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
HAYES v R - Valuable consideration
A valuable consideration is anything capable of being valuable consideration, whether of a monetary kind or of any other kind, in short money or moneys worth
R v HARNEY
Recklessness means the conscious and deliberate taking of an unjustified risk. In NZ it involves proof that the consequence complained of could well happen, together with an intention to continue the course of conduct regardless of the risk.
Material particular
Material particular is note defined in the CA61, and can be given its normal meaning of an important, essential or relevant detail or item.
R v Mallet “A matter will be a material particular if it is something important or something that matters.
Document - sec 2 CA61
Document, includes part of a document in any form and includes:
- any paper or material on which anything can be written or read
- photos, negatives and related items
- discs, tapes, cards and other devices on which information is stored and can be reproduced
Dishonestly - sec 217 CA61
Dishonestly, in relation to an act or omission, means done or omitted without a belief that there was express or implied consent to, or authority for the act or omission from a person entitled to give such consent or authority
Takes - sec 219(4) CA61
For tangible property, theft is committed by a taking, when the offender moves the property or causes it to be moved
Attempts sec 72(1) CA61
Everyone who, having an intent to commit and offence, does or omits and act for the purpose of accomplishing his object is guilty of an attempt to commit the offence intended, whether in the circumstances it was possible to commit the offence or not.
Concept of Title / Voidable title
Title: “A right or claim to the ownership of property”
VOIDABLE TITLE
If an item is obtained by deception, the deceiver gains possession and title of that property.
If the deceiver on sells the property before title is voided to a third party, the third party gets the title and to keep the property.
If the original owner of the property voids title before the deceiver sells the property to a third party, title goes back to the original owner.
Title may be voided by:
- putting it in the newspaper
- taking all reasonable steps to bring it to the deceivers notice
- advising the police the deception has taken place
