Deception CIB 008 Part 1

Question 1

Section 228 (1)(a) CA 1961

Answer 1

(1) 7 years who, with intent to obtain any property, service, pecuniary advantage, or valuable consideration,
(a) dishonestly and without claim of right, takes or obtains any document;

Question 2

Section 228 (1)(b) CA 1961

Answer 2

(1) 7 years who, with intent to obtain any property, service, pecuniary advantage, or valuable consideration,
(b) dishonestly and without claim of right, uses or attempts to use any document.

Question 3

Section 240 (1)(a) CA 1961

Answer 3

(1) Everyone is guilty of obtaining by deception or causing loss by deception who, by any deception and without claim of right,-
(a) obtains ownership or possession of, or Control over, any Property, or any Priviledge, Pecuniary advantage, Service, Benefit, or Valuable Consideration, directly or indirectly;

Question 4

Section 240 (1)(b) CA 1961

Answer 4

(1) Everyone is guilty of obtaining by deception or causing loss by deception who, by any deception and without claim of right,-
(b) in incurring any debt or liability, obtains credit; or

Question 5

Section 240 (1)(c) CA 1961

Answer 5

(1) Everyone is guilty of obtaining by deception or causing loss by deception who, by any deception and without claim of right,-
(c) Induces or Causes any other person to (MADE) Make, Alter, Accept, Deliver over, Destroy, Execute or Endorse any document or thing capable of being used to derive a Pecuniary Advantage; or

Question 6

Section 240 (1)(d) CA 1961

Answer 6

(1) Everyone is guilty of obtaining by deception or causing loss by deception who, by any deception and without claim of right,-
(d) causes loss to any other person

Question 7

Section 240 (1A) CA 1961

Answer 7

3 years who:

• Without reasonable excuse
• Sells, Transfers, or otherwise makes available any document or thing capable of being used to derive a pecuniary advantage knowing that,
• by deception and
• without claim of right
• the document or thing was, or was caused to be,
• Made, Altered, Accepted, Delivered, Executed or Endorsed.

Question 8

Section 240 (2)(a) CA 1961

Answer 8

Deception means:

(a) a false representation, whether oral, documentary, or by conduct, where the person making the representation intends to decieve 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

Question 9

Section 240 (2)(b)

Answer 9

Deception means:

(b) an omission to disclose a material particular, with intent to decieve any person, in circumstances where there is a duty to disclose it; or

Question 10

Section 240 (2)(c) CA 1961

Answer 10

Deception means:

(c) a fraudulent device, trick, or stratagem used with intent to decieve any person.

Question 11

Obtain definition

Answer 11

Section 217, Crimes Act 1961

Obtain, in relation to any person, means obtain or retain for himself or herself or for any other person

Question 12

Property definition

Answer 12

Section 2, Crimes Act 1961 Property includes real and personal property, and any estate or interest in any real or personal property, money, electricity, and any debt, and any thing in action, and any other right or interest.

Question 13

Valuable consideration

Answer 13

Compensation or a fee

Hayes V R

“in short, money or money’s worth”

For example:

• monetary payment in return for goods or services
• goods given in return for services provided
• issuing a false invoice to receive payment for goods never supplied.

A pecuniary advantage can amount to a favourable consideration when it involves a monetary advantage;

Valuable consideration is wider than a pecuniary advantage.

Question 14

Dishonesty

Answer 14

Section 217, Crimes Act 1961 Dishonestly,

in relation to an act or omission, means

• done or omitted without a belief
• that there was expressed or implied consent to, or authority for,
• the act or omission from a person entitled to give such consent or authority.

Question 15

Claim of Right

Answer 15

Section 2, Crimes Act 1961 claim of right, in relation to any act, means

• a belief at the time of the act in a proprietary or possessory right in 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 matter of law
• other than the enactment against which the offence is alleged to have been committed.

Question 16

Theft- takes or obtains

Answer 16

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.

Question 17

Pecuniary Advantage

Answer 17

Hayes v R [2008]

A pecuniary advantage is “anything that enhances the accused’s financial position. It is that enhancement which constitutes the element of advantage.”

EG:

• Cash from stolen goods
• Clothing or cash otained by a credit card or EFTPOS card
• A discount (Student ID)

Question 18

Hayes V R

Dishonesty

Answer 18

Hayes v R

The question is whether the belief is actually held, not whether that belief is reasonable. However, reasonableness may be relevant as evidence on the issue of whether the belief was actually held:

Supreme Court comment

• “the objective facts of a particular case
• may be such that the jury can properly infer
• that the defendant had a dishonest mind
• unless he or she can raise a reasonable doubt on the basis of a relevant but mistaken belief.”

Question 19

Taking

Answer 19

Section 219(4), Crimes Act 1961 Interpretation

For tangible property, theft is committed by a taking when the offender moves the property or causes it to be moved.

Question 20

Document

Answer 20

Document is defined in section 217 of the Crimes Act 1961.

document means a document, or part of a document, in any form; and includes, without limitation,—

(a) any paper or other material containing anything that can be read; or
(b) any photograph, or negatives, plate, slide, film, or microfilm, or
(c) any disc, tape, card, or other material or device or equipment on which information is stored or can be reproduced; or
(d) any material by means of which information is supplied, whether directly or by means of any equipment, to any device used for recording or storing or processing information; or
(e) any material derived, whether directly or by means of any equipment, from information recorded or stored or processed by any device used for recording or storing or processing information

Question 21

Document

R V Misic

Answer 21

R v Misic

“Essentially a document is a thing which provides evidence or information or serves as a record.

Question 22

Uses or attempts to use

Answer 22

Hayes v R

• An unsuccessful use of a document is as much use as a successful one.
• The concept of attempt relates to use not to the ultimate obtaining of a pecuniary advantage, which is not a necessary ingredient of the offence.

Question 23

Nature of belief - 4 Points

Answer 23

1. The belief relates to an element of ownership of the property in question or a right to take possession of it.
2. The belief must be about rights to the property in relation to which an offence is alleged to have been committed.
3. The belief must be held at the time of the alleged conduct
4. The belief must actually be held, does not have to be reasonable and may be based on ignorance or mistaken facts.

Question 24

R v MORLEY -(s240(2))

Answer 24

An intention to decieve requires that the deception is practised in order to decieve the affected party. Purposeful intent is necessary and must exist at the time of the deception.

Question 25

R v MORLEY - Representation

Answer 25

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

Context:

It is important to analyse what meaning was conveyed to the affected party

Question 26

Silence within the context of a representation

Answer 26

R V Waterfall

General rule:

• 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.

REF: Police V Dronjak - price tags

Question 27

Knowledge to be established by

Answer 27

1. An admission
2. Implication from the circumstances surrounding the event
3. Propensity

Question 28

Material Particular

Answer 28

An important, essential or relevant detail or item

Rv Mallett MP is something important or something that matters

Question 29

Omission

Answer 29

Inaction ie not acting. It can be either a conscious decision not to do something or not giving thought to the matter at all.

Question 30

Device, trick or stratagem definitions

Answer 30

Device: a plan, scheme or trick

Trick: An action or scheme undetaken to fool, outwit or decieve

Stratagem: A cunning plan or scheme especailly for deceiving an enemy

A fraudulent devise, trick or stratagem used with intent to decieve must be fradulent and morally wrong

Question 31

Privilege or Benefit

Answer 31

Both mean a special right or advantage

EG:

• Using anothers GYM membership cards
• Access to medical services

Question 32

Credit

Answer 32

• Is intangable
• Must be in respect to monetary obligation

Question 33

Control

Answer 33

To exercise authoritaive or dominating influence or command

Question 34

Debt/ Liability Definition

Answer 34

Debt: money owing

Liability: legally enforeceable financial obligation to pay (cost of a meal)

Question 35

Fisher V Raven - obligation to pay

Answer 35

‘Credit’ refers to the obligation on the debtor to pay or repay, and the time given for them to do so by the creditor. Credit does not extent to an obligation to supply services or goods.

Question 36

R V McKAY

Answer 36

Mckay’s hotel:

Intention to decieve is essential and must exist at the time when the deception is perpetrated.

On appeal it was held that the Credit had been obtained on booking in but at that time the accused did not possess the intent to decieve.

Question 37

Service

Answer 37

R v Cara

Service is limited to financial or economic value, and excludes privileges or benefits.

Question 38

Induces (Sec240(1)(c)

Definition+ proof

Answer 38

To persuade, bring about or give rise to.

Victim must prove:

• that the false representation was believed
• as a consequence of that belief the victim parted with his or her money

Question 39

R v Laverty

Answer 39

“the prosecution must prove that the person parting with the property was induced to do so by the false representation made”

Question 40

Dishonesty - Comment

Answer 40

Is a state of mind, the fact that the defendant acted without the requisite belief and therefore dishonestly, may be inferred from the circumstances.

Question 41

R v Cox

Answer 41

Possession involves two elements.

• The first, the physical element, is actual or potential physical custody or control.
• The second, the mental element, is a combination of knowledge and intention - knowledge in the sense of an awareness by the accused that the substance is in his possession and an intention to exercise possession.

Question 42

Proof of possession

Answer 42

Proof of both elements physical and mental must be proved

Question 43

Inquiries to be made into cheque fraud

Answer 43

• The account number and date it was opened
• The nature and amount of the first deposit
• details of any other deposits
• details used when the account was opened
• descriptions of the suspects and associates
• Full basic details and statements from employees who opened the account(s)
• serial numbers of the cheques supplied
• detaisl of the dishonoured cheques and people/ firms defrauded

Question 44

Definitions for:

1. Deliver over,
2. Alter,
3. Accept,
4. Execute
5. Endorse

Answer 44

1. Surrender up
2. Change in Character or composition
3. Recieve something
4. Put a course of action into effect
5. write or sign on a document

Question 45

‘Thing’ definition

Answer 45

A thing must be tangible

Question 46

Loss - meaning

Answer 46

Most cases will involve financial detriment to the victim. Loss caused by deception must be in nature- direct loss. (you can’t have expected or anticipated loss)

R v MORLEY - Loss

“Is assessed by the extent to which the complianants position before the deception had been dminished or impaired.”

Question 47

What is required to be proved in Loss by deception

Answer 47

1. The loss was caused by Deception
2. It was reasonably foreseeable some more than trivial loss would occur
3. Do not need to prove the loss was intentionally caused

Question 48

Person

Answer 48

Section 2 CA 1961

Person, owner, crown, body of persons, whether incoorporated or not, inhabitants of a district of any local authority

Question 49

Penalty for deception offences

Answer 49

Section 241, Crimes Act 1961

a) 1k + =7yrs max
b) $500-1k = 1yr max
c) <$500 = 3 months max

Question 50

Induces -what to prove

Answer 50

It is necessary for the prosecution to prove that:

• the person parting with the property was induced to do so by the false representation made.

Question 51

Section 240(1)(d) what needs to be proved:

Answer 51

• the loss was caused by a deception
• it was reasonably foreseeable some more than trivial loss would occur, but
• need not prove the loss was intentionally caused.

Question 52

Deception –what needs to be proved

Answer 52

• -There was an intent to deceive
• There was a representation made 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 53

3 ways of making a representation + examples

Answer 53

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 54

Attempt

Answer 54

S72(1) CA61

Every one who,

• having an intent to commit an offence,
• does or omits an 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.