Deception Flashcards
Section 228(1)(a), CA 61
Dishonestly taking a document
Elements
-dishonestly
-without claim of right
-takes or obtains
-any document
-with intent to obtain any property/service/pecuniary advantage/valuable consideration
R v Misic document
R v collister intent
R v Cara service
Hayes v R PA/VC
Section 228(1)(b)
Dishonestly using a document
Elements
-dishonesty
-without claim of right
-uses/attempts to use
-any document
- with intent to obtain any property/serivce/PA/VC
R v Misic document
R v collister
R v Cara
Hayes v R
Section 240(1)(a), CA61
Obtaining by deception
Elements
-by any deception
-without claim of right
-Obtains ownership/possession/ control over any…
Service/pecuniary advantage/benefit/valuable consideration
– directly or indirectly
Section 240(1)(b), CA61
Obtaining by deception
Elements
– by any deception
– without claim of right
– in incurring any debt or liability
– obtains credit
Section 240(1)(d), CA61
Causing loss by deception
Elements
-By any deception
-without claim of right
– causes loss to any other person
Obtain
In relation to any person means obtain or retain for himself or herself or for any other person
Property
Property includes real impersonal property and any estate or interest in any real or personal property money electricity in any debt and anything in action and any other right or interest
Service
Service is limited to activity having financial or economic value, and excludes privileges or benefits
Pecuniary advantage
Cash/a discount/avoiding deferring debt payments
Hayes v R
A pecuniary advantage is anything that enhances the accused financial position. It is their enhancement which constitutes the element of advantage.
Valuable consideration
Wider scope than pecuniary advantage
Hayes v R
Anything capable of being valuable consideration, whether of a monetary kind or of any other kind, money or moneys worth
Dishonestly
In relation to an act or a mission means done or omitted without a belief that there was express or implied consent to, or authority for, the act or a omission from a person entitled to give such consent or authority
Claim of right
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, although that belief maybe 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
Takes or obtains
Is not specifically defined by statute but is the same as theft
Theft is committed by taking when the offender moves the property or causes it to be move
Uses/ attempts to use
Caselaw
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. The concept of attempt relates to use not to the ultimate obtaining of a pecuniary advantage , which is not a necessary ingredient of the offence. Because the use does not have to be successful it may be difficult to draw a clear line between use in attempted use
Attempt-proximal to actual offence but not complete due to inept or external factor 
Document
(Caselaw)
R v Misic
Essentially a document is a thing which provides evidence or information or serves as a record
Deception definition
a) a false representation with oral documentary or by conduct with a person intends to deceive any other person and..
i) knows that it is false and a material particular or
ii) is reckless as to whether it is false in a material particular
b) in emission to disclose a material particular within intent to deceive any person in circumstances where there is a duty to disclose it
C) fraudulent device trick or strategem used with intent to receive any person
Deception-what is required to be proved?
-that there was intent to deceive
– that there was a representation by the defendant
– that the representation was false, and either they knew it to be false or was reckless whether it was false
Intention to deceive Caselaw
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 the deception
Knowledge +caselaw
Knowledge can be established by
-admissions
-implication from the circumstances
-propensity evidence
Simester and brookbanks- principle of law
Knowing means “knowing or correctly believing “. The defendant may believe something wrongly but cannot know something that is false
Duty to disclose caselaw
R v Love
Deliberate failure to disclose some material matter by a person who has a duty to disclose it will come within the definition of deception 
Fraudulent device/trick/strategem
Device -plan, scheme, trick
Trick - action or scheme undertaken to fool outwit or deceive
strategem - cunning plan or scheme especially for deceiving an enemy or trickery
Privilege or benefit
Special right or advantage
Obtains ownership/possession/control over
R v Cox
Physical and mental possession:
Physical -actual and potential
Does not require actual physical control - can be potential physical
‘ possession involves two elements. The first often called the physical element is actual or potential physical custody or control. The second often described as the mental element is a combination of knowledge and intention: knowledge in the sense of an awareness by the accused that the substance is in his position, and an intention to exercise possession .
Debt or liability,
Credit
Debt means money owing from one person to another
Liability means illegally enforceable financial obligation to pay e.g. cost of a meal
credit obligation on the debtor to pay or repay, and the time given for them to do so by the creditor
Loss definition
What is to be proved? Caselaw
Not defined by statute but in most cases will involve financial detriment to the victim.
R v Morley
‘Prosecution must prove
- Loss was caused by deception
- it was reasonably foreseeable some more than trivial loss would occur
– space the prosecution need not prove the loss was intentionally caused
There is no requirement that there be any benefit to anyone’
Obtaining by deception penalties
Under $500 - 3 months
$500-$1000 - 12 months imprisonment
Over $1000 - 7 years
Title- theft vs dishonesty
Theft- title is not transferred
Dishonestly obtain - title (voidable) is transferred
