DECEPTION Flashcards
Section 228(1)(a), Crimes Act 1961
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)
Section 228(1)(b), Crimes Act 1961
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)
Section 240(1)(a), Crimes Act 1961
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
Section 240(1)(b), Crimes Act 1961
OBTAINING BY DECEPTION OR CAUSING LOSS BY DECEPTION
- By any deception
- Without claim of right
- In incurring any debt or liability,
- Obtains credit
Section 240(1)(c), Crimes Act 1961
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
Section 240(1)(d), Crimes Act 1961
OBTAINING BY DECEPTION OR CAUSING LOSS BY DECEPTION
- By any deception
- Without claim of right
- Causes loss to any other person
Name the key case laws you must remember
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
Define obtain
Section 217, CA 1961
Obtain, in relation to any person, means obtain or retain for himself or herself or for any other person.
Define property
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.
Define pecuniary advantage
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
Define valuable consideration
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.
Define dishonesty
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.
Define claim of right
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.
Define takes
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.
Define document
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
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?
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
Define deception
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)
R v Misic
Essentially a document is a thing which provides evidence or information or serves as a record.
(document definition)
R v Morley
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)
R v Laverty
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)
R v Cox (possession)
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,
Define debt
Money owing from one person to another.
Define liability
Legally enforceable financial obligation to pay.
Fisher v Raven
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)
R v Cara
Service is limited to financial or economical value and excludes privileges or benefits.
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?
- 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.
Discuss the legislation for attempts
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.
In regards to the concept of claim of right, what is important to remember in relation to timing?
The belief must be held at the time of the conduct alleged to constitute the offence.
What is required to prove a deception? (x4)
- 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
Explain the concept of ‘continuing effect’ in relation to a representation and provide an example.
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.
As a general rule, silence or non-disclosure will NOT be regarded as a representation.
Explain one exception to this rule, with an example.
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.
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)
- propensity evidence
- an admission
- implication from the circumstances surrounding the event
PAC - propensity evidence, admissions, circumstances
How is recklessness defined in R v Tipple?
Recklessness means the conscious and deliberate taking of an unjustified risk.
Explain the subjective/objective test in regards to recklessness and name the case law that applied
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
If property obtained through dishonest means is found on premises that the defendant has control of, is that sufficient to prove control?
No. It must be proved that they defendant exercised some control over it. (Adams on Criminal Law, 2001)
What does R v McKay lay out in regards to the timing of the intention to deceive.
R v McKay
Credit had been obtained but at that time the accused did not possess an intent to deceive.
What needs to be proved, and does not need to be proved under Section 240(1)(d)? (obtaining by deception - cause loss)
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
Outline the penalties for deception offences.
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
What is the meaning of the term ‘propensity evidence’ as it is used in Section 40, 41 and 43, Evidence Act 2006?
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.
What does Section 43(1) say about ‘probative value’?
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.
When assessing the prejudicial effect of evidence on the defendant, what must the Judge must consider?
(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’
What is the term given to a title obtained by deception, fraud, duress or misrepresentation?
Voidable title
What is necessary to avoid title?
- 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.
Give 4 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
Use Hayes v R as your case law!
Give 3 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
Use Hayes v R as your case law!
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
Define document
A document includes any item that provides evidence of information or serves as a record (such as a computer disc).
R v Misic
Define credit
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
In criminal law context there are 2 types of intent. what are they
there must be an intention to commit the act and also an intention to produce a specific outcome
Define material particular
an important, essential or relevant detail
Define privilege and benefit, and give examples
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)
What is the distinction between theft and deception
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
To convict a defendant of 240(1)(b), what must you prove
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
evidence of inducement would be provided by who?
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
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
R v Sharma
The ultimate issue is the degree to which the probative value of the evidence outweighs its prejudicial effect
What sort of things would amount to Theft by a Person in a Special Relationship (220)
- 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
What is the penalty for Theft by a Person in a Special Relationship
what is the mens rea?
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
What is the penalty for Forgery
When is forgery complete
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
A False document is defined in Section 255 of the CA 1961.
Give examples of a false document
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
What must the Prosecution prove with Forgery?
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
What is the difference between the offence of forgery and the offence of altering and reproducing a document
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
What is an alteration (in the context of a document)
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
What is required to prove false representation
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)
Define the term access (in the context of computer crime)
To instruct, communicate with, store data in, receive data from or otherwise make use of any of the resources in a computer system
What intent must be proved to convict someone of accessing a computer system for a dishonest purpose
It must be proved that the defendant
- obtained property etc
- caused loss to any other person
When arresting on behalf of the Serious Fraud Office, explain the roles of each organisation.
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.
Define computer system
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.
What is the criteria for a fraud to be handed over to the Serious Fraud Office?
- 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)
Before beginning an investigation into credit card and cheque offences, which external agency should you consult first?
The bank’s fraud investigators.
List the elements of Accessing computer systems for dishonest purposes, s249(2). CA 1961.
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.
List the elements of Using forged document, s257(1), CA 1961.
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.
List the elements of Altering, concealing, destroying, or reproducing document with intent to deceive, s258(1), CA 1961.
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.
Define representation
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
When is the offence of obtaining complete?
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
What does Hayes v R say about dishonesty and belief
The question is whether the belief was held, not whether that belief was a reasonable one
