Deception Flashcards
Dishonestly Taking a Document
(Act & Section)
Section 228(1)(a), Crimes Act 1961
Dishonestly Taking a Document
228(1)(a)
(elements)
- Everyone
- With intent to obtain any property, service, pecuniary advantage, or valuable consideration
- Dishonestly
- Without claim of right
- Takes or obtains
- Any document
Dishonestly Using a Document
(Act & Section)
Section 228(1)(b), Crimes Act 1961
Dishonestly Using a Document
228(1)(b)
(Elements)
- Everyone
- With intent to obtain any property, service, pecuniary advantage, or valuable consideration
- Dishonestly
- Without claim of right
- Uses or attempts to use
- Any document
Dishonestly Taking or Using a Document
(Penalty)
7 years imprisonment
Obtain
(define)
obtain, in relation to any person, means to obtain or retain for himself or herself or for any other person.
Property
(define)
Property includes any real or 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
(define)
R v Cara
“Service is limited to financial or economic value and Excludes privileges or benifits”
Pecuniary Advantage
(Case Law)
Hayes v R
Hayes v R held
(pecuniary advantage)
A pecuniary advantage is “anything that enhances the accused’s financial position. It is that enhancement which constitutes the element of advantage.
Valuable consideration
(define)
Hayes v R
“anything capable of being valuable consideration, whether of a monetary kind or of any other kind; in short, money or money’s worth.”
Valuable consideration
(examples)
- 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.
Dishonestly
(define)
Dishonestly, in relation to an act or ommission, means done or omitted without a belief that there was express or implied consent to, or authority for, the act or omission from a person entitled to give such consent or authority.
Dishonestly
(case law)
Hayes v R
Hayes v R held
(dishonestly belief)
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 the belief was actually held.
claim of right
(define)
claim of right, in relation to any act, means a belief in a proprietary or possessory right in property in relation to which the offence is alleged to have been committed, although that belief 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.
Nature of belief in claim of right
(4 points)
First - must be a belief in a proprietary or possessory right in property.
Second - belief must be for the property in relation to the alleged offence
Third - the belief must be held at the time the alleged offence was committed.
Fourth - the belief must be actually held by the defendant. Does not need to be reasonable, and can be a mistake or ignorance. The reasonableness will influence the credibility of the belief.
Take
(define)
For tangible property, theft is committed by a taking when the offender moves the property or causes it to be moved.
Document
(define)
document means a document, or part of a document, in any form; and includes without limitation, -
(a), (b), (c), (d), (e)
Document (a)
(define)
any paper or other material used for writing or printing that is marked with matter capable of being read
Document (b)
(define)
(b) any Bhotograph, or any photographic negative, plate, slide, film, or microfilm, or any photostatic negative
Document (c)
(define)
(c) any disC, tape, wire, sound track, card, or other material or device in or on which information, sound or other data are recorded, stored (whether temporarily or permanently), or embodied so as to be capable, with or without the aid of some other equipment, of being reproduced
Document (d)
(define)
(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
Document (e)
(define)
(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.
Document
(case law)
R v Misic
R v Misic held
“Essentially a document is a thing which provides
- evidence or
- information or
- serves as a record.”
Uses or attempts to use
(case law)
Hayes v R
R v Hayes held
(use/attempted use)
“An unsuccessful use of a document is as much a 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 attempted use.
Definition of Attempts (1)
- Everyone who,
- Having an intent to commit an offence,
- does or omits an act for the purpose of accomplishing his object
- is guilty of an attempt to commit the offence
- whether in the circumstances it was possible to commit the offence or not
Definition of Attempts (2)
The question 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, is a question of law
Definition of Attempts (3)
An act done or omitted with intent to commit an offence may constitute an attempt if it is done immediately or proximately connected with the intended offence, whether or not there was any act unequivocally showing the intent to commit that offence.
Obtaining Property by Deception
(Act & Section)
Section 240(1)(a), Crimes Act 1961
Obtaining Property by Deception
(elements)
- Everyone who
- by any deception
- without claim of right
- obtains ownership or possession of or control over
- any property, privilege, service, pecuniary advantage, benefit, valuable consideration
- directly or indirectly
Obtaining Credit by Deception
(Act & Section)
Section 240(1)(b), Crimes Act 1961
Obtaining Credit by Deception
(elements)
- Everyone who
- by any deception
- without claim of right
- in incurring any debt or liability
- obtains credit
Obtaining by Deception
Altering documents
(Act & Section)
Section 240(1)(c), Crimes Act 1961
Obtain by deception
Altering documents
(elements)
- Everyone who
- by any deception
- without claim of right
- induces or 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
Causing Loss by Deception
(Act & Section)
Section 240(1)(d), Crimes Act 1961
Causing Loss by Deception
(elements)
- Everyone who
- by any deception
- without claim of right
- causes loss to any other person
Deception
(define)
(3 parts a b & c)
Section 240(2)
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 any person.
Representation
(define)
Not defined, but Semester & Brookbanks suggest “it must be capable of being false so it must contain a proposition of fact”
False representation
(important points)
- must be false in a material particular
- defendant must know it is false in a material particular or
- be reckless whether it is false
- wilful blindness will suffice
Must proves for deception
(4 parts)
- 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 a material particular
Intent to deceive
(case law)
R v Morely
R v Morely held
(Intent 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.
Recklessness
(case law)
Cameron v R
Cameron v R held
Recklessness is established if:
(a) the defendant recognized that there was a real possibility that:
(i) his or her actions would bring about the proscribed result and/or
(ii) that the proscribed circumstances existed; and
(b) having regard to that risk those actions were unreasonable
Intent
(define)
- A deliberate act, and
- Intent to Produce a Specific Result
Deception Examples
Orally
Verbally claiming to own goods that are in fact subject to a hire purchase agreement.
Or R v Caslin the false prostitute.
Deception Examples
by conduct
Representing oneself to be a collector for charity by appearing to be carrying an official collection bag.
Or R v Barnard the fake student in cap and gown.
Deception Examples
Documentary
Presenting a false certificate of qualification, or completing valueless cheques.
A representation by the defendant
(case law)
R v Morely
R v Morely held
(representation)
Representations must relate to a statement of existing fact, rather than a statement or future intention.
Silence as a representation
As a general rule silence or non-disclosure will not be regarded as a representation.
The exception is label swapping, where you don’t tell a shop keeper the price is wrong.
Police v Dronjak - 2 labels and knew the wrong price
Rao v Police - actively swapped the price tags.