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

Answer 3

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 4

3 ways of making a representation and examples

Answer 4

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 5

Silence

Of note only

Answer 5

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 6

Knowledge

Definition

Answer 6

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

Question 7

Fraudulent device, trick, or stratagem

Answer 7

• 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 8

Material Particular

Of note only

Answer 8

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

The prosecution must establish either that the defendant knows or believes his representation is false in a material particular, or is reckless as to whether it is false.

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.