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 will suffice
Intent to Deceive + Case Law
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 + Case Law
Actual Possession
- The thing in question is in a person’s physical custody; or
- 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 + Case Law
Constructive Possession
- 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 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.
Valuable Consideration + Case Law
Valuable Consideration:
- Receiving compensation or a fee
R v HAYES
- “Anything capable of being valuable consideration, whether of a monetary kind or any other kind; in short, money or money’s worth”.
Value
Value
Value must be established to determine max penalty.
Credit/Obligation to pay 2 x 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
An important, essential or relevant detail.
Prosecution must establish that the defendant knows or believes that 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.
Document + Case Law
Document - Section 217 Crimes Act 1961
A document 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
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
- Emotional, cultural and intellectual losses.
- May include financial or non-financial loss.
R v MORLEY
The loss alleged by the victim must have been:-
- As a result of the deception.
- It doesnt to be the only operating factor,
- As long as it played a part in causing the loss.”
Dishonestly + Case Law
Dishonestly - Section 217, Crimes Act 1961
- An act or omission, done or omitted
- Without consent, or authority
- From a person entitled to give such consent or authority.
R v HAYES
The question is
- Whether the belief was actually held,
- Not whether that belief was reasonable.
- Reasonableness may be relevant evidence on whether the belief was actually held.
Takes
Takes – Section 219(4) Crimes Act 1961
- Theft is committed by a taking of the property, or
- When the offender moves or causes it to be moved.
Uses + Case Law
Uses
“Use” can include a single action such as the handing over of a document or the continuing use of a document.
R v HAYES
An unsuccessful use of a document is as much a “use” as a successful one.
- An attempt relates to the “use” not 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 attempted to commit an offence
- Does or omits an act for the purpose of accomplishing his object,
- Is guilty of an attempt to commit the offence intended,
- Whether in the circumstances it was possible to commit the offence or not.
Concept of title
Concept of title
A legal right to the property.
Dishonesty other than deceit
Dishonesty other than deceit
The difference between theft and obtaining by deceit.
- A thief never gets title.
- A deceiver causing another to hand over goods with the intention of passing on title does.
