DECEPTION - Definitions Flashcards
False Representation
False 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 the falsity of the statement will suffice
Intent to Deceive
Intent to Deceive
Offender must know representation is false and intend other person to act upon it as genuine.
R v MORLEY
An intention to deceive requires that the deception is practised in order to deceive the affected party. Purposeful intent is necessary and must exist at the time of the deception
Claim of Right
Claim of Right – Section 2 Crimes Act 1961
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.
Obtain
Obtain - Section 217 Crimes Act 1961
In relation to any person means obtain or retain for him/her self or for any other person.
Possession
Possession
May be actual or constructive.
Actual Possession
Actual Possession
Actual possession arises where the thing in question is in a person’s physical custody; it is on or about their person, or immediately at hand.
WARNER v MET POL COMMISSIONER
Ideal possession is:
- Complete physical control
- Knowledge of existence, situation, qualities.
Constructive Possession
Constructive Possession
Constructive possession arises when something is not in a person’s physical custody, but they have ready access to it or can exercise control over it.
SULLIVAN V EARL OF CAITHNESS
“[Possession includes} not merely those who have physical custody of firearms … but also those who have firearms under their control at their behest, even though for one reason or another they may be kept at [another location].”
CONTROL
CONTROL
To “control” something means to exercise authoritative or dominating influence or command over it
Property
Property - 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.
Privilege or Benefit
Privilege or Benefit
Special right or advantage.
Pecuniary advantage & Case Law
Pecuniary advantage
Economic or monetary advantage.
R v HAYES
A pecuniary advantage is “anything that enhances the accused’s financial position. It is that enhancement which constitutes the element of advantage.”
Valuable Consideration & Case Law
Valuable Consideration:
Receiving compensation or a fee
R v HAYES
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”.
Value
Value
Value must be established to determine max penalty.
Credit/OBLIGATION TO PAY & Case Law
Credit/OBLIGATION TO PAY
FISHER v RAVEN
Refers to the obligation on the debtor to pay or repay in the time given to do so by the creditor. The obligation to pay must be legally enforceable
R v MCKAY
Intention to deceive must exist when credit obtained.
Recklessness & Case Law
Recklessness
A conscious and deliberate taking of an unjustifiable risk.
R v HARNEY
Recklessness involves foresight of dangerous consequences that could well happen together with an intention to continue the course of conduct regardless of the risk.
MATERIAL PARTICULAR
MATERIAL PARTICULAR
Prosecution must establish that the defendant knows or believes his representation is false in a material particular, or is reckless as to whether it is false. A minor detail may amount to a “material particular” if it is of consequence to the facts of the case.
Not defined in the Crimes Act given its usual meaning of an important, essential or relevant detail.
Document & Case Law
Document - Section 217 Crimes Act 1961
Includes part of a document in any form, and includes:
Paper/material containing anything that can be read
Photos, negatives and related items
Discs, tapes, cards or other devices/equipment on which information is stored and can be reproduced
R v MISIC
Essentially a document is a thing, which provides evidence or information or serves as a record.
LOSS & Case Law
LOSS
Is likely to include financial and property losses and may also encompass emotional, cultural and intellectual losses. This term is broad and encompassing. It may include financial or non-financial loss.
R v MORLEY
“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.”
Dishonestly & Case Law
Dishonestly - Section 217, Crimes Act 1961
In relation to an act or omission, means done or omitted without a belief that there was express or implied consent to, or authority for, the act or omission from a person entitled to give such consent or authority.
R v HAYES
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:
Takes
Takes – 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.
Uses & Case Law
Uses
“Use” can include a single action such as the handing over of a document to it’s intended recipient or the continuing use of a document.
R v HAYES
Unsuccessful use of a document is as much “use” as a successful one. The concept of attempt relates to the use not to the obtaining of advantage therefore it may be difficult to draw a line between use and attempted use.
Attempts
Attempts – Section 72, Crimes Act 1961
Everyone who, having an attempt to commit an offence does or omits an act for the purpose of accomplishing his object, is guilty of an offence to commit the offence intended, whether in the circumstances it was possible to commit the offence or not.
Concept of title
Concept of title
“Title” is not defined in the Crimes Act 1961. The Concise Oxford Dictionary defines title as ‘a right or claim to the ownership of property’. Title simply means a legal right to the property.
Dishonesty other than deceit
Dishonesty other than deceit
There is a difference between theft and obtaining by deceit. A thief never gets title. Deception or inducement causing another to hand over goods with the intention of passing on title does.
Voidable title
Voidable title
A title obtained by deception, fraud, duress or misrepresentation is called a voidable title. This means that the title can be avoided by the seller.
