Deception Flashcards
Hays v R (defendants financial position)
a pecuniary advantage is anything that enhances the accused’s financial position. it is that enhancement which constitues the element of advantage.
Valuable consideration means
money or moneys worth.
Hays v R (belief/ reasonable)
the question is whether the belief is actually hled, not whether that belief is reasonable. however reasonableness may be relevant as evidence on the issue of whether the belief was actually held.
R v Misic
essentually a document is a thing which provides evidence or information or serves as a record
Hays r V (successful/ unsuccessful use of a document)
an unsuccessful use of a document is as much use as a successful one.
An unsuccessful use does not equal an attempted use.
The concept of attempt relates to use, not to the ultimate obtaining of a pecuniary advantange (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.
deception defined
(A)a false representation, whether oral, documentary, or by conduct where the person making the representation intends to deceive any other person and
know that it is false in a material particular
or
is reckless as to whether it is false in a material particular.
(B) ommission to disclose information when there is a duty to disclose it, with intent to deceive any person.
(C) a fraudulant device, trick, stretegy used with intent to decieve any person.
definition of representation
must be capable of being false so it must contain a proposition of fact.
false representation definition
representation must be false and defendant must know/believe/ be reckless as to whether information is false.
Absolute certainty not required, wilful blindness as to falsity it sufficient.
What must you prove- deception
they had an intent to deceive.
there was a representation by the defendant.
that representation was false by either…
knowing it to be false in a material particular
or
was reckless as to whether it was false in a material particular.
R v MORELY (intent go deceive)
an intention to deceive requires that the deception is practised in order to deceive the affect party.
purposeful intent is neccessary and must exist at the time of the deception
Cameron v R
reckless is established if they recognise that there was a real possilbility that…
Their actions would bring about a prescribed result… and having regard to that risk those actions were unreasonable.
intent
deliberate act, specific outcome.
orally (example)
verbally claiming to own goods that are subject to a hire purchase agreement
by conduct (example)
representing oneself as a collector for a charity by appearing to carry an official collection bag.
documentary (example)
presenting a false certificate of qualification.
R V MORELY (representation)
representations must relate to a statement of existing fact, rather than a statement of future intention
knowledge means (simester and brookes)
knowing or correctly believing.
you may beleive something wrongly but you cannot know somthing that is false
knowledge is established by
an admission
implication from the circumstances surrounding the event
propensity evidence
material particular definition
important, essential, relevant detail or item.
IE something important or something that matters.
duty to disclose is often seen where?
in civil law, eg, parties are in a contractual relationship.
device definition
a plan scheme or trick
trick definition
an action or scheme undertaken to fool outwit or deceive
strategem
a cunning plan or scheme especially for deceiving an enemy or trickery.
what is the difference between theft and deception
in theft the property is obtained without the owners permission and title is not passed on.
what is title?
the legal right to property
R v COX
possession involves two elements.
the physical element -actual or potential physical custody or control.
mental element- the combination of knowledge and intention. (awareness that it is in their possession and intention to exercise possession)
what is a lien
a right to keep possession of property belonging to another person until a debt owed by that person is paid off
is it sufficient to charge someone with dishonestly obtained property, if you find property at their premises?
no, you need to prove that they had exercised control over the property.
what must you prove in obtaining credit by deception
- they deceived wocor
- they incurred any debt or liability
- obtained credit
in obtaining credit by deception is there any offence if the contract is void or the contract is illegal?
there is no offence, the debt or liability must be legally enforceable.
Fisher v Raven
credit refers to the obligation
on the debtor to pay or repay
and the time they are given to do so by the creditor.
credit does not extend to an obligation
to supply goods or services.
examples of situations where credit may be obtained
- extending existing overdraft facilities.
- obtaining money on a loan.
- renting/leasing a dwelling
delayed or non payment of debt
it is not an offence to simply delay payment or to be unable to pay due to unforseen circumstances as this lacks intent
R v Mackay
on appeal it was held that the credit had been obtained on booking in,
but at that time the accused did not possess an intent to decieve.
payments witheld- goods and services
it is not an offence to withhold payment due to dissatisfaction in service/goods
hire purchases obtained under deception
goods obtained on hire purchase by a false representation = deception
if the offender later sells the goods to another the offender commits theft by conversion.
the offender never received title of those good fraudulently obtained through the hire purchase.
induce meaning
to pursuade, bring about, give rise to.
what needs to be proven for ‘inducement’
- the victim believed the false representation.
- their belief resulted in them parting with their money.
R v Laverty
it is neccessary for the prosecution
to prove that the person
parting with the property
was induced to do so
by the false representation made.
what must the defendant ‘cause’ (altering documents capable of causing pecuniary advantage)
Their act must have had a substantial and operative influence in causing loss
altering documents capable of causing pecuniary advantage possible fraudulant proccesses
accept- receive something
alter- change in charactor or composition
deliver over- to surrender up someone or something.
endorse- is to write or sign a document
execute- put a course of action into effect
thing meaning
any tangible object
does the person who suffered the loss have to be the person deceived?
no
person means
real people, companies, organisations
what is the punishment for causing loss (of value) over $1000
7 rs imprisonment
what is the punishment for causing loss (of value) less than $500
3 months imprisonment
what is the punishment for causing loss (of value) over $500 (not over $1000)
1 year imprisonment
can you use propensity evidence for causing loss by deception?
yes evidence showing a person has a propensity to act in a certain way or have a particular state of mind may be admissible
who can you offer propensity evidence about?
a party may provide propensity evidence about anyone in a civil or criminal trial