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.
