Deception Flashcards
Obtaining by deception or causing loss by deception
Section 240(1)(a), Crimes Act 1961
Section 240(1)(b), Crimes Act 1961
Section 240(1)(c), Crimes Act 1961
Section 240(1)(d), Crimes Act 1961
Elements of ‘Obtaining by deception or causing loss by deception’ (s240(1)(a))
- By any deception
- Without claim of right
- Obtains
- Ownership OR possession of OF control over
- Any property, any privilege, service, pecuniary advantage, benefit, valuable consideration - directly or indirectly
s240(1)(a) - In this section, 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 an person.
Case law: R v Morley
The must be purposeful intent to deceive the affected party and it must exist at the time of the deception
Definition of ‘obtains’
Goods are ‘obtained’ if they come under the defendant’s control, even though they may not have physical possession of them.
Property may be ‘obtained’ if a deception made to one person means that the property is then actually obtained from another person, provided that the deception operated on the mind of the person giving up the property.
Case law: R v Cox
Possession involves two elements:
- The first, physical element: is actual or potential physical custody or control
- The second, mental element: a combination of knowledge and intention - knowledge that its in their possession and intention to exercise that possession
Definition: ‘Control over’
“the power of directing, command”. The defendant does not need to possess something to have control over it.
Definition: ‘Property’
Section 2, Crimes Act 1961
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.
Case law: R v Cara
“service is limited to financial or economic value and excludes privileges or benefits”
Case law: Hayes v R (Pecuniary advantage)
A pecuniary advantage is “anything that enhances the accused’s financial position. It is that enhancement which constitutes the element of advantage”
Case law: Hayes v R (valuable consideration)
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”
Definition: privilege/benefit
The words “privilege” or “benefit” are not limited to a privilege or benefit of a pecuniary natures. Both mean: a “special right or advantage”
Elements of ‘Obtaining by deception or causing loss by deception’ (s240(1)(b))
- By any deception
- Without claim of right
- In incurring any debt or liability,
- Obtains credit
Definition: ‘debt’
money owing from one person to another
Definition: ‘liability’
legally enforceable financial obligation to pay (e.g. the cost of a meal)
Simester and Brookbanks: ‘debt or liability’
the debt or liability must be legally enforceable. This means that if the contract is void or illegal there will be no offence.
Definition: ‘credit’
the obligation on the debtor to pay or repay, and the time given for them to do so by the creditor.
Credit is an intangible thing. Credit obtained must be in respect of a monetary obligation
Elements of ‘Obtaining by deception or causing loss by deception’ (s240(1)(c))
- By any deception
- Without claim of right
- Induces of causes any other person to: deliver over, execute, make, accept, endorse, destroy, or alter
- Any document, OR Thing capable of being used to derive a pecuniary advantage
Definition: ‘deliver over’
to surrender up someone or something
Definition: ‘endorse’
to write or sign on a document
Definition: ‘execute’
to put a course of action into effect
Definition: ‘alter’
to change in character or composition, typically in a comparatively small but significant way
Case law: R v Misic
“essentially a document is a thing which provides evidence or information or serves as a record.”
Definition: ‘accept’
to receive something
Simester and Brookbanks: ‘thing’
the ‘thing’ must be tangible AND must be capable of being used to derive a pecuniary advantage
Elements of ‘Obtaining by deception or causing loss by deception’ (s240(1)(d))
- By any deception
- Without claim of right
- Causes loss to any other person
Definition: ‘loss’
The term ‘loss’ is not defined by statute, but in most cases will involve financial detriment to the victim
Case law: Morley v R
“the loss alleged by the victim must have been induced by, or cause 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.”
What must the prosecution prove for ‘Obtaining by deception or causing loss by deception’ (s240(1)(d))?
- the loss was caused by deception
- it was reasonably foreseeable some more than trivial loss would occur, but need not prove that the loss was intentionally caused
There must be loss to ‘any other person’, but there is no requirement that there be any benefit to anyone.
