Deception - Case Law & Definitions Flashcards
Dishonestly definition
Section 217 Crimes Act 1961
An act or an omission done without a belief there was consent or authority from a person entitled to give such consent or authority.
Claim of right definition
Section 2 Crimes Act 1961
Means a belief, at the time of the act, there is a proprietary or possessory right in property in relation to which the offence is alleged to have been committed, although belief may be based on ignorance or mistake.
Taking definition
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.
Obtains definition
Section 217 Crimes Act 1961
Means to obtain or retain for him/herself or for any other person.
Uses/Attempts to Use
Use can be a single time thing or continuing use of a document.
Hayes v R
Use of a document.
An unsuccessful use of a document is as much use as a successful one.
R v Misic
Relates to a document.
A document is a thing which provides evidence, information or serves as a record.
Document definition
Section 217 Crimes Act 1961
Means a document or part of, in any form, includes but not limited to:
(a) any paper or other material for writing or printing that is marked with matter capable of being read; or
(b) any photograph, negative, print, slide, or
(c) any disc, tape, wire, sound track, card or other material in which information, sounds, or other data can be recorded or stored on, or
(d) any material by means of which information is supplied to any device used for recording, storing or processing information, or
(e) any material derived from information recorded, stored or processed by any device used for recording, storing or processing information.
Property definition
Section 2 Crimes Act 1961
Includes real and personal property, any estate or interest in any real or personal property (money or electricity), and any debt, any thing in action and any other right and interest.
R v Cara
Relates to Service definition
Service is limited to financial or economic value
Hayes v R
Pecuniary advantage
Anything that enhances the accused’s financial position.
Hayes v R
Valuable consideration.
Anything capable of being valuable consideration whether of a monetary kind or any other kind. In short, money or money’s worth.
Deception definition
Section 240(2) Crimes Act 1961
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 material particular, or
(ii) is reckless as to whether it is false in 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.
(c) a fraudulent device, trick or strategem used with intent to deceive any person.
R v Morley
An intention to deceive requires that the deception is practiced so as to deceive the other party. Intent is necessary and must exist at the time of the deception.
Morley v R
The loss alleged by the victim must have been induced by the deception. It need not be the only operative factor but must have played a material particular in occasioning the loss.
R v Love
A deliberate failure to disclose some material matter by a person who has a duty to disclose it will come within a definition of deception
R v Cox
Relates to possession.
It involves two elements, the physical and the mental. Physical is actual custody or control of and mental is knowledge and intention.
Concept of Title
Obtaining goods by deception, obtains both possession and title. Meaning handed over willing by complainant who has been deceived.
Different to theft in that goods are taken without the owners consent.
- a thief never gets title.
- someone who obtains items by deception does however there are limitations.
Voidable Title
A title obtained by deception is called “voidable title”.
This can be avoided by the seller. I.e. once deception is realised, contact offender and police and title is avoided. If item is then on sold to a good faith buyer, item is returned to original complainant.
HOWEVER;
If title is not avoided by original seller and offender on sells the item to a genuine buyer, then good title is transferred to the new buyer and title remains with that person.
