Deception Definitions

Question 1

Deception Definition (Legislation)

CA1961 Section 240(2)

Answer 1

CA1961 Section 240(2)

(a) A false representation, whether oral, documentary, or by conduct, made with intent to deceive, and knows, or is reckless if false in a material particular, or

(b) An omission to disclose a material particular, with intent to deceive, where there is a duty to disclose it,

(c) or a fraudulent device, trick, or stratagem used with intent to deceive.

NOTE: Must know verbatim, and write with any of the Section 240(1) liabilities under element the first element “By any deception” (with accompanying caselaw R v Morley).

Question 2

“By any deception” caselaw.
Intention to deceive
R v Morley

Answer 2

R v Morley –

Intention to deceive requires purposeful intent at the time the deception is practiced.

NOTE: Must know verbatim, and write with any of the Section 240(1) liabilities under the first element “By any deception” (with accompanying definition of Deception S240(2)).

Question 3

Deception

What is required to be proved

Answer 3

• There was an intent to deceive
• There was a representation 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 4

Intent defined
(criminal law context)

Answer 4

In a criminal law context there are two specific types of intention in an offence.

Firstly there must be an intention to commit the act and secondly, an intention to get a specific result.

Simple answer: a deliberate act in order to get a specific result

Question 5

Three ways of making a false representation (and examples)

Answer 5

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 6

A representation by the defendant
Caselaw - R v Morley

Answer 6

R v Morley

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

Question 7

Deception - Silence

Answer 7

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.

Question 8

Knowledge Definition

Answer 8

Simester and Brookbanks -
Knowing means knowing or correctly believing. The defendant may believe something wrongly, but cannot ‘know’ something that is false”.

Question 9

False in a material particular
Caselaw - R v Mallett

Answer 9

The prosecution must establish either that the defendant knows or believes his representation is false in a material particular or is reckless as to whether it is false.

Material particular: an important, essential or relevant detail or item;

R v Mallett: “A matter will be a ‘material particular’ if it is something important or something that matters.”

Question 10

Fraudulent
Device
Trick
Stratagem

Answer 10

Fraudulent: Dishonest in the traditional moral sense

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 11

Omission

Answer 11

An omission is inaction, i.e. not acting. It can either be a conscious decision not to do something or not giving thought to the matter at all.

Question 12

Duty to disclose

Answer 12

There was some material particular that was not disclosed,
The defendant was under a duty to disclose,
and that the defendant failed to perform that duty.