DECEPTION Flashcards
Dishonestly takes or obtains a document s228(1)(a)
DISHONESTLY (Acting without a belief that there was expressed or implied consent from a person in a position to give consent or authority)
WITHOUT CLAIM OF RIGHT (A belief that the person has proprietary or possessory right to the property and has exercised this right. It must exist at the time the offence is committed, and the property must relate to the offence. Must be honest and genuine. May be based on ignorance or mistake of fact)
TAKES (Moves the property or causes it to be moved)
OR
OBTAINS (obtain or retain for themselves or another)
A DOCUMENT (Defined by s217 CA 1961, a document or part of a document in any form)
(R v Misic: A document is a thing which contains evidence or information or serves as a record)
WITH INTENT TO OBTAIN (doing a deliberate act with intent to get a specific result)
(R v Collister: Intent inferred by the circumstances, words and actions said before during and after, the surrounding circumstances and the nature of the act)
(R v Morley: Purposeful intent is necessary and must exist at the time of the deception)
PROPERTY (any real or personal, estate, interest, money, electrical, debt)
OR
SERVICE (R v Cara: service is limited to financial or economic value and excludes privileges or benefits)
OR
PECUNIARY ADVANTAGE (The thing must be tangible and capable of being used)
(Hayes v R: Anything that enhances the accused’s financial position)
OR
VALUABLE CONSIDERATION
(Hayes v R: Anything capable of being a valuable consideration, whether of a monetary kind or if any other kind. Money is money’s worth)
Dishonestly uses or attempts to use a document s228(1)(b)
DISHONESTLY (Acting without a belief that there was expressed or implied consent from a person in a position to give consent or authority)
WITHOUT CLAIM OF RIGHT (A belief that the person has proprietary or possessory right to the property and has exercised this right. It must exist at the time the offence is committed, and the property must relate to the offence. Must be honest and genuine. May be based on ignorance or mistake of fact)
USES (To use in any way)
OR
ATTEMPTS TO USE (Does or omits an act for the purpose of accomplishing his object, whether it was possible to commit the offence or not)
(Hayes v R: An unsuccessful use is as much a use as a successful one)
A DOCUMENT (Defined by s217 CA 1961, a document or part of a document in any form)
(R v Misic: A document is a thing which contains evidence or information or serves as a record)
WITH INTENT TO OBTAIN (doing a deliberate act with intent to get a specific result)
(R v Collister: Intent inferred by the circumstances, words and actions said before during and after, the surrounding circumstances and the nature of the act)
(R v Morley: Purposeful intent is necessary and must exist at the time of the deception)
PROPERTY (any real or personal, estate, interest, money, electrical, debt)
OR
SERVICE (R v Cara: service is limited to financial or economic value and excludes privileges or benefits)
OR
PECUNIARY ADVANTAGE (The thing must be tangible and must be capable of being used)
(Hayes v R: Anything that enhances the accused’s financial position)
OR
VALUABLE CONSIDERATION
(Hayes v R: Anything capable of being a valuable consideration, whether of a monetary kind or if any other kind. Money is money’s worth)
Define obtain
To obtain or retain for himself, herself or for any other person
Define property
PRIMED
Real and personal property
Any real estate or interest in any real estate or personal property
Money
Electricity
and any debt
and anything in action
and any other right or interest
Example - A ‘thing’ (bike)
Define service (R v Cara)
Service is limited to financial or economic value and excludes privileges or benefits
Example - An activity (going to a mechanic or getting a haircut)
Define pecuniary advantage (R v Hayes)
Anything that enhances the accused’s financial position. It is enhancement which constitutes the element of advantage
Example - If the liability mentions money or cash
What is the difference between pecuniary advantage and valuable consideration?
Pecuniary advantage can amount to a favourable consideration when it involves monetary advantage however the scope of valuable consideration is wider than pecuniary advantage
Define valuable consideration (R v Hayes)
Anything capable of being valuable consideration, whether of a monetary kind or of any other kind, in short money or moneys worth
Example - not money but used as if it was (exchanging goods)
What are three 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
Define 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 consent or authority
Belief (Hayes v R)
The question is whether the belief is actually held, not whether that belief is reasonable
However, reasonableness may be relevant as evidence on the issue of whether the belief was actually held
Define claim of right
Belief at the time of any act in a proprietary or possessory right in relation to the offence is to have allegedly been committed
Although belief may be based on ignorance or mistake of fact
What are the four things for claim of right?
- Belief in a possessory or proprietary right in property - belief in the ownership of property or a right to take or retain possession of it
- Belief in the rights to the property in relation to which the offence is alleged to have been committed
- Belief held at the time of the conduct alleged to constitute the offence
- Belief must be actually held by the defendant
Define taking
For tangible property, theft is committed by a taking when the offender moves the property or causes it to be moved
Define Document
(R v Misic)
Essentially a document is a thing which provides evidence or information or serves as a record
Must be capable of being used to derive pecuniary advantage
Define uses or attempts to use
(Hayes v R)
An unsuccessful use of a document is as much use as a successful one. An unsuccessful use must not be equated conceptually with an attempted one. Because the use does not have to be successful it may be difficult to distinguish between the two
Obtains property by deception s240(1)(a)
BY ANY DECEPTION (Defined by s240(2) CA 1961, an omission to disclose a material particular with intent to deceive any person)
(R v Morley: 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 deception)
WITHOUT CLAIM OF RIGHT (A belief that the person has proprietary or possessory right to the property and has exercised this right. It must exist at the time the offence is committed, and the property must relate to the offence. Must be honest and genuine. May be based in ignorance or mistake of fact)
OBTAINS (To obtain or retain for themselves or any other person)
-
OWNERSHIP OF (title, a legal right or claim)
OR
POSSESSION OF (R v Cox: Possession involves two elements. Actual or potential physical control and mental, the awareness of possession and an intent to exercise)
OR
CONTROL OVER (Power of directing, demand)
-
PROPERTY (Any real or personal, estate, interest, money, electrical, debt, anything in action, any other right or interest)
OR
SERVICE (R v Cara: Service is limited to financial or economic value and excludes privileges or benefits)
OR
PECUNIARY ADVANTAGE (The thing must be tangible and must be capable of being used)
(R v Hayes: Anything that enhances the accused’s financial position)
OR
VALUABLE CONSIDERATION (Hayes v R: Anything capable of being a valuable consideration, whether of a monetary kind or if any other kind. Money is money’s worth)
OR
PRIVILEGE (A special right or advantage, not limited to pecuniary/ monetary/ financial gain)
OR
BENEFIT (A special right or advantage)
DIRECTLY OR INDIRECTLY
(example: for privilege or Benefit - using someone’s else gym membership to use the gym)
Obtains credit by deception s240(1)(b)
BY ANY DECEPTION (Defined by s240(2) CA 1961, an omission to disclose a material particular with intent to deceive any person)
(R v Morley: 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 deception)
WITHOUT CLAIM OF RIGHT (A belief that the person has proprietary or possessory right to the property and has exercised this right. It must exist at the time the offence is committed, and the property must relate to the offence. Must be honest and genuine. May be based in ignorance or mistake of fact)
IN INCURRING ANY
DEBT (Money owing from one person to another)
OR
LIABILITY (a legally enforceable financial obligation to pay)
OBTAINS (To obtain or retain for themselves or any other person)
CREDIT (Obligation on the debtor to pay or repay and the time given for them to do so by the creditor)
(example: someone going into a restaurant and walking out without paying)
Inducing or causing to deliver over by deception s240(1)(c)
BY ANY DECEPTION (Defined by s240(2) CA 1961, an omission to disclose a material particular with intent to deceive any person)
(R v Morley: 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 deception)
WITHOUT CLAIM OF RIGHT (A belief that the person has proprietary or possessory right to the property and has exercised this right. It must exist at the time the offence is committed, and the property must relate to the offence. Must be honest and genuine. May be based in ignorance or mistake of fact)
INDUCES (to persuade, bring about or give rise to)
(R v Laverty: It was the consequence of the belief of the false representation that caused the victim to part with their money)
OR
CAUSES ANY OTHER PERSON TO
-
DELIVER OVER (to surrender up someone or something)
EXECUTE (to put a course of action into effect)
MAKE
ACCEPT (to receive something)
ENDORSE (to write or sign on a document)
DESTROY (to end the existence of)
ALTER (to change in character or composition)
-
ANY DOCUMENT (Defined by s217 CA 1961, a document or part of a document in any form)
(R v Misic: A document is a thing which contains evidence or information or serves as a record)
OR
THING CAPABLE OF BEING USED TO DERIVE A PECUNIARY ADVANTAGE (The thing must be tangible and must be capable of being used)
(R v Hayes: Anything that enhances the accused’s financial position)
Define ‘deliver over’
To surrender up someone or something
Define ‘execute’
To put a course of action into effect
Define ‘endorse’
To write or sign on a document
Define ‘alter’
To change in character or composition
Define ‘accept’
To receive something
Causing loss by deception s240(1)(d)
BY ANY DECEPTION (Defined by s240(2) CA 1961, an omission to disclose a material particular with intent to deceive any person)
(R v Morley: 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 deception)
WITHOUT CLAIM OF RIGHT (A belief that the person has proprietary or possessory right to the property and has exercised this right. It must exist at the time the offence is committed, and the property must relate to the offence. Must be honest and genuine. May be based in ignorance or mistake of fact)
CAUSES LOSS (direct loss caused by the deception, includes financial detriment to the victim and includes property or valuable things)
TO ANY PERSON (includes not only real people but also companies and other organisations)
(R v Morley: The loss alleged by the victim must have been induced by, or caused in reliance, upon the deception. But the deception need not be the only operative factor, so long as it played a material part in occasioning the loss)
Define deception
False representation, whether oral, documentary, or by conduct, with intent to deceive any other person and
- knows that it is false OR is reckless to it being false OR
- An omission to disclose material particular, with intent to deceive when they should disclose it OR
- A fraudulent device, trick or stratagem use with intent to deceive any person
Define ‘to any other person’
Includes not only real people but also companies and other organisations
How do you prove a false representation?
You must prove there was
- An intent to deceive
- There was a representation by the defendant
- The representation was false and the defendant:
- knew it to be false in a material particular OR
- was reckless whether it was false in a material particular
Intent to deceive (R v Morley)
An intention to deceive requires that the deception is practiced in order to deceive the affected party. Purposeful intent is necessary and must exist at the time of deception
Recklessness
(Cameron v R)
Recklessness is established if:
- The defendant recognized that there was a real possibility that his or her actions would bring about the proscribed result AND/OR
- That the prescribed circumstances existed AND
- having regard to that risk those actions were unreasonable
What are the two elements of intent?
- Intention to commit the act
- To get a specified result
What are three ways representations can be made and examples?
Orally: Verbally claiming to own goods that were subject to a higher purchase agreement
Conduct: Representing oneself to be a collector for a charity
Documentary: Completing a valueless cheque on an account knowing that there are no funds
Representation (R v Morley)
Representations must relate to a statement of existing fact, rather than a statement of future intention
What is an example of a continuing effect (representation)
Ordering food in a restaurant represents that the diner will follow the normal practice and pay for the meal. If during the course of the dinner the diner decides to avoid that payment, the continuing representation will become false and the obtaining of food will come within s240
What is the general rule when it comes to silence or non disclosure?
It will not be regarded as a representation, but there are exceptions to where there is an incorrect understanding implied from a course of dealing and the defendant has failed to negate that incorrect understanding
For example: Label swapping or changing price tags and allowing the cashier to charge the incorrect price
How can knowledge be established?
- An admission
- Implication from the circumstances surrounding the event
- Propensity evidence
Knowing is correctly believing. The defendant may believe something wrongly, but cannot know something that is false (Simester and Brookbanks)
What must prosecution prove in relation to knowledge
That the defendant knows or believes his representation is false in a material particular OR is reckless as to whether it is false
What is a material particular
An important, essential or relevant detail or item
A matter will be a material particular if it is something important or something that matters (R v Mallett)
What is an omission
A conscious decision not to do something or not giving thought to the matter at all
Where does a duty to disclose originate from?
Often from civil law, for example where the parties are in a contractual relationship
Define Device
A plan, scheme or trick
Define trick
An action or scheme to fool, outwit or deceive
Define stratagem
A cunning plan or scheme to deceive an enemy or trickery
What are examples of benefit or privilege
- Access to medical services
- The withdrawal of an assault charge
- Reduction in sentence for an offence
- Using another person’s gym membership to access gym facilities by
Does not need to involve financial loss or injury to the person who has been defrauded
If the item that is being obtained is being sent by post, when is the obtaining complete?
At the time of posting
Possession (R v Cox)
Possession involves two elements:
Physical - actual or potential physical custody or control
Mental - Knowledge by the accused that the substance is in his possession AND an intention to exercise possession
Special interest
Goods obtained by someone who doesn’t have ownership of them
For example: A garage owner had a right over the persons car until the payment of debt was made
Examples of pecuniary advantage
Economic or monetary advantage
- Cash from stolen goods
- Clothing or cash obtained by credit or EFTPOS card
- A discount by using a student ID
- Avoiding or deferring payments of a debt
Define debt
Money owing from one person to another. Must be legally enforceable, this means if the contract is void or illegal there will be no offence
Define liability
A legally enforceable financial obligation to pay, such as the cost of a meal
Define credit
Obligation on the debtor to pay or repay, and the time given for them to do so by the creditor