Deception Definitions

Question 1

Claim of Right

Answer 1

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 2

Obtain

Answer 2

In relation to any person, means obtain or retain for himself or herself or for any other person.

Question 3

Property

Answer 3

Includes real and personal property, and any estate or interest in any real or personal property, money, electricity, and any debt, and anything in action, and any other right or interest.

Question 4

Service

Answer 4

Is limited to financial or economic value and excludes privileges
or benefits.

Question 5

Pecuniary Advantage

Answer 5

Anything that enhances the accused’s financial position.

It is that enhancement which constitutes the element of advantage.

Examples
* Cash from stolen goods.
* Clothing or cash obtained by a credit or EFTPOS card.
* A discount (by using a student ID card).
* Avoiding or deferring payment of a debt.

Question 6

Valuable Consideration

Answer 6

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

Dishonestly

Answer 7

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 8

Takes

Answer 8

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

Question 9

Document

Answer 9

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

Question 10

Attempts

Answer 10

Every one who, having an intent to commit an offence, does or omits an act for the purpose of accomplishing his object.

Question 11

Deception

Answer 11

(a) 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 12

Representation

Answer 12

This is not defined. Examples have included representations about a past or present fact, about a future event, or about an existing intention, opinion,
belief, knowledge or other state of mind.

Simester & Brookbanks suggest that “It must be capable of being false so it must contain a proposition of fact”.

Question 13

Intent

Answer 13

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.

Question 14

Knowledge

Answer 14

Knowing or correctly believing. They further premise that “the defendant may believe something wrongly but cannot ‘know’ something that is false”.

Knowledge can be established by:
* an admission
* implication from the circumstances surrounding the event
* propensity evidence

Question 15

Omission

Answer 15

Omission is not defined within the Crimes Act 1961. 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 16

Device

Answer 16

A plan, scheme or trick.

Question 17

Trick

Answer 17

An action or scheme undertaken to fool, outwit, or deceive.

Question 18

Stratagem

Answer 18

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

Question 19

Privilege/Benefit

Answer 19

The words “privilege” or “benefit” are not limited to a privilege or benefit of
a pecuniary nature. Both of these words mean a ‘special right or advantage’.

Examples
* Using another person’s gym membership card so that you can use the gym facilities.
* Access to medical services.
* The withdrawal of an assault charge.
* A reduction in sentence for an offence.

Where the benefit or privilege does not involve money, there does not need to be financial loss or injury to the person who has been defrauded.

Question 20

Possession

Answer 20

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. KKI

Question 21

Control

Answer 21

To exercise authoritative or dominating influence or command over it.

Ordinary usage and the dictionary definition show that a defendant does not need to possess something in order to control it.

Question 22

Debt

Answer 22

Money owing from one person to another.

Question 23

Liability

Answer 23

A legally enforceable financial obligation to pay, such as the
cost of a meal.

Question 24

Credit

Answer 24

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

Question 25

Induces

Answer 25

To persuade, bring about or give rise to.

Question 26

Causes

Answer 26

The defendant, or an act of the defendant, must be the substantial and
operative cause of the delivery, execution etc, of any document capable of
deriving pecuniary advantage.

The accused must cause the loss.

Question 27

Deliver Over

Answer 27

To surrender up someone or something.

Question 28

Execute

Answer 28

To put a course of action into effect.

Question 29

Endorse

Answer 29

To write or sign on a document.

Question 30

Alter

Answer 30

To change in character or composition, typically in a comparatively small but significant way.

Question 31

Accept

Answer 31

To receive something.

Question 32

Thing

Answer 32

Simmester & Brookbanks defines “thing” as a broad and encompassing
concept. However, it appears that the “thing” must be tangible.

Again the “thing” must be capable of being used to derive a pecuniary
advantage.

Question 33

Loss

Answer 33

The term “loss” is not defined by statute, but in most cases will involve
financial detriment to the victim.

The loss caused by deception must be in the nature of a direct loss.

Question 34

Any Other Person

Answer 34

Legislation provides a wide definition of the term “person” that incorporates
not only real people, but also companies and other organisations.

Person, owner, and other words and expressions of the like kind, include the Crown and any public body or local authority, and any board, society, or
company, and any other body of persons, whether incorporated or not, and the inhabitants of the district of any local authority, in relation to such acts and things as it or they are capable of doing or owning.

Question 35

Propensity Evidence

Answer 35

(a) Evidence that tends to show a person’s propensity to act in a particular
way or to have a particular state of mind, being evidence of acts, omissions, events, or circumstances with which a person is alleged to have been involved; but

(b) Does not include evidence of an act or omission that is—

(i) 1 of the elements of the offence for which the person is being tried; or
(ii) the cause of action in the proceeding in question.

Question 36

Title

Answer 36

A legal right to the property.

Question 37

Voidable Title

Answer 37

A title obtained by deception, fraud, duress or misrepresentation.

Question 38

Access

Answer 38

In relation to any computer system, means instruct, communicate with, store data in, receive data from, or otherwise make use of any of the resources of the computer system.

Question 39

Authorisation

Answer 39

Includes an authorisation conferred on a person by or under an enactment or a rule of law, or by an order of a court or judicial process.

Question 40

Computer System

Answer 40

(a) means—
(i) a computer; or
(ii) 2 or more interconnected computers; or
(iii) any communication links between computers or to remote terminals or another
device; or
(iv) 2 or more interconnected computers combined with any communication links
between computers or to remote terminals or any other device; and

(b) includes any part of the items described in paragraph (a) and all related input, output,
processing, storage, software, or communication facilities, and stored data.