Deception Flashcards
What are the 2 main points held in law in relation to R v Harney
A foresight of the dangerous consequences together with intent to continue the course regardless of the risk
When is forgery complete?
Forgery is complete as soon as the document is made with the intent described in subsection (1) of section 256 or with the knowledge and intent described in subsection (2).
What are the ingredients for forgery?
Everyone is liable to a term no exceeding 10 years who makes a false document with the intention of using it to obtain any property, privilege, service, pecuniary advantage, benefit, or valuable consideration.
What is the definition of deception in 240(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 a 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 the 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.
2 questions that must be asked if someone reports a stolen credit card or cheque?
Find out the identity used by the offender
Obtain descriptions of the offender, the property obtained and the vehicle used.
In 240(2) besides the false representation aspect of deception what else is important to prove deception?
There was an intent to deceive and…
That the defendant either knew it to be false in a material particular OR
Was reckless as to whether it was false in a material particular
Ingredients of 228 taking/using a document?
Every one is liable for a term of imprisonment not exceeding 7 years who, with intent to obtain any property, service, pecuniary advantage, or valuable consideration, -
(a) dishonestly and without claim of right, takes or obtains any document; or
(b) dishonestly and without claim of right, uses or attempts to use a document.
R V Morely
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.
Difference between theft and obtaining be deception
Lies with the concepts of possession and title or ownership.
If obtained by deception - title and ownership (by deception)
If obtained by theft - possession but not title or ownership
So, an important distinction between theft and obtaining by deception is that in theft the property is obtained without the owners permission and title is not passed
Bonafide intention.
Delay or non payment of debt
Intent to deceive is not disclosed merely because there is:
- delay or non-payment of the debt, or
- an inability to perform a bona fide intention
Intent to deceive does not exist where payment is withheld because of genuine dissatisfaction with the service, eg refusing to pay for rubbish meal (prior to meal being wholly eaten)
What is credit.
Money owing with a period of time to pay
A senior executive of a company acting on behalf of the company causes loss to other company’s who is held criminally liable.
A company is criminally liable. The actions of the executive are said to be the actions and state of mind of the company. The executive is also personally liable for their actions. The company is the principal offender and the executive is held liable as a party.
Criminal actions of junior management, or employees such as accountants, are not imputed to the company.
Dishonest access of a computer what is required to prove this. 249(2)
Must prove that the offender
(a) obtained any property, privilege, service, pecuniary advantage, benefit, or valuable consideration; or
(b) causes loss to any other person
When is title obtained.
Title passes when it was indented to pass by the parties.
When a defendant obtains goods by deception he obtains title and possession, however there are limitations on the title received by the offender.
Title will pass because goods are generally handed over with consent of the complainant when goods obtained by deception. Because goods are handed over with consent, law recognises owners wanting offender to have the goods and as a result title of the goods
What must exist in relation to Debt and Liability in Deception.
Definitions
The debt or liability must be legally enforceable.
Debt = money owing from one to another Liability = legally enforceable financial obligation to pay - e.g. the cost of a meal
What must be proved in relation to possession.
-
Obtain - credit 3rd person
Long standing authority held that Credit must be obtained by and given to the defendant personally. However in extended definition of Obtain, it sufficient that the defendant obtained the extension of credit to another person. Examples where credit may be obtained: Obtaining money on loan Extending existing overdraft facilities Renting or leasing a dwelling
Claim of right Sec 2 CA 61
In relation to any act, means a belief at the time of the act in a proprietary and 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 any matter of law other than the enactment against which the offence is alleged to have been committed.
Sec 2 CA 61
Property Sec 2 CA 61
Property includes real and personal property and any estate or interest in any real or personal property, money, electricity and any debt, and anything in action and any other right or interest
Sec 2 CA 61
Fisher V Raven - Credit
Credit
Refers to the obligation on the debtor to pay or repay in the time given to do so by the creditor. The obligation to pay must be legally enforceable.
False representation
False 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 the falsity of the statement will suffice
R v Misic.
Essentially a document is a thing which provides evidence or information or serves as a record.
How can title be voided.
Take all possible steps to communicate with the deceiver, eg, write a letter, text, phone call, notice in newspaper
Make a complaint to Police
What is a 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 for moneys worth.
Hayes v R
eg:
Monetary payment in return for goods or services
Goods given in return for services provided
Issuing a false invoice to receive payment for goods never supplied