Deception

Question 1

Deception - s240(2) C.A. 1961

Answer 1

Deception means -
(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; or

(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.

Question 2

What is required to prove a false representation?

Answer 2

• That there was an intent to deceive

• That there was a representation by the defendant

• That the representation was false and that the defendant either:
- knew it was false in a material particular; or
- was reckless whether it was false in a material particular.

Question 3

Examples of making a representation

Answer 3

• Orally
Verbally claiming to own goods that are in fact subject to an HP agreement

• By conduct
Presenting as a collector for charity by appearing to carry an official collection bag

• Documentary
Presenting a false certificate of qualification.

Question 4

Intention to deceive - MORLEY

Answer 4

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

Question 5

Representations - MORLEY

Answer 5

Representations must relate to a statement of existing fact, rather than a statement of future intention.

Question 6

Silence

Answer 6

• As a general rule silence or non-disclosure will not be regarded as a representation.

• Exceptions exist, such as when an incorrect understanding is implied from a dealing and the defendant fails to negate that incorrect understanding.

Question 7

Knowledge - Simester & Brookbanks

Answer 7

• Knowledge means knowing or correctly believing

• The defendant may believe something wrongly, but cannot know something that is false.

Question 8

Recklessness - CAMERON

Answer 8

Recklessness is established if:

• The defendant recognised that there was a real possibility that his actions would bring about the proscribed result, &/or the proscribed circumstances existed
• Having regard to that risk, those actions were unreasonable.

Question 9

Fraudulent device, trick or stratagem

Answer 9

• 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

*Must be accompanied by an intent to deceive.

Question 10

Material particular - Definition

Answer 10

• Not defined in the Crimes Act and can be given it’s usual meaning of an important, essential or relevant detail or item

• A matter will be a material particular if it is something important or something that matters (MALLET).

Question 11

The prosecution must establish that the defendant knows or believes his representation is false in a MP, or is reckless as to whether it is false.

State your understanding in
relation to the term ‘false in a material particular’

Answer 11

• The prosecution must establish that the defendant knows or believes his representation is false in a MP, or is reckless as to whether it is false
• A minor detail may be a “material particular” if it is of consequence to the facts of the case
• The question of materiality will be assessed objectively
• Material particular is not defined in the Crimes Act and can be given its usual meaning of an important, essential or relevant detail or item.