Deception Flashcards
intent
in a criminal law context there are two specific types of intent, firstly there must be an intention to commit the act and secondly an intention to get a specific result
Obtain
S217 CA 1961
Obtain in relation to any persons means obtain or retain for himself or herself
Property
S2 CA 1961
Property includes any rel or personal property or any estate, or any interest in any real or personal property, money, electricty and any debt, and any thing in action, and any other right or interest
Service
Not defined in statue
Case law relating to valuable consideration
Hayes v R
A vaulable consideration is anything capable of being a valuable consideration, whether of a monetary kind or of any other kind, in short money or moneys worth
Dishonestly
S217 CA 1961
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.
Claim of right
S2 CA 1961
In relation to any act, means a belief at the time of the act in a proprrietary or possessory right in property in relation to which the offence is alleged to have been committed, although the 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.
Takes
S219(4) CA 1961
For tangible property, theft i committed by a taking when the offender moves the property or causes it to be moved
Document
Includes part of a document in any form and includes
- paper/material containing any thing that can be read
- photos, negatives and related items
- discs, tapes, cards or other devices/equipment on which information is stored and can be reproduced
Case law related to document
R v Misic
Essentially a document is a thing which provides evidence or information or serves as a record
Uses or attempts to use
The prosecution must prove that the offender used the document or attempted to use it with the intent to obtain any property, service, pecuniary advantage or valuable consideration
Case law relating to using a document
Hayes v R
An unsuccessful use of a document is as good as a successful one and should not been seen as an attempted use. The concept of attempts relates to the use of the document not the obtaining of a pecuniary advantage, thus it may be difficult to draw a clear line between use and attempts to use.
Deception
S240(2) CA 1961
(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 it to be false in a material particular or
(ii) is reckless as to whether it is false in a material particular
(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
False representation
The representation must be false and the defendant must know or believe that it is false or be reckless whether it is false. Absolute certainty in not required and willful blindness to its falsity will suffice.
Intent to deceive
the offender must know representation is false and intent the other person to act upon it as genuine
Case law relating to intent to deceive
R v Morley
the intention to deceive requires that the deception be practiced in order to deceive the affected party. Purposeful intent must exist at the time of the deception
Ownership
is synonymous with the concept of title
case law relating to ownership/possession
R v Cox
possession involves two elements, the first being the physical element which is the actual or potential custody or control, and the second being the mental element which is the knowledge in the sense of awareness of the accused that the substance is in their possession and the intention to exercise possession of it.
Possession
May be actual or potential
Actual possession
arises where the thing in question is in the persons physical custody or control
potential possession
arises where the person has the potential to have the thing in question in their control
privilege or benefit
special right or advantage
Debt
money owing from one person to another
liability
legally enforceable financial obligation to pay
credit
refers to the obligation of the debtor to pay or repay in the time given to do so by the creditor. The obligation to pay must be legally enforced
Loss
is likely to include financial and property losses any may also encompass emotional, cultural and intellectual losses
what is a material particular?
something important or something that matters
