Deception

Question 1

In what section would you find the offences for dishonestly taking or using a document ?

Answer 1

228(1) of the Crimes Act 1961

(a) takes/obtains
(b) uses/attempts to use

Question 2

Elements of 228(1)(a)?

Answer 2

• dishonestly
• without claim of right
• takes/obtains
• any document
• with intent to obtain any (prop/service/pecad/valcon)

Question 3

Elements of 228(1)(b)

Answer 3

• dishonestly
• without claim of right
• uses/attempts to use
• any document
• with intent to obtain any (prop/service/pecad/valcon)

Question 4

What is s240(1)(a) and (b) ?

Answer 4

240(1)(A) Obtains by deception
240(1)(B) Obtains (credit) by deception

Question 5

What is 240(1)(d)?

Answer 5

Cause loss by deception

Question 6

Define deception?

Answer 6

Representation that is false (oral, documentation or by conduct)

+ an intent to deceive any other person R v Morely

+ knowledge the representation is false (either knew it was false or was reckless)

Question 7

What does R v Morely say regarding cause loss by deception?

Answer 7

Prosecution must prove:
- a direct loss was caused by the deception
- it was reasonably foreseeable that more than some trivial loss would occur
- prosecution doesn’t need to prove intent to cause loss

Question 8

Discuss knowledge using Simester and Brookbanks?

Answer 8

According to simester and brookbanks, knowledge means “knowing is correctly believing”

You can believe something wrongly but cannot know something false.

Knowledge can be established by
- an admission
- implication from circumstantial evidence
- propensity evidence

Question 9

What’s the difference between theft and obtaining by deception?

Answer 9

In theft, property is obtained without the owners permission, and therefore they only get possession, and never “title or ownership”

In obtains by deception, the owner has freely given the offender possession/and or ownership

Question 10

Define debt

Answer 10

Money owning from one person to anothrr

Question 11

Define “without claim of right”

Answer 11

No belief in a proprietary or possessory right

Belief (3)
- belief that it exists at the time of act
- relates to property involved in offence
- a genuine belief (but can be based on ignorance)

Question 12

Define “dishonestly”

Answer 12

Without express or implied consent or authority from entitled consent

Question 13

Define “takes”

Answer 13

Complete when offender moves property or causes it to be moved

Question 14

Define obtains

Answer 14

Obtain or retain for themselves or another

Question 15

Discuss the definition of “Document”

Answer 15

R v Misic defines a document as essentially a thing which provides evidence or information or serves as a record

Question 16

Define uses

Answer 16

Could be single action or a continuing use over a period of time

Question 17

Attempts to use… what is the relevant caselaw?

Answer 17

Hayes v R states an unsuccessful use is as much a use as a successful one. The concept of attempt relates to use, not to the ultimate obtaining of a pecuniary advantage etc

Question 18

Define property

Answer 18

Includes any real or personal property, may be tangible or intangible…

Question 19

Define service (what case law relates)?

Answer 19

R v Cara- an ACTIVITY having an element of FINANCIAL or ECONOMIC value

Question 20

Define pecuniary advantage?

Answer 20

Anything that enhances the accused’s financial position. The enhancement constitutes the element of advantage. (hayes v R)

Question 21

Define valuable consideration?

Answer 21

Money or money’s worth (Hayes v R)

Question 22

Define privilege

Answer 22

Special right or advantage

Question 23

Define liability

Answer 23

Legally enforceable financial obligation to pay

Question 24

Define credit

Answer 24

Obligation on the debtor to pay or repay

Question 25

In 240(1)(d), do you need to prove an intent to cause the loss? Or that the defendant made some financial gain?

Answer 25

No!

Question 26

What does title mean?

Answer 26

A legal right to the property

Question 27

What is a voidable title?

Answer 27

A title obtained by deception fraud duress or misrepresentation is called a “voidable title”

Meaning, it can be voided by the seller

Question 28

What happens if

Brandon obtains a car by deceiving Aaron. He then sells to Charlie (a genuine buyer). After this, Aaron voids the cars title.

Answer 28

Charlie keeps the car because it had title when he purchased it in good faith. He is not liable for anything

Question 29

What happens if

Brandon obtains a car from Aaron by deception. Aaron then voids the title. Brandon then sells the car to Charlie, a genuine buyer.

Answer 29

Aaron gets the car back because Charlie never had title (it was voided prior to the purchase)

Charlie is not liable for anything

Question 30

What happens if

Brandon obtains a car by deceiving Aaron. Aaron quickly voids the title. Brandon then gives the car to Jono, a knowing receiver.

Answer 30

Aaron gets his car back, because he voided title before anything else happened.

Jono is liable for receiving.

Question 31

What happens if

Brandon obtains a car by deceiving Aaron. Brandon quickly passes the car on to his friend Jono, a knowing receiver. Aaron then voids title.

Answer 31

Aaron gets his car back!

But Jono is not liable for receiving (because the car had title when he got it)