Deception Flashcards
Crimes Act definition of Obtain
S217 C.A61
(In relation to any person) means obtain or retain for himself or herself or for any other person.
Crimes Act definition of Property
S2 C.A61
Includes any real and personal property, and any estate or interest in any real or personal property, money, electricity and any debt, and anything in action and any other right or interest.
Service defintion
Service is limited to financial or economic value and excludes privileges or benefits
What is the case law that explores the definition of Pecuniary advantage?
Hayes v R
Hayes v R - what held in relation to pecuniary advantage?
A pecuniary advantage is “anything that enhances the accused financial position. It is that enhancement which constitutes the element of an advantage”
Pecuniary Advantage definition
Hayes v R - anything that enhances the accuseds financial position. It is that enhancement which constitutes the element of an advantage.
Valuable consideration definition
R v Hayes - anything capable of being a valuable consideration, whether monetary kind or of any other kind; in short, money or moneys worth.
Hayes v R - what held in relation to valuable consideration?
A Valuable Consideration is anything capable of being a valuable consideration, whether monetary kind or of any other kind; in short, money or moneys worth.
Examples of a 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.
Crimes Act definition of Dishonestly
217 CA.61
(In relation to act or omission) means done or omitted without a belief that there was expressed or implied consent to, or authority for, the act or omission from a person entitled to give such permission.
What was held in Hayes v R in relation to dishonesty
- the objective facts of a case may be such that the jury can infer that the defendant had a dishonest mind unless he / she can prove a reasonable doubt on the basis of a relevant but mistaken belief. Therefore, 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 it was actually held.
What two types of belief can be held to negate dishonesty?
- That the act or omission was expressly, or impliedly, consented to by a person entitled to give consent or
- That the act or omission was authorised by a person entitled to authorise it.
Crimes Act Definition of Claim of Right
S2 CA.61
(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.
Does the belief have to be reasonable when proving Claim of Right?
The belief as to a proprietary or possessory right in the property 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.
What did the Crimes Ammendment Act ammend in relation to Claim of Right?
Previously the defendant was required to have a belief “that the act was lawful” where the revised wording of the definition requires that the defendant have, at the time of the act alleged to constitute the offence, a belief in a proprietary or possessory right in the property in relation to which the offence is alleged to have been committed.
What is the nature of belief required in relation to Claim of Right? (First point)
The belief must be a belief in the proprietary or possessory right in the property. Relates to an element of ownership or a right to take / retain possession of and can include intangible property (in appropriate cases.
What is the nature of belief required in relation to Claim of Right? (Second point)
The belief must be about rights to the “property in relation to which the offence is alleged to have been committed”.
A belief that the defendant had proprietary or possessory rights in relation to other property and was therefore in some way justified in taking or dealing with the property in regard to which the offence was alleged to have been committed.
What is the nature of belief required in relation to Claim of Right? (Third point)
The belief must be held at the time of the conduct alleged to constitute the offence.
What is the nature of belief required in relation to Claim of Right? (Fourth and final point)
The belief must be actually held by the defendant. The belief is not required to be reasonable or be reasonable held and may be based on ignorance or mistake. However, the reasonable of the belief may be relevant in determining whether the defendants assertion of the belief is credible.
Crimes Act definition of Taking
“Taking” is not defined by statute. Instead the definition is taken from the definition of theft as contained within s219 CA. 61
For tangible property, theft is committed by a taking when the offender moves the property or causes it to be moved.
What does “taking” include?
Ownership, possession or control that is directly or indirectly obtained and includes coming into possession with, or without, the consent of the owner.
Document definition - 217(a)
Any paper or other material used for writing or printing that is marked with matter capable of being read.
Document definition - 217(b)
Any photograph, or any photographic negative, plate, slide, film, or microfilm, or any photostatic negative
Document definition - 217(c)
Any disc, tape, wire, sound track, card, or other material or device in or on which information, sounds or other data are recorded, stored, or embodied so as to be capable, with or without the aid of some other equipment, of being reproduced
Document defintion - 217(d)
Any material by means of which information is supplied, whether directly or by means of any equipment, to any device used for recording or storing or processing information; or
Document definition - 217(e)
Any material derived, whether directly or by means of any equipment, from information recorded or stored or processed by any device used for recording or storing or processing information
What is the short definition for document?
R v Misic - Essentially, a document is a thing which provides evidence or information or serves as a record.
R v Misic (document)
Essentially, a document is a thing which provides evidence or information or serves as a record.
What happens to the definition of a ‘document’ as technology changes?
This does not change the fundamental purpose of the technology nor a conceptual appreciation of that function. Legislation must be interpreted with that in mind.
What must the prosecution prove in relation to “uses” or “attempts to use”?
The prosecution must prove that the offender used (or attempted to use) the document with the intent to obtain the property, service, valuable consideration or pecuniary advantage.
Hayes v R on “uses” or “attempts to use”
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. The concept of attempt relates to use not to the ultimate obtaining of a pecuniary advantage which is not a necessary element of the offence. Because the use does not have to be successful it may be difficult to draw a clear line between use and an attempted use.
Is section 72 CA 61 an offence?
S72 CA.61 is not in itself an offence of ‘attempt’. It is simply a definition of attempt that applies to all offences.
S72 CA.61 attempts definition
Everyone who, having an intent to commit an offence, does or omits an act for the purpose of accomplishing his objective, is guilty of an attempt to commit the offence intended, whether in the circumstances it was possible to commit the offence or not
What is a question of law (in relation to attempts)?
Whether an act done or omitted with intent to commit an offence is or is not only preparation for the commission of that offence and too remote to constitute an attempt to commit it.
What may constitute an attempt?
An act done or omitted with intent to commit an offence may constitute an attempt if it is immediately or proximately connected with the intended offence, whether or not there was any act unequivocally showing the intent to commit that offence.
Crimes Act definition of ‘deception’ S240(2)(a) CA.61
S240(2)(a) CA.61
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 the material particular or
(ii) is reckless as to whether it is false in the material particular
Crimes Act definition of ‘deception’ S240(2)(b) CA.61
S240(2)(b) CA.61
an omission to disclose a material particular, with intent to deceive any person, in circumstances where there is a duty to disclose it.
Crimes Act definition of ‘deception’ S240(2)(c) CA.61
S240(2)(c) CA.61
A fraudulent device, trick, or stratagem used with intent to deceive any person
Representation definition
‘Representation’ is not defined but examples have included representations about
- a past or present face
- a future event
- an existing intention, opinion, belief, knowledge or other state of mind.
The ‘representation’ must also be false so it must contain a proposition of fact.
False representation definition
Under current law, the representation must be false and the defendant must know or believe that it is false in a material particular, or be reckless whether it is false. Absolute certainty is not required and wilful blindness as to falsity of the statement will suffice.
Is ‘wilful blindness’ sufficient as a false representation?
Absolute certainty as to whether it is false is not required and wilful blindness as to falsity of the statement will suffice.
What must be proved in false representation?
The ‘falsity’ must be proved.
What must be proved in deception?
You must prove;
- 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 to be false in a material particular OR
- was reckless whether it was false in the material
particular.
R v Morley - Intention to deceive
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 the deception.
There is no offence of deception committed unless…
the false statement, non-disclosure, or trick etc is made or used by the defendant for the purpose of deceiving their victim, or in the knowledge that the victim is virtually certain to be deceived.
What is insufficient to prove deception?
It is insufficient that the deception is done in the mere awareness, without so intending, that the victim may be deceived. That would be a case of recklessness and outside the scope of S240(2) CA.61
What does the recklessness in S240(2)(a) relate to?
It only relates to whether a representation is false in a material particular not the intent to deceive.
Who does the deception need to have been made to?
It does not matter. The deception does not need to have been made to the person actually delivering over the property, granting credit, conferring a benefit or suffering a loss. Provided the deception was the cause of the relevant conduct.
Recklessness definition
Cameron v R
Recklessness is established if:
(a) the defendant recognised that there was a real possibility that
(i) his or her actions would bring about the proscribed result and/or
(ii) that the prescribed circumstances existed and
(b) Having regard to that risk those actions were unreasonable.
What part of the “cameron test” is subjective?
Part (a) being “(a) the defendant recognised that there was a real possibility that
(i) his or her actions would bring about the proscribed result and/or
(ii) that the prescribed circumstances existed and”
‘a real possibility’ is substantively the same as something that ‘could well happen’. The defendant needs only to have recognised that the risk is possible. They do not have to consider this risk significant.
What part of the “cameron test” is subjective and objective?
Part “b”, being “Having regard to that risk those actions were unreasonable.”
It looks at whether the defendants actions were objectively reasonably given the risk the defendant understood.
What was held in R v Cameron in respect of subjectivity?
The supreme court held that if the actions of the defendant have no social utility, the running of any risk subjectively appreciated is unreasonable and reckless. Where there is some social utility in the actions of the defendant, whether those actions were unreasonable will depend on “whether a reasonable and prudent person would have taken the risk”.
In the case of recklessness with some social utility, what will be considered?
Where there is some social utility in the actions of the defendant, whether those actions were unreasonable will depend on “whether a reasonable and prudent person would have taken the risk”.
What is an example of no social utility?
A game or ‘Russian roulette’ or personal violence with a risk of serious injury or death.
What is an example of high social utility?
A surgeon undertaking a risky but potentially lifesaving surgery.
Intent definition
There must be an intention to commit the act and anj intention to get a specific result.
What are the three ways a false representation may be made?
Orally (By spoken words)
By conduct
Documentary
What is an example of false representation orally (by spoken words)?
Verbally claiming to own goods that are in fact subject to a hire purchase agreement.
What is an example of false representation by conduct?
Representing oneself to be a collector for charity by appearing to be carrying an official collection bag.,
What is an example of false representation by documentary?
Presenting a false certificate of qualification or completing a valueless cheque on an account in which there are no funds, knowing the cheque will not be honoured.
What must you consider when determining whether a defendant has made a false representation?
It is possible to look beyond the literal meaning of express words used by the defendant and consider whether a particular meaning can be IMPLIED from his or her conduct.
R v MORLEY - representation
Representations must relate to a statement of existing fact, rather than a statement of future intention.
What must you analyse in relation to a false representation?
What MEANING was conveyed to the party that now complains of a false represenation.
Can false representation have a continuing effect?
In many cases, a representation by words or conduct may have a continuing effect.
Continuing effect example
Entering a restaurant and ordering dinner represents that the diner will follow the normal practice and pay for the meal. IF during the course of 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 in relation to silence and representation?
The general rule is that silence or non disclosure will not be regarded as a representation, but there are exceptions.
What are the exceptions to silence not being considered as representation?
an example is where an incorrect understanding is implied from a course of dealing and the defendant has failed to negate that incorrect understanding.
What was held in Police v Dronjak in relation to silence?
It was commented that by maintaining silence in the face of a mistake known to him and by deliberately refraining from drawing the checkout assistants attention to the mistake, Dronjak had obtained title to the radio by a false pretence.
What must the prosecution prove in relation to knowledge of a false representation?
THe prosecution must prove that the defendant knew that the representation was false in a material particular or was reckless as to its falsity. Absolute certainty is not required.
How can ‘knowledge’ be established?
- An admission
- Implication from the circumstances surrounding the event
- Propensity evidence
‘Material particular’ definition
It is not defined in the crimes act and can be given its usual meaning of ‘an important, essential or relevant detail or item’
What was held in R v Mallett regarding the definition of a ‘material particular’?
That “A matter will be a ‘material particular’ if it is something important or something that matters”
Omission definition
‘Omission’ is not defined in the Crimes Act.
An omission is inaction. i.e not acting.
It can either be a conscious decision not to do something or not giving thought to the matter at all.
What must you prove under S240(2)(b) ‘duty to disclose’
You must prove
- that there was some material particular that was not disclosed
- that the defendant was under a duty to disclose and
- that the defendant failed to perform that duty
Where will a ‘duty to disclose’ offence arise?
It will often originate in civil law e.g. where the parties are in a contractual relationship
What does S240(2)(c) CA 61 cover?
this section concerns a fraudulent device, trick, or strategem used with intent to deceive any person.
This provision introduces a general; criminal offence of fraud and effectively covers any form of fraudulent conduct.