Deception Flashcards
Ingredients to Section 228 (1)(a) Crimes Act 1961 - Dishonestly Takes a document
Dishonestly
Without claim of right
Takes or obtains
Document
Dishonestly
Done or omitted without belief that there was expressed or implied consent but a person entitled to consent, or a person entitled to authorise
Without claim of right
A belief in a proprietary or possessory right in the property in relation to which the offence is alleged to have been committed.
Takes or Obtains
Taking - when the offender moves the property or causes it to be moved - ownership, possession or control maybe directly or indirectly obtained.
Obtains- obtain or retains for himself or for any other person
Document
A document is a thing which provides evidence or info or serves as a record eg photo, disc, tape, paper
Document case law
R v Misic - Essentially a document is a thing which provides evidence or info or serves as a record
Ingredients to Section 228 (1)(b) Crimes Act 1961 - Uses/attempts to use a document
Intent to obtain Any property, service, pecuniary advantage, or valuable consideration Dishonestly Without claim of right Uses or attempts to use Document
Intent to obtain
The Defendant must intend to obtain, and do so by deception
Any property, service, pecuniary advantage, or valuable consideration
Property - includes real and person property or interest in real property e.g money, electricity and any debt.
Service - Limited to financial or economic value & excludes privileges or benefits
Pecuniary advantage - Anything that enhances the accused financial position.
Valuable consideration - Anything capable of being valuable consideration whether of monetary kind e.g money or moneys worth
E.g using someone else’s gym membership
Uses or attempts to use
Must prove the offender used or attempted to use the intent to obtain the property, service, valuable consideration, pecuniary advantage
Attempts
May constitute an attempt if immediately or proximately connected with the intended offences whether or not there was any act unequivocally shoeing the intent to commit that offence.
Ingredients to Crimes Act 1961, Section 240 (2) - Deception
A false representation whether oral, conduct, documentary AND
(a) (i) knows 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 in circumstances where there is duty to disclose it OR
(c) A fraudulent device, trick used with intent to deceive.
What do you have to prove with deception?
-There was an intent to deceive
- There was a representation by the defendant
That representation was false in a material particular OR was reckless whether it was false in a material particular
Ingredients to Crimes Act 1961, Section 240 (1)(a) - Deception or causing loss of deception
Obtains
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,
Ownership, OR possession of OR control over
Ownership, possession of or control over maybe directly or indirectly obtained
Goods are obtained by a defendant if the goods come under their control even though they not have physical possession of them
Possession
Possession involves two elements
1st - the physical element is actual or potential custody or control
2nd - The mental element - combination of knowledge and intention
Ingredients to Crimes Act 1961, Section 240 (1)(b) - Deception or causing loss of deception
Deception Without claim of right Debt or liability Obtains Credit
Debt or liability
Debt - money owing from one person to another
Liability - legally enforceable financial obligation to pay, such as cost of a meal
Credit
Obligation on the debtor to pay or repay, and the time given to them to do so by the creditor
What you must prove - Section 240 Crimes Act 1961 (1)(b) -
The identity of the suspect and they they:
- By deception without claim of right
- In incurring and debt or liability
- Obtained credit
Section Act 1961, 240 Crimes (1)(c) - Deception or causing loss of deception
(1) Everyone is guilty of obtaining by deception or causing lose by deception who, by any deception and without claim of right
(c) induces or causes any person to deliver over, execute, make, accept, endorse, destroy, or alter any document or thing capable of being used to derive pecuniary advantage
Induce
To persuade bring about or give rise
Ingredients of - Crimes Act 1961, Section 240(1)(c) - Deception or causing loss of deception
Induce Causes Delivers over, execute, make,accept, endorse, destroy, or alter Document Thing
Causes
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 Defendant must cause loss
Delivers over, execute, make,accept, endorse, destroy, or alter
Delivers over - Surrender up someone or something
Execute - - To put a course of action into affect
Make-
Accept - To receive something
Endorse - To write or sign document
Destroy -
Alter - To change in character or composition, typically in a comparatively small but significant way
Thing
The thing must be capable of being used to derive a pecuniary advantage
Ingredients of - Crimes Act 1961, Section 240(1)(d) - Deception or causing loss of deception
Deception Without claim of right Cause Loss To any other person
Deception
A false representation whether oral, conduct, documentary AND
(a) (i) knows 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 in circumstances where there is duty to disclose it OR
(c) A fraudulent device, trick used with intent to deceive.
In R v Morley the court said the prosecution must prove what?
- The loss was caused by deception
- it was reasonably foreseeable some more than trivial loss would occur, BUT
- need not to prove the loss was intentionally caused.
THERE MUST BE A LOSS TO ANY PERSON
Propensity
An inclination or natural tendency to behave in a particular way.
Difference between deception and theft?
Deception - the person with special interest has freely given the offender possession
theft - taken the property without the owners knowledge or consent
Section 246 (4) Crimes Act 1961 - Receiving after restoration to owner
If
(a) any property stolen or obtained by any other imprisonable offence has been returned to the owner OR
(b) legal title to any such property has been acquired by an person - a subsequent receiving of it is not an offence, even though the receiver may know that the property had previously been stolen or obtained by any other imprisonable offence
Case law - Deception - R V MISIC
Document = a thing which provides • evidence, • information, • serves as a record (MISIC – MISCELLANEOUS - remember the “miscellaneous” file in our computers, with all the miscellaneous documents in it… )
Case law - Deception - HAYES V R x 3
- An unsuccessful use of a document is as much an attempt (use) as a successful one.
- Pecuniary advantage = anything that enhances the accused’s financial position.
- Valuable consideration = anything whether of a monetary kind or other.
In short, money or money’s worth.
Case law - Deception - R v MORLEY
Loss = extent to which the victim’s position prior has been diminished or impaired.
(MORLEY – MORE – MORE MONEY – less money – the victim has suffered loss of money from the arson of their vehicle.)
