Deception definitions

Question 1

What is the required factor with regard to deception of an offender’s ‘intent to obtain’?

Answer 1

They must intend to obtain BY the deception.

Question 2

Obtain

Answer 2

To obtain or retain for himself or herself or for any other person.

Question 3

Property

Answer 3

Property includes any 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 4

R v Cara

Answer 4

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

Question 5

Hayes v R - pecuniary advantage?

Answer 5

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

Question 6

Hayes v R - valuable consideration

Answer 6

A valuable consideration is ‘anything capable of being valuable consideration, whether of a monetary kind or of any other kind, in short, money or money’s worth’.

Question 7

What are three examples of valuable consideration?

Answer 7

1. Monetary payment for goods or services
2. Goods given in return for services provided
3. Issuing a false invoice to receive payment for goods never supplied

Question 8

Dishonestly

Answer 8

Acting without a belief that there was expressed or implied consent from a person in a position to give such consent or authority.

Question 9

Claim of right

Answer 9

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.

It must exist at the time the offence is commtted and must relate to property that the offence relates to.

It must be honest and genuine.

That belief may be based on ignorance or mistake of fact or of any matter of law other than the enactment against which the offender is alleged to have been committed.

Question 10

Takes

Answer 10

Moves the property or causes it to be moved

Question 11

Document

Answer 11

R v Misic - a document is a thing which contains evidence or information or serves as a record.

S217 CA - a document, or part of a document, in any form.

Question 12

Use

Answer 12

To use in any way

Question 13

Attempts

Answer 13

In having an intent to commit an offence;

Does or omits an act for the purpose of accomplishing his object;

Whether in the circumstances it was possible to commit the offence or not.

Question 14

Deception

Answer 14

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 a material particular, or
(ii) is reckless as to whether it is false in a material particular, or
(b) an omission to disclose a material particular, with intent to deceive any person, in circumstances where there is a duty to disclose it, or
(c) a fraudulent device, trick or stratagem used with intent to deceive any person.

Question 15

Control over

Answer 15

Oxford dictionary: ‘The power of directing, command.’

Question 16

Privilage/Benefit

Answer 16

A special right or advantage

Question 17

Debt

Answer 17

Money owing from one person to another

Question 18

Credit

Answer 18

An obligation on the debtor to pay or repay, and the time given for them to do so by the creditor.

Question 19

Deliver over

Execute

Make

Accept

Endorse

Destroy

Alter

Answer 19

Deliver over - to surrender something

Execute - to put a course of action into effect

Make - (‘make’ it up)

Accept - to receive something

Endorse - to write or sign on a document

Destroy - (make it up)

Alter - to change in character or composition

Question 20

Loss

Answer 20

Financial detriment to the victim

Question 21

Morley v R in relation to loss

Answer 21

“The loss alleged by the victim must have been induced 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.”

Question 22

Thing capable of being used to derive a pecuniary advantage

Answer 22

Simester and Brookbanks - The thing must be tangible AND must be capable of being used to derive a pecuniary advantage

Question 23

To any other person

Answer 23

Someone other than the defendant

Question 24

What is false representation?

Answer 24

The representation must be false and the defendant must know or believe that it is false in a material particular, or be reckless whether it is false. Absolute certainty is not required and wilful blindness as to falsity of the statement will suffice.

Question 25

What are the three points that are required to be proved with regard to deception?

Answer 25

1. That there was an intent to deceive
2. That there was a representation by the defendant
3. That the representation was false, and that the defendant either knew it to be false in a material particular OR was reckless whether it was false in a material particular.

Question 26

R v Morley - deception

Answer 26

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

Question 27

Obtains - in relation to obtaining by deception

Answer 27

Goods are obtained by a defendant if the goods come under their control, even though they may not have physical possession of them.

Property may be obtained if a deception made to one person means that the property is then actually obtained from another person, provided that the deception operated on the mind of the person giving up the property.

Question 28

What is an example of false representation orally?

Answer 28

Verbally claiming to own goods that are in fact subject to a hire purchase agreement.

Question 29

What is an example of false representation by conduct?

Answer 29

Representing oneself to be a collector for charity by appearing to be carrying an official collection bag.

Question 30

What is an example of documentary false representation?

Answer 30

Presenting a false certificate or qualification, or completing a valueless cheque on an account in which there are no funds knowing that the cheque will not be honoured.

Question 31

Is silence or non-disclosure regarded as a representation? Are there any exceptions to this? Case law?

Answer 31

Generally not, however there can be exceptions, such as in R v Dronjak or Rao v Police.

Question 32

What does Police v Dronjak state regarding maintaining silence? (Defendant allowed a cashier to charge a lower price shown on a second price tag on a car radio that he knew to be worth more than the price on that second tag)

Answer 32

By maintaining silence int he face of a mistake known to him and deliberately refraining from drawing the checkout assistant’s attention to the mistake, Dronjak had obtained title to the radio by a false pretence (deception).

Question 33

What does Rao v Police state regarding false representation?

Answer 33

The defendant had removed price tags and replaced them with cheaper ones. Here the Court held the representation the appellant made was the representation inherent in his conduct that the price tickets on the articles handed to the checkout operator were the same tickets as those placed on the goods by the store.

Question 34

What must the prosecution prove regarding knowledge of a false representation on the part of the defendant?

Answer 34

That the defendant knew that the representation was false in a material particular or was reckless as to its falsity. Absolute certainty is not required.

Question 35

In what three ways can knowledge of a false pretence be established?

Answer 35

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

Question 36

What does it mean to act “recklessly”?

Answer 36

To act recklessly involves consciously and deliberately taking an unjustifiable risk.

Question 37

Where will a duty to disclose with regard to material particulars usually originate?

Answer 37

Civil law, such as parties in a contractual relationship.

Question 38

What are the definitions of ‘device’, ‘trick’ and ‘stratagem’?

Answer 38

Device: A plan, scheme or trick

Trick: An action or scheme undertaken to fool, outwit or deceive

Stratagem: A cunning plan or scheme especially for deceiving an enemy, or trickery.

Question 39

When discussing a ‘privilege’ or ‘benefit’, are they limited to those of a pecuniary nature? Examples?

Answer 39

No. Some examples could be:

• Using another person’s gym card to access.
• Access to medical services.
• Withdrawal of an assault charge.
• Reduction in sentence for offence.

Question 40

What is the distinction between theft and obtaining by deception?

Answer 40

In theft, the property is obtained without the owner’s permission and title is not passed on.

Question 41

What concept is ownership synonymous with?

Answer 41

That of ‘title’.

Question 42

Discuss possession referencing the physical and mental elements of it

Answer 42

The physical element requires the physical custody or control over the item in question and can be “actual” or “potential”

Actual - When the thing in question is in a person’s physical custody.

Potential - When the person has the potential to have the thing in question, in their control. For example, storing the thing in question at an associate’s house or through an agent.

The mental element is a combination of both knowledge that the person possesses the item in question and an intention to possess the item.

Question 43

What are some examples of ‘pecuniary advantage’?

Answer 43

• Cash from stolen goods
• Clothing or cash obtained by a credit/EFTPOS card
• A discount from a student ID card
• Avoiding or deferring payment of debt

Question 44

What is the condition placed on the ingredient of ‘debt or liability incurred’ when obtaining credit by deception? What is the meaning of ‘debt’ and ‘liability’?

Answer 44

The debt or liability incurred must be legally enforceable. A debt is money owing from one person to another A liability is a legally enforceable financial obligation to pay, such as the cost of a meal.

Question 45

What does Simester and Brookbanks: Principles of Criminal Law state regarding the legality of a debt or liability incurred?

Answer 45

That the debt or liability must be legally enforceable - if the contract is void or illegal there will be no offence.

Question 46

What does Fisher v Raven state regarding obligation to pay?

Answer 46

‘Credit’ refers to the obligation on the debtor to pay or repay, and the time given for them to do so by the creditor.

Question 47

What are the restrictions on time to pay regarding credit obtained?

Answer 47

It may involve varying periods of time, such as the time of a loan agreement, or the time taken to consume a meal or receive a haircut.

Question 48

In cases of obtaining credit, would it be sufficient if the defendant obtained the extension of credit to another (3rd) person?

Answer 48

Yes - the extended definition of ‘obtain’ means this will be sufficient.

Question 49

What are three examples of situations where credit may be obtained?

Answer 49

1. Obtaining money on a loan 2. Extending existing overdraft facilities 3. Renting or leasing a dwelling

Question 50

Is credit a tangible or intangible thing?

Answer 50

Intangible - credit obtained must be in respect of a monetary obligation.

Question 51

Gaining credit is not in itself unlawful. What must it be accompanied by to be unlawful?

Answer 51

An intent to deceive.

Question 52

What must be the timing of intention to deceive when obtaining credit?

Answer 52

The intention to deceive must exist at the time when the deception is perpetrated.

Question 53

What does R v McKay state regarding obtaining credit? (The defendant booked into a motel and offered to pay in advance. He was told to pay in the morning when leaving although the following morning he left without paying)

Answer 53

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 deceive.

Question 54

What section of the CA1961 specifies the punishments for obtaining or causing loss by deception?

Answer 54

S241.

Question 55

Is propensity evidence admissible in cases of obtaining by deception?

Answer 55

Yes, where there is a sufficiently strong connection between the offences - persistent honesty across the board would be unlikely to bring the propensity rule into play.

Question 56

What are the two concepts on which the difference between theft and obtaining by deception hinges?

Answer 56

1. Possession 2. Ownership

Question 57

What is “title”?

Answer 57

A legal right to property.

Question 58

Can a seller pass title on to a buyer when they have no rights of ownership to the goods themselves?

Answer 58

They can pass on no better title to property than they themselves own - the buyer can receive no greater interest in the goods than the seller had.

Question 59

What is the name of a title obtained by deception?

Answer 59

A “voidable title” - this means that the title can be “avoided” or vacated by the seller, however until the title is avoided, the defrauder has a title (albeit a voidable one) and can confer good title on anyone who acquires the goods from him or her in good faith.

Question 60

What are the two necessary actions to avoid title?

Answer 60

1. Communication with the defrauder. 2. By advising the Police.

Question 61

What happens when voidable title is passed on before it is avoided? Which piece of legislation comes into play?

Answer 61

S25 Sale of Goods Act 1908 - where the seller of goods has a voidable title thereto, but his title has not been avoided at the time of the sale, the buyer acquires a good title to the goods provided he buys them in good faith and without notice of the seller’s defect of title.

Question 62

Does a thief ever obtain title to stolen goods?

Answer 62

No.

Question 63

R v Love

Answer 63

A deliberate failure to disclose some material matter by a person who has a duty to disclose it will come within the definition of deception

Question 64

Penalties for deception

Answer 64

Exceeds $1,000 - 7 years

$500-$1000 - 1 year

Less than $500 - 3 months