Deception

Question 1

List the section elements and punishment for:
Dishonestly Taking A Document

Answer 1

Dishonestly Taking A Document
S.228 (1)(a) CA1961
7 yrs Imprisonment

-Dishonestly
-Without Claim of Right
-Takes (or) obtains
-Any Document
-With intent to obtain any: benefit (or) service (or) pecuniary advantage (or) valuable consideration

Question 2

List the section elements and punishment for:
Dishonestly Using A Document

Answer 2

Dishonestly Using A Document
S.228 (1)(b) CA1961
7 yrs Imprisonment

-Dishonestly
-Without Claim of Right
-Uses (or) attempts to use
-Any document
-With intent to obtain any: benefit (or) service (or) pecuniary advantage (or) valuable consideration

Question 3

Define ‘Obtain’

Answer 3

To obtain or retain for oneself or for someone else

Question 4

Define ‘Property’

Answer 4

Property is the real and personal property of a person including any estate or interest in any real or personal property

Question 5

Define ‘Pecuniary Advantage’

Answer 5

A pecuniary advantage is anything that improves the financial position of the accused (Hayes v R)

Question 6

What was held in Hayes v R in relation to a pecuniary advantage

Answer 6

Hayes v R held that “A pecuniary advantage is anything that enhances the accused’s financial position, it is the enhancement which constitutes the advantage”

Question 7

Define ‘ Valuable Consideration’

Answer 7

A valuable consideration is anything capable of being valuable consideration whether of a monetary kind or not, in short, money or moneys worth (Hayes v R)

Question 8

List three examples of a ‘valuable consideration’

Answer 8

• Monetary payment for goods or services
• Goods given in return for services provided
• Issuing a false invoice to receive payment for goods never supplied

Question 9

Define ‘Dishonestly’

Answer 9

An act or omission done 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 (S.217 CA1961)

Question 10

Hayes v R stated that “the objective facts of a particular case may be such that the jury can properly infer that the defendant had a dishonest mind unless he or she can raise a reasonable doubt on the basis of a relevant but mistaken belief”

What are the two basis on which this mistaken belief may be based?

Answer 10

A persons actions or omissions may not be deemed dishonest if they had a relevant but mistaken belief 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

Question 11

Define ‘Claim of Right’ verbatim

Answer 11

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 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

Question 12

There are four beliefs in relation to a ‘claim of right’ being used a defence an offence

Discuss the four beliefs that must be held in relation to a ‘claim of right’

Answer 12

1. There must be a belief in a proprietary or possessory right to the property in question
2. The belief in the proprietary or possessory right must be in relation to the property for which the offence relates, not some other unrelated property
3. The belief must be held at the time the conduct alleged to constitute the offence has occurred
4. The belief must actually be held by the defendant. The belief may be based on ignorance or mistake and doesn’t have to be reasonable, although the reasonableness of the belief may go towards proving/disproving the belief was actually held

Question 13

When is taking complete?

Answer 13

Taking is complete as soon as the property is moved or causes it to be moved

Question 14

Define ‘Document’

Answer 14

A document is a thing which provides evidence or information or serves as a record (R v Misic)

Question 15

What was held in R v Misic in relation to a document?

Answer 15

” A document is a thing which provides evidence or information or serves as a record”

Question 16

What was held in Hayes v R in relation to the use of a document?

Answer 16

Hayes v R held that “An unsuccessful use of a document is as much a use as a successful one”

Question 17

Define ‘Attempts’

Answer 17

An attempt can be defined as an act or omission done or omitted for the purpose of accomplishing an intended objective or outcome

Question 18

List the section and elements for:

Obtaining by Deception (Property)

Answer 18

Obtaining by Deception
S.240(1)(a) CA1961

-By any deception
-Without claim of right
-Obtains any; ownership (or) possession (or) control over
-Any property (or) privilege (or) service (or) pecuniary advantage (or) benefit (or) valuable consideration
-Directly (or) Indirectly

Question 19

List the section and elements for:

Obtaining by Deception (Debt)

Answer 19

Obtaining by Deception
S.240(1)(b) CA1961

-By any deception
-Without claim of right
-In incurring any debt (or) liability
-Obtains credit

Question 20

List the section and elements and for:

Obtaining by Deception (Loss)

Answer 20

Obtaining by Deception
S.240(1)(d) CA1961

-By any deception
-Without claim of right
-Causes loss to any other person

Question 21

Define ‘Deception’

Answer 21

A deception is a false representation, whether oral, documentary or by conduct where the person making the representation intends to deceive any other person and;

• Knows that it is false in a material particular (or)
• Is reckless as to whether it is false in a material particular

A deception can also be:

-An omission to disclose a material particular with intent to deceive any person in circumstances where there is a duty to disclose it

-A fraudulent device, trick or stratagem used with intent to deceive someone

Question 22

What is the essential element of a ‘Representation’

Answer 22

A representation must be capable of being false, so therefore, it must contain a proposition of fact

Question 23

What elements must the prosecution prove in relation to ‘Deception’

Answer 23

In order to prove a deception you must prove:

• There was an intent to deceive
• 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

Question 24

What must be proved in relation to a ‘False Representation’

Answer 24

You must prove that:

-The defendant knew (or) believed that the representation was false in a material particular

• Or was reckless as to whether it was false in a material particular

You must also prove that each representation was false if there was more than one

Question 25

What was held in R v Morley in relation to a defendant’s intention to deceive?

Answer 25

R v Morley held that:

‘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”

Question 26

Who does the deception have to have been made to for the offence of obtains by deception?

Answer 26

The deception need not have been made to the person actually delivering over the property, granting credit, conferring a benefit or suffer a loss, provided that the deception was the cause of the relevant loss

Question 27

What was held in Cameron v R in relation to recklessness?

Answer 27

Cameron v R held that:

“Recklessness is established if the defendant recognised the real possibility that their actions would bring about the proscribed result and/or the proscribed circumstances existed, AND having regard for those risks their actions were unreasonable

Question 28

What is an example of an oral false representation?

Answer 28

Verbally claiming to own goods that are in fact subject to a hire purchase agreement

Question 29

What is an example of a false representation by conduct?

Answer 29

Representing yourself as a collector for a charity by carrying an official collector bag or wearing a uniform

Question 30

What is an example of a documentary false representation?

Answer 30

Presenting a false certificate for a qualification

Question 31

What was held in R v Morley in relation to a false representation?

Answer 31

R v Morley held that “representations must relate to a statement of existing fact, rather than a future intention”

Question 32

What is the relevance of ‘continuing effect’ in relation to false representations?

Answer 32

In many case representations by words or conduct can have a continuing effect.

For example entering a restaurant and ordering dinner represents that the parties will pay for the meal at the ends as per normal practice. However they decide to leave without paying the continuing effect of their representation by conduct becomes a false representation and is subject to a charge under S.240 Obtains by Deception

Question 33

In what circumstances could ‘silence’ be considered a representation?

Answer 33

As a general rule silence or non-disclosure is not considered a representation, however, in certain circumstances where a person is aware of a mistake and fails to draw the attention of the mistake to the other person and in doing so obtains some benefit, causes loss or incurs any debt the persons silence about the mistake could be considered a ‘representation’

E.g. When an item is known to have the wrong price tag but the person buying it does not make the seller aware and as such obtains the property at a cheaper price than they should have

Question 34

What is meant by ‘material particular’?

Answer 34

Material particular is not defined in the crimes act however it can be given its usual meaning of ‘important, essential or relevant detail’

Question 35

What was held in R v Mallett in relation to a ‘material particular’?

Answer 35

R v Mallet held that “ A matter will be a ‘material particular’ if it is something important or something that matters”

Question 36

In relation to a ‘fraudulent device, trick or stratagem’ how is fraudulent defined?

Answer 36

In relation to S.240(2)(c) CA1961 fraudulent is defined as “dishonest in a traditional moral sense”

Question 37

What are some examples of of obtaining a benefit or privilege by decpetion?

Answer 37

-Using another persons gym membership card to gain access
-Access to medical services
-The withdrawal of an assault charge
-A reduction in sentence for an offence

Question 38

At what point does a defendant obtain goods?

Answer 38

Goods are obtained when they come under the control of the defendant, even if they do not yet have physical possession of them

E.g When there is an agreement to send something by post (a cheque by post) the obtaining is complete at the time of the posting

Question 39

What is the key difference between the offence of ‘theft’ and ‘obtaining by deception’?

Answer 39

In theft the property is obtained without the permission of the victim and therefore title (legal right to ownership) is not passed on.

Question 40

What was held in R v Cox in relation to possession?

Answer 40

R v Cox held that “Possession involves two elements; physical and mental.

Physical being the actual and potential physical custody and control of the goods and;

Mental being knowledge and intention; having an awareness that they are in possession of the items and an intention to exercise that possession

Question 41

Define ‘control’

Answer 41

To control something is to exercise authoritative or dominating influence or command over it

Question 42

What are some examples of a pecuniary advantage gained by deception?

Answer 42

Cash from selling stolen goods
A discount obtained by using a student ID card
Avoiding or deferring a payment of debt

Question 43

What is the prosecution required to prove in relation to control?

Answer 43

The prosecution does not need to prove that the accused was in actual possession of the property. It may be sufficient that the accused exercised control over the property through an agent

Question 44

Define ‘Liability’

Answer 44

A legally enforceable financial obligation to pay, such as the cost of a meal

Question 45

Define ‘Debt’

Answer 45

A debt is money owing from one person to another

Question 46

What must be proved in relation to a debt or liability?

Answer 46

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

Question 47

Define ‘Credit’

Answer 47

Credit refers to an obligation on the debtor to pay or repay and the time frame to do so given to them by the creditor. (Fisher v Raven)

The obligation to pay must be legally enforceable against whomever the credit is obtained.

Question 48

What does credit not relate to?

Answer 48

Credit does not extend to an obligation to supply services or goods and relates only to money or moneys worth

Question 49

In relation to a credit how is the time to pay relevant?

Answer 49

A credit may involve varying periods or time and can be obtained over length periods e.g a mortgage or for mere minutes e.g the time it takes to get a haircut or to eat a meal

Question 50

What is important to know in relation to gaining credit and an intention to deceive?

Answer 50

Gaining credit is not in itself unlawful unless it is accompanied by an intention to deceive at the time the deception is perpetrated.

A decision not to repay a credit owed at a later date is not sufficient (R v McKay)

Question 51

What was held in R v McKay?

Answer 51

R v McKay held that “the credit had been obtained at the time of booking in (hotel) but that at that time the accused did not possess an intent to deceive”

Question 52

What is an example of the timing of the intent to deceive being important?

Answer 52

When dining at a restaurant and a person leaves without paying in order to convict them of a deception you must prove that at the time they entered the restaurant and sat down to have the meal they intended to deceive by not paying for it.

Question 53

What offence is committed when goods are obtained on hire purchase by a false representation? Would this be the same offence if they were then on sold? If not what offence would it be?

Answer 53

The offence committed when goods are obtained by a false representation is deception.

However if the offender later sells the goods obtained the offence committed is theft by conversion. This is because the offender never received title for the goods obtained fraudulently.

Question 54

What evidence should be used to prove a false representation?

Answer 54

Wherever possible direct evidence from the person alleged to have been defrauded should be used to prove the inducement.

This is usually done by questioning the victim of the deception to prove;
-That the false representation was believed (and)
-That it was the consequence of that belief that led to the victim parting with his or her money

Question 55

What must the prosecution prove in relation to proving an inducement?

Answer 55

The prosecution must prove that the person parting with the property was induced to do so by the false representation made
(R v Laverty)

Question 56

What was held in R v Laverty?

Answer 56

R v Laverty held that “It is necessary for the prosecution to prove that the person parting with the property was induced to do so by the false representation made”

Question 57

Define ‘Deliver Over’

Answer 57

To deliver over is to surrender up to someone or something

Question 58

Define ‘To Execute’

Answer 58

To execute is to put a course of action into effect

Question 59

Define ‘To Endorse’

Answer 59

To endorse something is to write or sign on a document

Question 60

Define ‘To Alter’

Answer 60

To alter something is to change in character or composition, typically in a small but significant way

Question 61

Define ‘To Accept’

Answer 61

To accept is to receive something

Question 62

Define ‘Loss’

Answer 62

Loss is usually defined as financial detriment to the victim

Question 63

What must be proved in relation to causing loss by deception?

Answer 63

For a charge of Causing Loss by Deception S.240 (1)(d) the prosecution must prove;

-The loss was caused by a deception
-It was reasonably foreseeable that some more than trivial loss would occur; but
-DONT have to prove that the loss was intentionally caused

Question 64

Define ‘Propensity Evidence’

Answer 64

Propensity evidence is evidence showing a person has a propensity to act in a certain way or to have a particular state of mind

Question 65

What asre propensity rule 1(a) & (b) of section 40 of the Evidence Act?

Answer 65

Propensity rule (1)(a) & (b) of section 40 of the evidence act states that:

(1)(a) Propensity evidence is evidence that tends to show a persons propensity to act in a particular way or to have a particular state of mind, being evidence of acts, omissions, events or circumstances with which a person is alleged to have been involved in

BUT
(1)(b) does not include evidence of an act or omission that is;
-One of the elements of the offence for which the person is on trial
-the cause of action in the proceeding question

Question 66

Section 43 of the Evidence Act 2006 governs the use of Propensity evidence in criminal proceedings

The prosecution can only offer propensity evidence about a defendant in what circumstances?

Answer 66

The prosecution may offer propensity evidence about a defendant in a criminal proceeding IF:

-the evidence has probative value in relation to an issue in dispute in the proceeding,

which;

-outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant

Question 67

S.43 (3) of the Evidence Act 2006 outlines what things a Judge must consider when assessing the probative value of propensity evidence

List four examples of what must be considered under S.43 (3) of the Evidence Act 2006

Answer 67

The Judge must consider:

(a) The frequency with which the acts, omissions, events or circumstances which are subject of the evidence have occurred

(b) The connection in time between the acts, omissions, events or circumstances which are subject to the evidence and the acts, omissions, events or circumstances which constitute the offence for the defendant is being tried

(c) The extent of the similarity between the acts, omissions, events or circumstances which are subject of the evidence and the acts, omissions, events or circumstances which constitute the offence for which the defendant is being tried

(d) The number of persons making allegations against the defendant that are the same as, or are similar to, the subject of the offence for which the defendant is being tried

(e) Whether the allegations described in (d) may be the result of collusion or suggestibility

(f) The extent to which the acts, omissions, events or circumstances which are the subject of the the evidence and the acts, omissions, events or circumstances which constitute the offence for which the defendant is being tried are unusual

Question 68

What did R v Sharma hold in relation to propensity evidence?

Answer 68

R v Sharma held that “The ultimate issues is the degree to which the probative value of the evidence outweighs it’s prejudicial effect”

Question 69

Define ‘Title’

Answer 69

Title can be defined as a legal right to own something

Question 70

What is the material difference between theft and obtaining by deceit in relation to title?

Answer 70

The material difference between theft and obtaining by deceit in relation to title is that a thief never gets title.

However a person who by deception or some other deceit induces another to hand over the goods (and title) the title will too be passed

Question 71

What is a ‘voidable title’

Answer 71

A voidable title is a title obtained by deception, fraud, duress or misrepresentation and is voidable by the seller

Question 72

What is outlined in section 246(4) CA1961 in relation to receiving?

Answer 72

Section 246(4) is an exception to the rule that you cannot get a better title than the seller, meaning;

If the original purchaser (who obtains voidable title) subsequently sells the goods on to an innocent buyer (who is not aware of the voidable status of the title) then the title has been made legal and is no longer voidable.

The effect of this is that a person, who in certain circumstances may technically be a ‘receiver’, cannot be convicted of receiving from a fraudulent offender who has a voidable title to goods obtained dishonestly by means of a deception .

Question 73

What does S.149 CA1961 refer to in relation to title?

Answer 73

A person cannot give better title to property than they own, meaning that where the seller who has no rights of ownership to the goods, acts without the authority of the true owner, purports to pass title to a buyer, that buyer can receive no greater interest in the goods than the seller had.

Question 74

At what stage is title obtained when using hire purchase?

Answer 74

When using hire purchase to buy goods title is not obtained until the goods have been fully paid for.

Question 75

What is the key difference between theft and obtaining by deception?

Answer 75

The difference between theft and obtaining by deception hinges on the concepts of: possession & ownership

If someone has gained something by deception, the owner or person with a special interest in the property has freely given the offender possession and/or ownership of the property (although title may be voidable)

However if someone has gained property by way of theft they have taken it without the owners knowledge or consent and so they have only possession of the property and never title or ownership of it

Question 76

What two elements do you need to prove in relation to S.220 CA1961 Theft by a person in a special relationship?

Answer 76

That the defendant had an obligation to act in a certain way in with the property or to act in accordance with the requirements of another person in relation to the property

AND

They have intentionally departed from that obligation

Question 77

S.220 CA1961 relates to theft by a person in a special relationship.

What are the key aspects of theft by a person in a special relationship?

Answer 77

This section applies to any person who is in a position of, or has control over any property, in circumstances that requires them to;

-Account to any other person for the property, or for any proceedings arising from the property (or)

-To deal with the property, or any proceedings arising from the property in accordance with the requirements of any other person

Question 78

List the section and elements for the offence of Forgery

Answer 78

Forgery
S.256 CA1961

-Makes a false document
-With intent to obtain any:
-Property
-Privilege
-Service
-Pecuniary advantage
-Benefit
-Valuable consideration

Question 79

S.255 CA1961 defines a false document as?

Answer 79

A false document is a document of which the whole or any material part purports to be made by any person who did not make it
(or)

by a fictitious person

Question 80

What are some examples of things you can do to a document to make it false?

Answer 80

You can make a false document by making any material alteration to a genuine document.

Such alterations may involve:
-Additions
-Insertions
-Deletions
-Obliteration’s
-Erasures

Question 81

What must be proved in relation to intent in forgery cases?

Answer 81

The prosecution must prove:

-That at the time of the alleged act the defendant knowing that document was false had intended either to:

-Use that document to obtain (or)
-That the false document be used or acted in as genuine

It is not enough that the document is false and that its maker knows that it is false.

It must also be proved that offender intended to deceive by means of that which is false

Question 82

What are some examples of forgery?

Answer 82

• Writing an exam in the name of another person who is required to sit the exam
  -Pre-dating a deed to give it priority over another matter
  -Forging letters of recommendation for a CV
  -Falsely completing a statement of service on a witness summons

Question 83

What is the key difference between forgery and altering a document?

Answer 83

The differences between forgery and altering or reproducing a document rest in the varying definitions of ‘document’ and ‘intent’

With forgery, an intent to deceive is only required, not an intent to obtain by any deception

However in the offence of altering, concealing, destroying or reproducing a document you must prove that the offender intented to obtain by deception

Question 84

What are the three parts of the mental element of using altered or reproduced documents?

Answer 84

1. The defendant must know that the document had been altered with intent to deceive
2. The defendant must have intended by using the document or by causing another person to use or rely on it to obtain by deception any property, privilege, service, pecuniary advantage, benefit, valuable consideration or to cause loss to any person
3. There must be an intention to acquire or retain the property etc. or to cause cause loss by deception

Question 85

Define Computer System as per S.248 CA1961

Answer 85

S.248 CA1961 defines a computer system as;

(a)
-Any computer (or)
-2 or more interconnected computers (or)
-Any communication links between computers or to remote terminals or another device (or)
-2 or more interconnected computers combined with any communication links between computers or to remote terminals or any other device

(b)
includes any part of the items described in section (a) and all related input, output, processing, storage, software or communications facilities and stored data

Question 86

What is the key difference between S.249 (1) and S.249 (2) in relation to accessing a computer system?

Answer 86

The key difference between S.249(1) & S.249(2) is that in S.249(1) someone accesses the computer system and ACTUALLY obtains the offending material or causes loss.

Whereas om S.249(2) the person access to the computer system with that intent (to obtain privilege etc) but does not actually obtain the material or cause the loss