Deception

Question 1

Obtaining by deception or causing loss by deception

Answer 1

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

Question 2

Elements of ‘Obtaining by deception or causing loss by deception’ (s240(1)(a))

Answer 2

1. By any deception
2. Without claim of right
3. Obtains
4. Ownership OR possession of OF control over
5. Any property, any privilege, service, pecuniary advantage, benefit, valuable consideration - directly or indirectly

Question 3

s240(1)(a) - In this section, deception means-

Answer 3

(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.

Question 4

Case law: R v Morley

Answer 4

The must be purposeful intent to deceive the affected party and it must exist at the time of the deception

Question 5

Definition of ‘obtains’

Answer 5

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.

Question 6

Case law: R v Cox

Answer 6

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

Question 7

Definition: ‘Control over’

Answer 7

“the power of directing, command”. The defendant does not need to possess something to have control over it.

Question 8

Definition: ‘Property’

Answer 8

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.

Question 9

Case law: R v Cara

Answer 9

“service is limited to financial or economic value and excludes privileges or benefits”

Question 10

Case law: Hayes v R (Pecuniary advantage)

Answer 10

A pecuniary advantage is “anything that enhances the accused’s financial position. It is that enhancement which constitutes the element of advantage”

Question 11

Case law: Hayes v R (valuable consideration)

Answer 11

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”

Question 12

Definition: privilege/benefit

Answer 12

The words “privilege” or “benefit” are not limited to a privilege or benefit of a pecuniary natures. Both mean: a “special right or advantage”

Question 13

Elements of ‘Obtaining by deception or causing loss by deception’ (s240(1)(b))

Answer 13

1. By any deception
2. Without claim of right
3. In incurring any debt or liability,
4. Obtains credit

Question 14

Definition: ‘debt’

Answer 14

money owing from one person to another

Question 15

Definition: ‘liability’

Answer 15

legally enforceable financial obligation to pay (e.g. the cost of a meal)

Question 16

Simester and Brookbanks: ‘debt or liability’

Answer 16

the debt or liability must be legally enforceable. This means that if the contract is void or illegal there will be no offence.

Question 17

Definition: ‘credit’

Answer 17

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

Question 18

Elements of ‘Obtaining by deception or causing loss by deception’ (s240(1)(c))

Answer 18

1. By any deception
2. Without claim of right
3. Induces of causes any other person to: deliver over, execute, make, accept, endorse, destroy, or alter
4. Any document, OR Thing capable of being used to derive a pecuniary advantage

Question 19

Definition: ‘deliver over’

Answer 19

to surrender up someone or something

Question 20

Definition: ‘endorse’

Answer 20

to write or sign on a document

Question 21

Definition: ‘execute’

Answer 21

to put a course of action into effect

Question 22

Definition: ‘alter’

Answer 22

to change in character or composition, typically in a comparatively small but significant way

Question 23

Case law: R v Misic

Answer 23

“essentially a document is a thing which provides evidence or information or serves as a record.”

Question 24

Definition: ‘accept’

Answer 24

to receive something

Question 25

Simester and Brookbanks: ‘thing’

Answer 25

the ‘thing’ must be tangible AND must be capable of being used to derive a pecuniary advantage

Question 26

Elements of ‘Obtaining by deception or causing loss by deception’ (s240(1)(d))

Answer 26

1. By any deception
2. Without claim of right
3. Causes loss to any other person

Question 27

Definition: ‘loss’

Answer 27

The term ‘loss’ is not defined by statute, but in most cases will involve financial detriment to the victim

Question 28

Case law: Morley v R

Answer 28

“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.”

Question 29

What must the prosecution prove for ‘Obtaining by deception or causing loss by deception’ (s240(1)(d))?

Answer 29

• 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.