Deception

Question 1

What section of the Crimes Act 1961, do the deception offences come under?

Answer 1

Sections 228 and 240.

Question 2

What are the ingredients of takes/obtains a document?

Answer 2

• With intent to obtain - Any property, service, pecuniary advantage, or valuable consideration - Dishonestly - Without claim of right - Takes or obtains - Any document

Question 3

Define: With Intent to obtain

Answer 3

The defendant must intend to obtain, and he or she must intend to obtain by the deception

Question 4

Define: obtain

Answer 4

Obtain is defined in the Crimes Act as: in relation to any person, means obtain or retain for himself or herself or for any other person

Question 5

Define: Property

Answer 5

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.

Question 6

Define: Service

Answer 6

Service is not defined in the Crimes Act 1961. The case of R v Cara directed that “Service is limited to financial or economic value, and excludes privileges or benefits.”

Question 7

Pecuniary advantage

Answer 7

Monetary advantage

Question 8

Hayes v R (2008) - MUST KNOW (for both pecuniary advantage and valuable consideration)

Answer 8

A pecuniary advantage is “anything that enhances the accused’s financial position. It is that enhancement which constitutes the element of advantage.” 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”.

Question 9

Define: Dishonestly

Answer 9

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. That belief may be either: •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. It is not an issue that the defendant’s belief was reasonable or not, it is only an issue as to whether the belief was held or not. Hayes v R (2008)

Question 10

Define: Without claim of right

Answer 10

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 11

Definition: Takes or obtains

Answer 11

Section 219(4), Crimes Act :

For tangible property, theft is committed by a taking when the offender moves the property or causes it to be moved.

Question 12

Definition: Document

Answer 12

section 217 of the Crimes Act 1961:

document means a document, or part of a document, in any form; and includes, without limitation,—

(a) Any paper or other material used for writing or printing that is marked with matter capable of being read, OR
(b) Any photograph, or any photographic negative, plate, slide, film, or microfilm, or any photostatic negative, OR
(c) Any disc, tape, wire, sound track, card, or other material or device in or on which information, sounds, 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, OR
(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, OR
(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

Question 13

R v Misic (2001) - MUST KNOW

Answer 13

“Essentially a document is a thing which provides evidence or information or serves as a record.”

Question 14

What are the four offences under section 240(1)(a - d)

Answer 14

(a) Obtaining property (etc) by decption (b) Obtaining credit by deception (c) Altering documents capable of deriving pecuniary advantage (d) Causing loss by deception

Question 15

Define: Deception

Answer 15

Deception is defined in the crimes act 240(2) as: 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. Note: The following cards will go into detail about specific terms found within this definition.

Question 16

Define: Deception

Answer 16

Deception is defined in the crimes act 240(2) as: 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. Note: The following cards will go into detail about specific terms found within this definition. It is an important factor to understand as it is integral for any charge under s240.

Question 17

Definition: Representation

Answer 17

This is not defined. Examples have included representations about a past or present fact, about a future event, or about an existing intention, opinion, belief, knowledge or other state of mind. It must be capable of being false so it must contain a proposition of fact

Question 18

Definition: False representation

Answer 18

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. The falsity of the representation must be proved. In Carlos v R (2010) there was more than one false representation alleged. It was directed that each alleged misrepresentation should be included in a separate count.

Question 19

What is required to be proven for ‘deception’ to occur.

Answer 19

• 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.

Question 20

R v Morley (2010) - MUST KNOW In regards to ‘Intention to deceive’

Answer 20

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 21

R v Morley (2010) - MUST KNOW In regards to ‘Intention to deceive’

Answer 21

“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.” Further: No offence is committed unless the false statement is made or used by the defendant for the purpose of deceiving their victim, or in the knowledge that the victim is virtually certain to be deceived. It is insufficient that the deception is done in the mere awareness, without so intending, that the victim may be deceived. That would be a case of recklessness rather than intent, and falls outside the scope of s240(2): Simester and Brookbanks, Principles of Criminal Law, 2007, p717.

Question 22

Definition: Intent

Answer 22

“Intent” means that the act or omission must be done deliberately. The act or omission must be more than involuntary or accidental.

Question 23

Give some example of false representation

Answer 23

ORALLY (by spoken words) Example: Verbally claiming to own goods that are in fact subject to a hire purchase agreement. In the case of R v Caslin (1961) the defendant was held to have obtained by a false pretence because the representation made by her that she was a prostitute, prepared to prostitute her body and that she had a bedroom available for that purpose were undoubtedly false on that particular occasion. BY CONDUCT Example: Representing oneself to be a collector for charity by appearing to be carrying an official collection bag. In R v Barnard (1837) the defendant entered a shop in a university town wearing a cap and gown to convey the notion that he was a member of the university. DOCUMENTARY Example: Presenting a false certificate of qualification, or completing a valueless cheque on an account in which there are no funds knowing the cheque will not be honoured. In the matter of NZ Motor Bodies Ltd v Emslie (1985) a budget forecasting turnover and profit containing gross inaccuracies is prepared for the purpose of a company takeover.

Question 24

Definition: Continuing effect

Answer 24

In many cases a representation by words or conduct may have a continuing effect. For example, entering a restaurant and ordering dinner represents that the diner will follow the normal practice and pay for the meal. If during the course of dinner the diner decides to avoid that payment, the continuing representation will become false, and the obtaining of food will come within s240.

Question 25

Definition: Silence

Answer 25

As a general rule, silence or non-disclosure will not be regarded as a representation, but there are exceptions to this such as where an incorrect understanding is implied from a course of dealing and the defendant has failed to negate that incorrect understanding: R v Waterfall (1969) One controversial exception to the rule on silence is found in “label swapping” cases. In Police v Dronjak (1990), the defendant was shopping in a department store. He was approached by an assistant who, in reply to his query, advised that the cost of a particular car radio was $695.83. He advised the assistant that he would purchase the item when he went through the checkout. By the time the defendant arrived at the checkout the item bore two price tags, one for $695.83 the other for $38.88. The defendant allowed the cashier to charge an incorrect price by not pointing out the higher price tag on the goods. It was argued that this amounted to a representation that the price tag was the correct one. It was commented that by maintaining silence in the face of a mistake known to him and by deliberately refraining from drawing the checkout assistant’s attention to the mistake, Dronjak had obtained title to the radio by a false pretence (deception). Importantly, in Dronjak no evidence was offered that the defendant did not tamper with the price tags but presented the item at the counter with the correct label concealed from the shop assistant’s view. In the case of Rao v Police (1988) the defendant had removed price tags and replaced them with cheaper ones. Here the Court held the representation the appellant made was the representation inherent in his conduct that the price tickets on the articles handed to the checkout operator were the same tickets as those placed on the goods by the store. The appeal against a conviction for false pretences was dismissed by the High Court.

Question 26

Definition: Silence

Answer 26

As a general rule, silence or non-disclosure will not be regarded as a representation, but there are exceptions to this such as where an incorrect understanding is implied from a course of dealing and the defendant has failed to negate that incorrect understanding: R v Waterfall (1969) One controversial exception to the rule on silence is found in “label swapping” cases. In Police v Dronjak (1990), the defendant was shopping in a department store. He was approached by an assistant who, in reply to his query, advised that the cost of a particular car radio was $695.83. He advised the assistant that he would purchase the item when he went through the checkout. By the time the defendant arrived at the checkout the item bore two price tags, one for $695.83 the other for $38.88. The defendant allowed the cashier to charge an incorrect price by not pointing out the higher price tag on the goods. It was argued that this amounted to a representation that the price tag was the correct one. It was commented that by maintaining silence in the face of a mistake known to him and by deliberately refraining from drawing the checkout assistant’s attention to the mistake, Dronjak had obtained title to the radio by a false pretence (deception). Importantly, in Dronjak no evidence was offered that the defendant did not tamper with the price tags but presented the item at the counter with the correct label concealed from the shop assistant’s view. In the case of Rao v Police (1988) the defendant had removed price tags and replaced them with cheaper ones. Here the Court held the representation the appellant made was the representation inherent in his conduct that the price tickets on the articles handed to the checkout operator were the same tickets as those placed on the goods by the store. The appeal against a conviction for false pretences was dismissed by the High Court.

Question 27

Definition: knowledge

Answer 27

The prosecution must prove that the defendant knew that the representation was false in a material particular or was reckless as to its falsity. Absolute certainty is not required Knowing means “knowing or correctly believing”. The qualification that the belief be a correct one, is implicit in the meaning of knowledge. Knowledge can be established by: •an admission •implication from the circumstances surrounding the event •propensity evidence R v Crooks (1981) It was held that the accused may also be liable if their conduct has amounted to “wilful blindness” and thus is equated to knowledge (conduct of the accused amounting to putting their head in the sand).

Question 28

False in a material particular

Answer 28

Material particular is not defined in the Crimes Act and can be given its usual meaning of an important, essential or relevant detail or item. In R v Mallett (1978) it was held that “A matter will be a ‘material particular’ if it is something important or something that matters.” The prosecution must establish either that the defendant knows or believes his representation is false in a material particular, or is reckless as to whether it is false. A minor detail may amount to a “material particular” if it is of consequence to the facts of the case. The question of materiality will be assessed objectively.

Question 29

Describe R v Harney (1987) in regards to recklessness.

Answer 29

“Recklessness means the conscious and deliberate taking of an unjustified risk. In New Zealand it involves proof that the consequence complained of could well happen, together with an intention to continue the course of conduct regardless of the risk.”

Question 30

Discuss the subjective/objective tests required to prove someone acted recklessly.

Answer 30

It must be proved not only that the defendant was aware of the risk and proceeded regardless (a subjective test), but also that it was unreasonable for him to do so (an objective test). •A subjective test is the internal reasons a person acts as he or she does. •An objective test is the test of a reasonable person.

Question 31

What are the four offences under section 240(2)(a - d)

Answer 31

(a) Obtaining property (etc) by decption (b) Obtaining credit by deception (c) Altering documents capable of deriving pecuniary advantage (d) Causing loss by deception

Question 32

Discuss the subjective/objective tests required to prove someone acted recklessly.

Answer 32

It must be proved not only that the defendant was aware of the risk and proceeded regardless (a subjective test), but also that it was unreasonable for him to do so (an objective test). •A subjective test is the internal reasons a person acts as he or she does. •An objective test is the test of a reasonable person.

Question 33

What are the ingredients for 240(2)(a)? - Obtaining property (etc) by deception

Answer 33

• By deception - without claim of right - obtains ownership, or possession of, or control over - any property, or - any privilege, service, pecuniary advantage, benefit or valuable consideration

Question 34

What are the ingredients for 240(2)(a)? - Obtaining property (etc) by deception

Answer 34

• By deception - without claim of right - obtains ownership, or possession of, or control over - any property, or - any privilege, service, pecuniary advantage, benefit or valuable consideration

Question 35

Definition of: “Privilege” or “benefit”

Answer 35

The words “privilege” or “benefit” are not limited to a privilege or benefit of a pecuniary nature. Both of these words mean a ‘special right or advantage’. Examples •Using another person’s gym membership card so that you can use the gym facilities. •Access to medical services. •The withdrawal of an assault charge. •A reduction in sentence for an offence. Where the benefit or privilege does not involve money, there does not need to be financial loss or injury to the person who has been defrauded.

Question 36

Definition: obtains ownership, possession or control

Answer 36

Goods are ‘obtained’ by a defendant if the goods come under their control, even though they may not have physical possession of them. Property may be ‘obtained’ if a deception made to one person means that the property is then actually obtained from another person, provided that the deception operated on the mind of the person giving up the property. Example: Where there is agreement that the sending of some item (eg a cheque by post) shall complete a transaction, the ‘obtaining’ is complete at the time of posting.

Question 37

Distinction between theft and obtaining by deception - in regards to title

Answer 37

An important distinction between theft and obtaining by deception is that in theft the property is obtained without the owner’s permission and title is not passed on.

Question 38

Definition: ownership

Answer 38

Ownership is synonymous with the concept of title (see further for discussion of title on page 39). In certain instances a person parting with goods not only relinquishes possession to the other person, but also passes on a legal right of ownership (ie “title to”) the goods.

Question 39

Definition: ownership

Answer 39

Ownership is synonymous with the concept of title (see further for discussion of title on page 39). In certain instances a person parting with goods not only relinquishes possession to the other person, but also passes on a legal right of ownership (ie “title to”) the goods.

Question 40

R v Cox (1990) - MUST KNOW - in regards to possession

Answer 40

“Possession involves two… elements. The first, often called the physical element, is actual or potential physical custody or control. The second, often described as the mental element… is a combination of knowledge and intention: knowledge in the sense of an awareness by the accused that the substance is in his possession… and an intention to exercise possession.” The physical element requires the physical custody or control over the item in question and can be either “actual” or “potential.” Actual possession arises where the thing in question is in a person’s physical custody or control. Potential possession arises when the person has the potential to have the thing in question in their control. For example, storing the thing in question at an associate’s house or through an agent. The mental element is a combination of both knowledge that the person possesses the item in question, and an intention to possess the item.

Question 41

R v Cox (1990) - MUST KNOW - in regards to possession

Answer 41

“Possession involves two… elements. The first, often called the physical element, is actual or potential physical custody or control. The second, often described as the mental element… is a combination of knowledge and intention: knowledge in the sense of an awareness by the accused that the substance is in his possession… and an intention to exercise possession.” The physical element requires the physical custody or control over the item in question and can be either “actual” or “potential.” Actual possession arises where the thing in question is in a person’s physical custody or control. Potential possession arises when the person has the potential to have the thing in question in their control. For example, storing the thing in question at an associate’s house or through an agent. The mental element is a combination of both knowledge that the person possesses the item in question, and an intention to possess the item.

Question 42

Definition: Special interest

Answer 42

It is sufficient if the person from whom the goods were obtained had some special property or interest in the goods without having actual ownership of them.

Question 43

Definition: Control

Answer 43

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

Question 44

Pecuniary advantage

Answer 44

This basically means ‘economic or monetary advantage’. Examples •Cash from stolen goods. •Clothing or cash obtained by a credit or EFTPOS card. •A discount (by using a student ID card). •Avoiding or deferring payment of a debt.

Question 45

What are the ingredients for 240(2)(a)? - Obtaining property (etc) by deception

Answer 45

• By deception - without claim of right - obtains ownership, or possession of, or control over - any property, or - any privilege, service, pecuniary advantage, benefit or valuable consideration

Question 46

Pecuniary advantage

Answer 46

This basically means ‘economic or monetary advantage’. Examples •Cash from stolen goods. •Clothing or cash obtained by a credit or EFTPOS card. •A discount (by using a student ID card). •Avoiding or deferring payment of a debt.

Question 47

What are the ingredients of s240(2)(b):

Answer 47

• By deception - without claim of right - in incurring any debt or liability - obtains credit

Question 48

Definition: Credit

Answer 48

Refers to the obligation on the debtor to pay or repay, and the time given for them to do so by the creditor. Credit is discussed in detail in this section.

Question 49

What must be proved for a charge under s240(2)(b)

Answer 49

Under s240(1)(b) you must prove the identity of the suspect and that prove they: •by deception and without claim of right •in incurring any debt or liability •obtained credit.

Question 50

Definition: Debt or liability

Answer 50

The debt or liability must be legally enforceable. This means that if the contract is void or illegal there will be no offence: Simester and Brookbanks, Principles of Criminal Law, 2007, p714.

Question 51

Definition: obtains credit

Answer 51

Under s240(1)(b) there must be an obtaining of credit as a result of incurring any debt or liability. That is, there must be a causative link between the debt or liability and the obtaining of credit. Obtaining credit requires a debtor to gain a creditor’s agreement to the deferred payment of a debt or obligation. The credit obtained must be in respect of a monetary obligation.

Question 52

Fisher v Raven (1964) - MUST KNOW

Answer 52

‘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.

Question 53

Discuss: Credit being obtained by a 3rd person

Answer 53

Long-standing authority has held that the credit must be obtained by and given to the defendant personally: Bryant (1899) 63 JP 376; Steel (1910) 5 Cr App R 289. However, under the extended definition of “obtain” in s217 of the Crimes Act 1961 it will be sufficient that the defendant obtained the extension of credit to another person: Adams on Criminal Law, CA217.07. Examples of situations where ‘credit’ may be obtained include: •obtaining money on loan •extending existing overdraft facilities •renting or leasing a dwelling.

Question 54

What are the ingredients of s240(2)(b):

Answer 54

• By deception - without claim of right - in incurring any debt or liability - obtains credit

Question 55

Discuss: Credit being obtained by a 3rd person

Answer 55

Long-standing authority has held that the credit must be obtained by and given to the defendant personally: Bryant (1899) ; Steel (1910). However, under the extended definition of “obtain” in s217 of the Crimes Act 1961 it will be sufficient that the defendant obtained the extension of credit to another person. Examples of situations where ‘credit’ may be obtained include: •obtaining money on loan •extending existing overdraft facilities •renting or leasing a dwelling.

Question 56

Discuss credit in regards to being intangible

Answer 56

Credit is an intangible thing. Credit obtained must be in respect of a monetary obligation. If the defendant obtains a non-monetary benefit, the appropriate charge may be under s240(1)(a), depending on the facts of the case. Examples To enter a restaurant, sit at a table and order a meal without any intention of paying for it later is obtaining credit by deception. If a shopkeeper mistakes the customer for someone else and gives them credit, the customer is guilty of obtaining credit by deception if they are aware of the mistake and accept the credit with no intention of paying later.

Question 57

Discuss the timing in regards to intending to deceive.

Answer 57

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.

Question 58

R v McKay (1961) - MUST KNOW

Answer 58

“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.” In R v McKay, the defendant booked into a motel and offered to pay in advance. He was told to pay in the morning when leaving although the following morning he left without paying. Example In relation to meals at a restaurant. In order to convict the offender you must prove that they had an intent to deceive when they either entered the restaurant or started their meal.

Question 59

Discuss the concept of continuing representations

Answer 59

In many cases a representation, whether by words or conduct, may be of continuing effect. Thus, entry into a restaurant and ordering a meal would usually be a representation that one will follow the normal practice and pay for the meal at the appropriate time. If, during the course of the meal, a diner decides to avoid payment, the continuing representation of an intention to pay will become false and any subsequent obtaining of food will come within s240: Adams on Criminal Law, CA240.15.

Question 60

name two types of lack of payment that are not considered deceit

Answer 60

Delay of payment: •delay or non-payment of the debt, or •an inability to perform a bona fide intention. For example, to incur a debt and then be unable to pay through unforeseen circumstances, loss of money or oversight is not deceit. Payment withheld: Intent to deceive does not exist where payment is withheld because of genuine dissatisfaction with the service. For example, where payment of the cost of a meal is refused because of the quality of the food (made prior to the meal being wholly consumed).

Question 61

What are the ingredients of s240(2)(c)?

Answer 61

• By deception - without claim of right - incites or causes any other person - to deliver, execute, make, accept, endorse, destroy, or alter - any document or thing capable or being used to derive a pecuniary advantage.

Question 62

What are the ingredients of s240(2)(c)? Altering documents capable of deriving pecuniary advantage

Answer 62

• By deception - without claim of right - induces or causes any other person - to deliver, execute, make, accept, endorse, destroy, or alter - any document or thing capable or being used to derive a pecuniary advantage.

Question 63

Definition: Induces

Answer 63

Induce means “To persuade, bring about or give rise to” The scope of the induced conduct is very wide. Another person (who need not be the immediate victim of the deception) must be induced or caused to do any of “deliver over, execute, make, accept, endorse, destroy, or alter” the document or thing.

Question 64

Discuss: Induces

Answer 64

The inducement should be proved whenever possible by direct evidence from the person alleged to have been defrauded. In practice the victim of the deception is usually questioned to elicit answers proving: •that the false representation was believed, and •that it was the consequence of that belief that the victim parted with his or her money. In R v Granger (1981), the defendant sold a second-hand motor vehicle to the informant who alleged that misrepresentations were made as to its year and mileage. On a charge of false pretences (deception), the defendant argued that there was no direct evidence during the hearing to prove that the informant had been ‘induced’ by the representation to part with his money. It was held that in the absence of direct evidence however, a reasonable inference can be drawn in certain circumstances that the owner was induced by the representation to part with his money.

Question 65

R v Laverty (1970) - MUST KNOW

Answer 65

“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.” If the particular false representation is not believed by the person to whom it is made, but he nevertheless still parts with his property as a consequence of it, it cannot be said that the property was obtained by a deception. Example The owner parts with his or her property solely as a means of trapping the person who made the false representation. Similarly, if the person to whom the representation is made believes it to be true, but is not induced by it to part with his property, an attempt may be disclosed but not the offence of obtaining by deception itself.

Question 66

Definition: Deliver over, execute, make, accept, endorse, destroy, or alter

Answer 66

There is a range of activity specifically named within the section to encompass a variety of possible fraudulent processes, specifically the execution, making, accepting, endorsing, destroying, altering or delivery over of any document or thing capable of being used to derive a pecuniary advantage None of the terms are specifically defined in the Crimes Act 1961 and we can rely upon their meaning within everyday or common usage. In the context of the legislation, the following meanings can be attributed; • to deliver over, is to surrender up someone or something • to execute, is to put a course of action into effect • to endorse, is to write or sign on a document • to alter, is to change in character or composition, typically in a comparatively small but significant way • to accept, is to receive something

Question 67

Definition: Thing

Answer 67

‘Thing’ is a broad and encompassing concept. However, it appears that the “thing” must be tangible (Simester and Brookbanks, pg 715).

Question 68

What are the ingredients of s240(2)(d) Causing loss by deception

Answer 68

• By deception - without claim of right - causes loss to any other person

Question 69

Definition: loss

Answer 69

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”, but it is less clear where a loss concerns something that is non-quantifiable. The loss caused by deception must be in the nature of a direct loss. Indirect losses, such as expectation loss (loss of a bargin) and loss of anticipated future profits are not included. The case of Morley v R (2010) concluded that “The loss alleged by the victim must have been induced by, or caused in reliance, upon the deception. But the deception need not be the only operative factor, so long as it played a material part in occasioning the loss.” The Court considered that the loss flowing from the deception should be assessed by the extent to which the complainant’s position before the deception had been diminished or impaired. There is no requirement in s240(1)(d) that the person who suffers the loss be the person who is deceived. Where the “loss” is more in the nature of a benefit than property, it may be preferable to charge under s240(1)(a).

Question 70

Definition: loss

Answer 70

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”, but it is less clear where a loss concerns something that is non-quantifiable. The loss caused by deception must be in the nature of a direct loss. Indirect losses, such as expectation loss (loss of a bargin) and loss of anticipated future profits are not included. The case of Morley v R (2010) concluded that “The loss alleged by the victim must have been induced by, or caused in reliance, upon the deception. But the deception need not be the only operative factor, so long as it played a material part in occasioning the loss.” The Court considered that the loss flowing from the deception should be assessed by the extent to which the complainant’s position before the deception had been diminished or impaired. There is no requirement in s240(1)(d) that the person who suffers the loss be the person who is deceived. Where the “loss” is more in the nature of a benefit than property, it may be preferable to charge under s240(1)(a).

Question 71

What is required to be proved for charge under s240(2)(d)?

Answer 71

In R v Morley (2009) the prosecution: • must prove that the loss was caused by a deception • must prove that it was reasonably foreseeable some more than trivial loss would occur, but • need not prove the loss was intentionally caused. Thus, there must be loss to “any other person”, but there is no requirement that there be any benefit to anyone.

Question 72

What are the punishments for obtain by deception/causing loss by deception?

Answer 72

(a) if the loss caused or the value of what is obtained or sought to be obtained exceeds $1,000 = max 7 years. (b) if the loss caused or the value of what is obtained or sought to be obtained is $500 - $1,000, = max 1 year. (c)if the loss caused or the value of what is obtained or sought to be obtained does not exceed $500, max 3 months.

Question 73

Difference between obtaining by deception and theft?

Answer 73

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. (Note, however, that the title may be a voidable title only.) If someone has gained property by way of theft, they have taken it without the owner’s knowledge or consent and so they have only possession of the property and never title or ownership of it.

Question 74

Note on propensity evidence in deception cases

Answer 74

Propensity evidence, whether on previous or later occasions to the offence charged, is admissible in cases of deception where there is a sufficiently strong connection between the offences. For example, evidence that other cheques drawn by the defendant were dishonoured may be evidence of the circumstances in which the cheque that is the subject matter of the charge was drawn, and therefore directly relevant to the defendant’s state of mind (intent) when he or she issued it. The Court will decide on whether the evidence is propensity evidence or simply regarded as relevant evidence. Persistent dishonesty across the board, embracing a number of offences, would not in itself bring the propensity rule into play. It is more likely to be deployed in cases involving specific offences with a discernable methodology or pattern: Adams on Criminal Law, Evidence of propensity will be subject to the admissibility rules under s7 of the Act. Evidence is relevant, under s7(3), if it has a “tendency to prove or disprove anything that is of consequence to the determination of the proceeding”. R v Sharma (2009) concluded that “The ultimate issue is the degree to which the probative value of the evidence outweighs its prejudicial effect.”

Question 75

Note on propensity evidence in deception cases

Answer 75

Propensity evidence, whether on previous or later occasions to the offence charged, is admissible in cases of deception where there is a sufficiently strong connection between the offences. For example, evidence that other cheques drawn by the defendant were dishonoured may be evidence of the circumstances in which the cheque that is the subject matter of the charge was drawn, and therefore directly relevant to the defendant’s state of mind (intent) when he or she issued it. The Court will decide on whether the evidence is propensity evidence or simply regarded as relevant evidence. Persistent dishonesty across the board, embracing a number of offences, would not in itself bring the propensity rule into play. It is more likely to be deployed in cases involving specific offences with a discernable methodology or pattern: Adams on Criminal Law, Evidence of propensity will be subject to the admissibility rules under s7 of the Act. Evidence is relevant, under s7(3), if it has a “tendency to prove or disprove anything that is of consequence to the determination of the proceeding”. R v Sharma (2009) concluded that “The ultimate issue is the degree to which the probative value of the evidence outweighs its prejudicial effect.”