Deception

Question 1

Deception

Legislation

Answer 1

S240(2) CA61

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

What you must prove

Answer 2

• There was an intent to deceive
• There was a representation by the defendant
• The representation was false
• The defendant either knew it to be false in a material particular OR was reckless whether it was false in a material particular

Question 3

Intent to Deceive, case law

Answer 3

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 4

Intent

Answer 4

In a criminal law context there are two specific types of intention in an offence. Firstly there must be an intention to commit the act and secondly, an intention to get a specific result.

Question 5

Representation

Definition and examples

Answer 5

A thing that represents another, a statement made by way of allegation or to convey opinion.

Orally (by spoken words)
Example: Verbally claiming to own goods that are in fact subject to a hire purchase agreement.

By conduct
Example: Representing oneself to be a collector for charity by appearing to be carrying an official collection bag.

Documentary
Example: Presenting a false certificate of qualification, or completing a valueless cheque on an account in which there are no funds knowing the cheque will not be honoured.

Question 6

Representations, case law

Answer 6

R v Morley

Representations must relate to a statement of existing fact, rather than a statement of future intention

Question 7

Silence

Of note only

Answer 7

Silence or non-disclosure will not be regarded as a representation, but there are exceptions to this, such as where an incorrect understanding is implied from a course of dealing and the defendant has failed to negate that incorrect understanding.

Question 8

Knowledge

Definition

Answer 8

Knowing means knowing or correctly believing. The defendant may believe something wrongly, but cannot ‘know’ something that is false”.

Question 9

Recklessness, case law

Answer 9

R v Harney

“Recklessness means the conscious and deliberate taking of an unjustified risk. In New Zealand it involves proof that the consequence complained of could well happen, together with an intention to continue the course of conduct regardless of risk.”

Question 10

Fraudulent device, trick, or stratagem

Answer 10

• Device: A ‘plan, scheme or trick’.
• Trick: An action or scheme undertaken to fool, outwit, or deceive.
• Stratagem: A cunning plan or scheme especially for deceiving an enemy, or trickery.

The conduct must be accompanied by an intent to deceive.

Question 11

Material Particular

Of note only

Answer 11

In R v Mallett it was held that “A matter will be a ‘material particular’ if it is something important or something that matters.”

Of note

A minor detail may amount to a “material particular” if it is of consequence to the facts of the case. The question of materiality will be assessed objectively.

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

Knowledge required of Falsity

Answer 12

The representation must be false.

The defendant must know or believe it is false,
Or be reckless whether it is false.

Absolute certainty is not required, wilful blindness will suffice.

Question 13

Knowledge is established by:

Answer 13

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

Question 14

Recklessness - subjective and objective tests

Answer 14

Subjective - defendant consciously and deliberately took a risk

Objective - the risk was unreasonable in the circumstances as they were known by him (a reasonable person wouldn’t have taken the risk)

Question 15

Omission

Answer 15

Inaction eg. Not acting.

It can either be a conscious decision not to do it or not giving thought to it at all

Question 16

Theft v Obtain by deception

Answer 16

Lies with the concept of of possession and title or ownership.
If someone has obtained something by deception, the owner has given them ownership of the thing freely. Title is given although it is voidable.
If someone has stolen something, it has been taken without the owners permission, therefore the theif has possession but no title or ownership.

Question 17

Deception by inference

Answer 17

Deception can arise by inference, if the words or conduct used can naturally and reasonably convey the meaning alleged and are intended by the suspect to do so.