Deception

Question 1

Deception

Define - Deception (s240(2) CA61)

Answer 1

s240(2) CA61
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.

Question 2

Deception

Discuss intention to deceive (R v Morley)

Answer 2

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.

Question 3

Deception

Discuss - Credit (Fisher v Raven)

Answer 3

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:
(Obligation to pay)

Question 4

Deception

Discuss - Timing of intention to deceive (R v McKay)

Answer 4

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.
(Timing of intention to deceive)

Question 5

Deception

Discuss - False representation

Answer 5

False Representation
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.

Question 6

Deception

Discuss - Inducement

Answer 6

nduce 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:
Simmester and Brookbanks, Principles of Criminal Law

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.

Question 7

Deception

Define - Obtain

Answer 7

Obtains - Section 217, Crimes Act 1961

Obtain, in relation to any person, means obtain or retain for himself or herself or for any other person

Question 8

Deception - Obtains ownership, possession or control
Discuss:
- Possession
- Control

Answer 8

Possession
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.

One person often holds possession and ownership at the same time. However you can possess something without having title to it (eg driving someone else’s car).
Frequently, in practice, both ‘title to’ or ‘property in’ goods (ownership) and ‘possession’ are passed to the offender. In such cases the person parting with the goods intends to give the other person both possession and ownership.

An example would be the purchase of goods using a valueless cheque. The offender receives both possession of the goods and title to them.

Control
To “control” something means to exercise authoritative or dominating influence or command over it.

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.

It is insufficient that the dishonestly obtained property was found at the premises of which the defendant had control. It must be proved that the defendant did in fact exercise some control over the particular property:
(Adams on Criminal Law)

Question 9

Deception

Define - Property (s2 CA61)

Answer 9

Property s2 CA61
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 10

Deception
Discuss:
- Privilege
- Pecuniary Advantage
- Valuable consideration
- Credit

Answer 10

• Privilege
  Special right or advantage
• Pecuniary Advantage
  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.”
• Valuable consideration
  Hayes v R
  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”.
• Credit
  Refers to the obligation on the debtor to pay or repay, and the time given for them to do so by the creditor.

Question 11

Deception

Define - Material Particular

Answer 11

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.

Question 12

Deception

Define - Document (s217 CA61)

Answer 12

s217 CA61
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

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

Question 13

Deception

Discuss - Cause loss

Answer 13

The defendant, or an act of the defendant, must be the substantial and operative cause of the delivery, execution etc, of any document capable of deriving pecuniary advantage. The accused must cause the loss.

The term “loss” is not defined by statute, but in most cases will involve financial detriment to the victim

Question 14

Deception

Define - Dishonestly (s217 CA61)

Answer 14

Dishonestly - s217 CA61
in relation to an act or omission, 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

Hayes v R
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:

Question 15

Deception

Define - Takes (s219(4) CA61)

Answer 15

Takes - Section 219(4), Crimes Act 1961

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

Question 16

Deception

Discuss - Uses and attempts to use

Answer 16

The prosecution must prove that the offender used (or attempted to use) the document with the intent to obtain the property, service, valuable consideration, pecuniary advantage or valuable consideration.

Hayes v R
“An unsuccessful use of a document is as much use as a successful one. Because the use does not have to be successful it may be difficult to draw a clear line between use and attempted use.”

Question 17

Deception

Discuss - Title

Answer 17

‘a right or claim to the ownership of property’.
In other words, “title” simply means a legal right to the property.

A person cannot give better title to property than they own. Where a seller, who has no rights of ownership to the goods and who 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.

A title obtained by deception, fraud, duress or misrepresentation is called a ‘voidable title’. This means that the title can be avoided by the seller.

Thus, if an innocent purchaser buys goods obtained by deception, before title has been avoided, then he or she is entitled to good title.

Until the title is avoided, the defrauder has a voidable title, and can confer good title on anyone who acquires the goods from him or her in good faith and for value.