DECEPTION - Definitions

Question 1

False Representation

Answer 1

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

Question 2

Intent to Deceive

Answer 2

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

Question 3

Claim of Right

Answer 3

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.

Question 4

Obtain

Answer 4

Obtain - Section 217 Crimes Act 1961

In relation to any person means obtain or retain for him/her self or for any other person.

Question 5

Possession

Answer 5

Possession

May be actual or constructive.

Question 6

Actual Possession

Answer 6

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.

Question 7

Constructive Possession

Answer 7

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].”

Question 8

CONTROL

Answer 8

CONTROL

To “control” something means to exercise authoritative or dominating influence or command over it

Question 9

Property

Answer 9

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.

Question 10

Privilege or Benefit

Answer 10

Privilege or Benefit

Special right or advantage.

Question 11

Pecuniary advantage & Case Law

Answer 11

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.”

Question 12

Valuable Consideration & Case Law

Answer 12

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”.

Question 13

Value

Answer 13

Value

Value must be established to determine max penalty.

Question 14

Credit/OBLIGATION TO PAY & Case Law

Answer 14

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.

Question 15

Recklessness & Case Law

Answer 15

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.

Question 16

MATERIAL PARTICULAR

Answer 16

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.

Question 17

Document & Case Law

Answer 17

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.

Question 18

LOSS & Case Law

Answer 18

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.”

Question 19

Dishonestly & Case Law

Answer 19

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:

Question 20

Takes

Answer 20

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.

Question 21

Uses & Case Law

Answer 21

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.

Question 22

Attempts

Answer 22

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.

Question 23

Concept of title

Answer 23

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.

Question 24

Dishonesty other than deceit

Answer 24

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.

Question 25

Voidable title

Answer 25

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.