Deception CIB 008 Part 1 Flashcards
Section 228 (1)(a) CA 1961
(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;
Section 228 (1)(b) CA 1961
(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.
Section 240 (1)(a) CA 1961
(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;
Section 240 (1)(b) CA 1961
(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
Section 240 (1)(c) CA 1961
(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
Section 240 (1)(d) CA 1961
(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
Section 240 (1A) CA 1961
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.
Section 240 (2)(a) CA 1961
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
Section 240 (2)(b)
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
Section 240 (2)(c) CA 1961
Deception means:
(c) a fraudulent device, trick, or stratagem used with intent to decieve any person.
Obtain definition
Section 217, Crimes Act 1961
Obtain, in relation to any person, means obtain or retain for himself or herself or for any other person
Property definition
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.
Valuable consideration
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.
Dishonesty
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.
Claim of Right
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.
Theft- takes or obtains
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.
Pecuniary Advantage
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)
Hayes V R
Dishonesty
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.”
Taking
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.
Document
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
Document
R V Misic
R v Misic
“Essentially a document is a thing which provides evidence or information or serves as a record.
Uses or attempts to use
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.
Nature of belief - 4 Points
- The belief relates to an element of ownership of the property in question or a right to take possession of it.
- The belief must be about rights to the property in relation to which an offence is alleged to have been committed.
- The belief must be held at the time of the alleged conduct
- The belief must actually be held, does not have to be reasonable and may be based on ignorance or mistaken facts.
R v MORLEY -(s240(2))
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.
R v MORLEY - Representation
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
Silence within the context of a representation
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
Knowledge to be established by
- An admission
- Implication from the circumstances surrounding the event
- Propensity
Material Particular
An important, essential or relevant detail or item
Rv Mallett MP is something important or something that matters
Omission
Inaction ie not acting. It can be either a conscious decision not to do something or not giving thought to the matter at all.
Device, trick or stratagem definitions
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
Privilege or Benefit
Both mean a special right or advantage
EG:
- Using anothers GYM membership cards
- Access to medical services
Credit
- Is intangable
- Must be in respect to monetary obligation
Control
To exercise authoritaive or dominating influence or command
Debt/ Liability Definition
Debt: money owing
Liability: legally enforeceable financial obligation to pay (cost of a meal)
Fisher V Raven - obligation to pay
‘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.
R V McKAY
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.
Service
R v Cara
Service is limited to financial or economic value, and excludes privileges or benefits.
Induces (Sec240(1)(c)
Definition+ proof
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
R v Laverty
“the prosecution must prove that the person parting with the property was induced to do so by the false representation made”
Dishonesty - Comment
Is a state of mind, the fact that the defendant acted without the requisite belief and therefore dishonestly, may be inferred from the circumstances.
R v Cox
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.
Proof of possession
Proof of both elements physical and mental must be proved
Inquiries to be made into cheque fraud
- 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
Definitions for:
- Deliver over,
- Alter,
- Accept,
- Execute
- Endorse
- Surrender up
- Change in Character or composition
- Recieve something
- Put a course of action into effect
- write or sign on a document
‘Thing’ definition
A thing must be tangible
Loss - meaning
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.”
What is required to be proved in Loss by deception
- The loss was caused by Deception
- It was reasonably foreseeable some more than trivial loss would occur
- Do not need to prove the loss was intentionally caused
Person
Section 2 CA 1961
Person, owner, crown, body of persons, whether incoorporated or not, inhabitants of a district of any local authority
Penalty for deception offences
Section 241, Crimes Act 1961
a) 1k + =7yrs max
b) $500-1k = 1yr max
c) <$500 = 3 months max
Induces -what to prove
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.
Section 240(1)(d) what needs to be proved:
- 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.
Deception –what needs to be proved
- -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
3 ways of making a representation + examples
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.
Attempt
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.
