Deception - case law / definitions Flashcards
HAYES v R (pecuniary advantage)
A pecuniary advantage is anything which enhances the accusers financial position. It is that enhancement which constitutes the element of advantage
HAYES v R (belief / reasonable)
The question is whether the belief is actually held, not whether the belief is reasonable. Although reasonableness may be relevant as evidence on the issue of whether the belief was actually held
HAYES v R (unsuccessful use/attempt)
An unsuccessful use of a document is as much of a use of a successful one. An unsuccessful use must not be equated conceptually with an attempted one. The concept of attempt relates to use and not to the ultimate obtaining of pecuniary advantage which is not a necessary ingredient of the offence. Because the use does not have to be successful it may be difficult to draw a clear line between use and attempted use
R v MORELY (deceive)
An intention to deceive must be practised in order to deceive the effected party. Purposeful intent is necessary and must exist at the time of the deception.
R v MORELY ( false representations)
Representations must relate to a statement of existing fact, rather than a statement of future intention.
R v MORELY (Loss)
The loss alleged by the victim must have been inducted by, or caused in reliance, upon the deception. But the deception need not be the only operative factor, so long as it played a material part in occasioning the loss
FISHER v RAVEN
“Credit” refers to the obligation on the debtor to pay or repay in the time given for them to do so by the creditor. Credit does not extend to the obligation to supply goods or services
R v McKAY
On appeal it was held that the credit had been obtained on booking in, but at that time the accused did not possess and intent to deceive.
R v MISIC
Essentially a document is a thing which provides information or serves as a record
R v LAVERTY
It is necessary for the prosecution to prove that the person parting with the property was induced to do so by the false representations made.
Intent to deceive
gaining credit is not of itself unlawful unless it is accompanied by an intent to deceive.
Claim of Right - sec 2 CA61
Claim of right: in relation to any act, means a belief at the time of the act in a proprietary or possessory right in the 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 other matter of law other than the enactment against which the offence is alleged to have been committed
Obtains - sec 217 CA61
Obtains, in relation to any person, means to obtain or retain for himself or herself or for any other person.
R v COX (possession)
Possession involves two elements. The first, often called the physical element, is actual or potential physical custody or control. The second, often described as the mental element, is a combination of knowledge and intent; knowledge in a sense of awareness by the accused that the substance is in his possession, and an intention to exercise possession.
Possession - Actual, Potential, Mental
The physical element of possession has two elements, actual or potential.
ACTUAL possession arises when the thing in question is in a persons custody or control.
POTENTIAL possession arises when the person has the potential to have the thing in question in their custody or control. For example, storing the thing in question at an associates house or through and agent.
The MENTAL element of a combination of knowledge that the thing is in his possession, and an intention to exercise possession
