Deception Flashcards
What are the ingredients for Deception?
Deception Sect 240(1(a) 7yrs/1year/3mths 1. By any deception 2. Any without claim of right 3. Obtains possession or control over 4. Any property OR Privilege OR Service OR Pecuniary Advantage OR Benefit OR Valuable consideration ------------------------------ Section 240(1)(b) 1. By any deception 2. And without claim of right 3. In incurring any debt OR Liability 4. Obtains Credit ----------------------------- Section 240(c) 1. By any deception 2. And without claim of right 3. induces or causes any other person to 4. deliver over, execute, make, accept, endorse, destroy, or alter 5. Any document or thing capable of being used to derive a pecuniary advantage --------------------------------- Section 240(d) 1. By any deception 2. And without claim of right 3. causes loss 4. to any other person
State the definition of ‘deception’ as set out in Section 240(2).
Section 240(2), Crimes Act 1961
(2) In this section, 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.
Definition of False Representation/Inducement.
Under the current law, the representation must be false and the defendant must know or believe that it is false in a material particular, or be reckless whether it is false. Absolute certainty is not required and wilful blindness as to falsity of the statement will suffice.
Representations can be made in 3 ways, or a combination of 3 ways. What are they? (How do you prove a false representation?)
To prove a false representation:
• 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
What are the ingredients for Section 228 - Takes/Uses a Document
Taking/Obtaining a Document Sect228(a) 7yrs
- With intent
- To obtain any property OR Service OR Pecuniary Advantage OR Value Consideration
- Dishonestly
- And without claim of right
- ## Takes OR Obtains a documentUses/Attempts to use a Doc
Sect 228(b) - With intent to obtain any property OR Service OR Pecuniary Advantage OR Valuable Consideration
- Dishonestly
- And without claim of right
- Uses OR attempts to use any document
Definition
- Intent to Deceive
- Claim of Right
- Obtains
INTENT TO DECEIVE
Offender must know representation is false and intend other person to act upon it as genuine.
Purposeful intent is necessary and must exist at the time of the deception.
*********
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.
*********
OBTAINS
Obtain, in relation to any person, means obtain or retain for himself or herself or for any other person
Definition
- Possession/Control
- Property
POSSESSION/CONTROL
Ownership, possession or control may be directly or indirectly obtained.
*********
PROPERTY
Property includes real and personal property, and any estate or interest in any real or personal property, money, electricity, and any debt, and any thing in action, and any other right or interest.
Definition
Privilege Pecuniary Advantage Valuable Consideration Value Credit
PRIVILEGE special right or advantage’. ************************************ PECUNIARY ADVANTAGE Economic or monetary advantage ************************************ VALUABLE CONSIDERATION A valuable consideration is “anything capable of being valuable consideration, whether of a monetary kind or of any other kind; in short, money or money’s worth”. ************************************ VALUE Value must be established to determine max penalty. ************************************ CREDIT Refers to the obligation on the debtor to pay or repay, and the time given for them to do so by the creditor.
Definition
Recklessness
Material Particular
Document
RECKLESSNESS
Acting “recklessly” involves consciously and deliberately taking an unjustifiable risk.
********
MATERIAL PARTICULAR
Essential or relevant detail or item.
A matter will be a ‘material particular’ if it is something important or something that matters.
********
DOCUMENT
“Essentially a document is a thing which provides evidence or information or serves as a record..”
document means a document, or part of a document, in any form; and includes:
Paper/material containing anything that can be read/photos/negatives/discs/tapes
Definition
Cause Loss
Dishonesty
Takes
CAUSES LOSS
The term “loss” is not defined by statute, but in most cases will involve financial detriment to the victim
Not all forms of loss will come within the section. Property or valuable things will be the subject matter of “loss”
The loss caused by deception must be in the nature of a direct loss.
Indirect losses, such as expectation loss (loss of a bargain) and loss of anticipated future profits are not included.
********
DISHONESTY - Section 217
Dishonestly, in relation to an act or omission, means done or omitted without a belief that there was expressed or implied consent to, or authority for, the act or omission from a person entitled to give such consent or authority.
********
TAKES - Section 219(4)
For tangible property, theft is committed by a taking when the offender moves the property or causes it to be moved.
Definition
Uses and Attempts
Concept of Title
USES AND ATTEMPTS
“Use” can include a single action, such as the handing over of a document to its intended recipient, or the continuing use of a document:
********
ATTEMPTS - Sect 72
Every one 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 intended, whether in the circumstances it was possible to commit the offence or not.
CONCEPT OF TITLE
Title is ‘a right or claim to the ownership of property’
Title” simply means a legal right to the property.
Explain Voidable Title
Where title is obtained by deception, fraud, duress or misrepresentation it will be “voidable title”. If an innocent purchaser buys goods obtained by a deception, before title has been avoided, then he or she is entitled to a good title.
How the owner ‘Void the title’?
The original person deceived can, however, void the title while still in the hands of the deceiver by:
- advising the deceiver, by letter or in person, that he or she is aware of the deception.
- If the deceiver cannot be contacted, a public notice in the newspaper is sufficient
- Complaining to the police that the property was obtained by deception.
Case Law
R v Hayes
R v Morley
HAYES v R
A pecuniary advantage is “anything that enhances the accused’s financial position. It is that enhancement which constitutes the element of advantage.”
********
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.
Case Law
Fisher v Raven
R v McKay - Intent
FISHER v RAVEN
‘Credit’ refers to the obligation on the debtor to pay or repay, and the time given for them to do so by the creditor. Credit does not extend to an obligation to supply services or goods:
*************
The intention to deceive is essential and must exist at the time when the deception is perpetrated. So when the credit is obtained, a later decision not to repay is insufficient.
R v McKAY
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 deceive.
