Deception

Question 1

Obtain - def

Answer 1

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 2

Property - def

Answer 2

Section 2, Crimes Act 1961

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 3

Valuable consideration

Answer 3

A pecuniary advantage can amount to a favourable consideration when it involves a monetary advantage; however, the scope of a valuable consideration is wider than a pecuniary advantage.

For example:
• 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.

Question 4

Dishonestly - def

Answer 4

Section 217, Crimes Act 1961

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.

Question 5

Claim of Right

Answer 5

Section 2, Crimes Act 1961

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 6

Taking (theft) - def

Answer 6

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 7

Document - def

Answer 7

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 8

Deception - def

Answer 8

Section 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 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 9

Deception - required to prove

Answer 9

• 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 10

Knowledge - established by…

Answer 10

• an admission
• implication from the circumstances surrounding the event
• propensity evidence

Question 11

Subjective/Objective test

Answer 11

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 12

Device

Answer 12

A ‘plan, scheme or trick’.

Question 13

Trick

Answer 13

An action or scheme undertaken to fool, outwit, or deceive.

Question 14

Stratagem

Answer 14

A cunning plan or scheme especially for deceiving an enemy, or trickery.

Question 15

Constructive possession

Answer 15

Constructive possession arises when something is not in a person’s physical custody, but they have ready access to it or can exercise control over it.

Question 16

Control

Answer 16

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

Question 17

Pecuniary advantage

Answer 17

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 18

Debt

Answer 18

means money owing from one person to another

Question 19

Liability

Answer 19

Means a legally enforceable financial obligation to pay, such as the cost of a meal.

Question 20

Obtaining Credit by Deception

- what must be proved

Answer 20

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

Question 21

Examples of situations where ‘credit’ may be obtained include:

Answer 21

• obtaining money on loan
• extending existing overdraft facilities
• renting or leasing a dwelling.

Question 22

Induce - def

Answer 22

“To persuade, bring about or give rise to”

- Concise Oxford Dictionary

Question 23

Proof of the inducement

Answer 23

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 24

to deliver over

Answer 24

is to surrender up someone or something

Question 25

to execute

Answer 25

is to put a course of action into effect

Question 26

to endorse

Answer 26

is to write or sign on a document

Question 27

to alter

Answer 27

is to change in character or composition, typically in a comparatively small but significant way

Question 28

to accept

Answer 28

is to receive something

Question 29

Causing loss by deception

- what must be proved

Answer 29

• 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.

Question 30

Punishment of obtaining by deception or causing loss by deception

Answer 30

Sec 241
a- exceeds $1000 = 7 years
b- $500-$1000 = 1 year
c- not exceed $500 = 3 months

Question 31

Voidable title

Answer 31

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.

Question 32

To avoid the title

- must…

Answer 32

• communicate with B
• take all other possible steps to bring it to B’s notice, eg by writing a letter
• advise the police that the vehicle was obtained by deception

Question 33

Examples of Forgery

Answer 33

• writing an examination paper in the name of another person who is required to sit the exam
• pre-dating a deed to give it priority over another
• forging letters of recommendation for inclusion in a CV that are necessary to obtain a position
• falsely completing a statement of service on a witness summons.

Question 34

To prove that the document is a forgery, you must prove that::

Answer 34

• the document was false
• the ‘user’ knew that the document had been ‘made’ with the knowledge and intent required under section 256 of the Crimes Act 1961.