained by deception.

Question 44

Give 4 examples of pecuniary advantage

Answer 44

- 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 Use Hayes v R as your case law!

Question 45

Give 3 examples of valuable consideration

Answer 45

- 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 Use Hayes v R as your case law!

Question 46

Dishonestly

Answer 46

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 47

Define document

Answer 47

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

Question 48

Define credit

Answer 48

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. It is intangible - it must be obtained in respect to a monetary obligation ie a meal at a restaurant Fisher v Raven

Question 49

In criminal law context there are 2 types of intent. what are they

Answer 49

there must be an intention to commit the act and also an intention to produce a specific outcome

Question 50

Define material particular

Answer 50

an important, essential or relevant detail

Question 51

Define privilege and benefit, and give examples

Answer 51

Both words mean a special right or advantage, and are not limited to the pecuniary (monetary) - using another person's gym membership (in this case, i there does not need to be financial loss tot he person defrauded)

Question 52

What is the distinction between theft and deception

Answer 52

A thief obtains possession of the property stolen but never legal ownership/title because the owner hasn't provided consent / parted with the property willingly and knowingly

Question 53

To convict a defendant of 240(1)(b), what must you prove

Answer 53

their identity, and that they: - by deception, and without COR - in incurring any debt of liability - gained credit there must be a causal link between the debt/liability and the gaining of credit. the obligation to pay must be legally enforceable. the intent to deceive and gain credit must exist at the time the deception is perpetrated ie if you walk away without paying for a meal, you must have decided that when you walked into he restaurant or had just started eating

Question 54

evidence of inducement would be provided by who?

Answer 54

the person who was defrauded the person who has been deceived should be questioned to prove that they believed what transpired to be a false representation, and that as a consequence of that belief, they parted with their money R v Laverty

Question 55

Propensity evidence is admissible in cases of deception where there is a sufficiently strong link between the offences what is the ultimate issue when regarding if the evidence should be admissible

Answer 55

R v Sharma The ultimate issue is the degree to which the probative value of the evidence outweighs its prejudicial effect

Question 56

What sort of things would amount to Theft by a Person in a Special Relationship (220)

Answer 56

- receiving property and failing to account for it, to any other person - receiving the proceeds of property and failing to account for it, to any other person - receiving property and dealing with it in a way that is not in accordance with the requirements of the person you received it from

Question 57

What is the penalty for Theft by a Person in a Special Relationship what is the mens rea?

Answer 57

7 years, regardless of the property value It must be proven that the defendant - received property on conditions - ie to deal with the property as per the requirements of the person it was given by - intentionally departed from this obligation

Question 58

What is the penalty for Forgery When is forgery complete

Answer 58

10 years Complete as soon as the document is made with knowledge that it is false and intent that the document is to be seen as genuine, even if the document is incomplete and or the defendant does not use it For something to have been forged it must be a document, and it must be false

Question 59

A False document is defined in Section 255 of the CA 1961. Give examples of a false document

Answer 59

A document that claims to be made by or on behalf of another person of a fictitious person, or a document that has been altered or reproduced - writing an exam paper in another's name - forging letters of recommendation for a CV

Question 60

What must the Prosecution prove with Forgery?

Answer 60

It must be proven that - the defendant knew the document was false - intended to use the document to obtain something - intended that the document be acted or used upon as a genuine document there is NO requirement to prove that - the defendant had an intention to deceive - that the document was put to its intended use

Question 61

What is the difference between the offence of forgery and the offence of altering and reproducing a document

Answer 61

For forgery, there must be a false document, and only the intention to deceive is required, NOT an intention to obtain something through deception The difference is in the intent and in the documentations

Question 62

What is an alteration (in the context of a document)

Answer 62

additions, insertions, deletions, obliterations, erasures, removal of material an alteration is a material alteration if it increases the value or negotiability of a document or instrument

Question 63

What is required to prove false representation

Answer 63

You must prove - that there was intent to deceive - that there was a representation by the defendant - the representation was false OR defendant knew, or was reckless as to whether the representation was false IRF-KR (intent, representation, falsity, knowledge/recklessness)

Question 64

Define the term access (in the context of computer crime)

Answer 64

To instruct, communicate with, store data in, receive data from or otherwise make use of any of the resources in a computer system

Question 65

What intent must be proved to convict someone of accessing a computer system for a dishonest purpose

Answer 65

It must be proved that the defendant - obtained property etc - caused loss to any other person

Question 66

When arresting on behalf of the Serious Fraud Office, explain the roles of each organisation.

Answer 66

SFO do not have power of arrest. Police arrest. SFO prepares file and is responsible for prosecution. Police must never represent the SFO in Court.

Question 67

Define computer system

Answer 67

Computer system (a) means (i) a computer; or (ii) two or more interconnected computers; or (iii) any communication links between computers or to remote terminals or another device; or (iv) two or more interconnected computers combined with any communication links between computers or to remote terminals or any other device; and (b) includes any part of the items described in paragraph (a) and all related input, output, processing, storage, software, or communication facilities, and stored data.

Question 68

What is the criteria for a fraud to be handed over to the Serious Fraud Office?

Answer 68

- Actual or potential loss in excess of $2,000,000 - Where the facts, law or evidence is of great complexity - Of great interest or concern (eg. involving a public figure)

Question 69

Before beginning an investigation into credit card and cheque offences, which external agency should you consult first?

Answer 69

The bank's fraud investigators.

Question 70

List the elements of Accessing computer systems for dishonest purposes, s249(2). CA 1961.

Answer 70

Directly or indirectly accesses any computer system with intent, dishonestly or by deception, and without claim of right; - (a) to obtain any property, privilege, service, pecuniary advantage, benefit or valuable consideration; or (b) to cause loss to any other person.

Question 71

List the elements of Using forged document, s257(1), CA 1961.

Answer 71

Knowing a document to be forged, - (a) uses the document to obtain any property, privilege, service, pecuniary advantage, benefit, or valuable consideration; or (b) uses, deals with, or acts upon the document as if it were genuine; or (c) causes any other person to use, deal with, or act upon it as if it were genuine.

Question 72

List the elements of Altering, concealing, destroying, or reproducing document with intent to deceive, s258(1), CA 1961.

Answer 72

With intent to obtain by deception any property, privilege, service, pecuniary advantage, benefit, or valuable consideration, or to cause loss to any other person, - (a) alters, conceals, or destroys any document, or causes any document to be altered, concealed or destroyed; or (b) makes a document or causes a document to be made that is, in whole or in part, a reproduction of any other document.

Question 73

Define representation

Answer 73

No statutory or case law definition. Examples could be a statement of a present fact, an opinion, belief, indication, intention, knowledge It must contain a proposition of fact, to be capable therefore of being false

Question 74

When is the offence of obtaining complete?

Answer 74

When you have - Sought to obtain something - With the intention to deceive You do not have to physically obtain the thing to be guilty of obtaining

Question 75

What does Hayes v R say about dishonesty and belief

Answer 75

The question is whether the belief was held, not whether that belief was a reasonable one