DECEPTION - Ingredients => Definitions Flashcards
By any deception
Deception - Section 240(2) Crimes Act 1961
(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
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
Offender must know representation is false and intend other person to act upon it as genuine.
R v MORLEY
The intention to deceive requires that the deception be practiced in order to deceive the affected party. purposeful intent must exist at the time of the deception
R v LAVERTY
It is necessary for the prosecution to prove that the person parting with the property was induced to do so by the false representation made
RTS
And without 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.
RTS
Obtains ownership or possession of or control over any Property
OR
Any Privilege
OR
Service
OR
Pecuniary Advantage
OR
Benefit
OR
Valuable Consideration
Obtain - Section 217 Crimes Act 1961
To obtain or retain for himself or another.
Possession
May be actual or constructive.
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.
Actual Possession
WARNER v MET POL COMMISSIONER
Ideal possession is:
- Complete physical control
- Knowledge of existence, situation, qualities.
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.
Constructive:
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].”
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.
OR
Privilege or Benefit
Special right or advantage.
OR
Service
R v CARA
Limited to financial or economic value.
OR
Pecuniary advantage
Economic or monetary advantage.
HAYES v R
A pecuniary advantage is “anything that enhances the accused’s financial position. It is that enhancement which constitutes the element of advantage.”
OR
Valuable Consideration
receiving compensation or a fee
HAYES v R
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 must be established to determine max penalty.
RTS
In incurring any debt
OR
Liability
Incurred
To incur, bring upon oneself.
Debt
Money owing from one person to another.
OR
Liability
Legally enforceable financial obligation to pay, such as the cost of a meal.
RTS
Obtains Credit
Obtains Section 217, Crimes Act 1961
Obtain or retain for himself or another.
Credit
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.
RTS
Causes Loss to any person
‘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.
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.”
Person
Legislation provides a wide definition of the term “person” that incorporates not only real people, but also companies and other organisations
RTS
With intent to obtain any Property
OR
Service
OR
Pecuniary Advantage
OR
Valuable Consideration
Intent
A person does something intentionally if they mean to do it, they desire a specific result and act with the aim or purpose of achieving it.
R v MOHAN
Intent involves a decision to bring about in so far as it lies within the accused power, the commission of the offence.
R v WAAKA
A fleeting or passing thought is not sufficient, there must be a firm intent or a firm purpose to effect an act.
Obtain - Section 217 Crimes Act 1961
In relation to any person means obtain or retain for him/her self or for any other person.
Property - Section 2, Crimes Act 1961
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.
Service
R V CARA
Limited to financial or economic value.
Pecuniary advantage
economic or monetary advantage
HAYES V R
A pecuniary advantage is “anything that enhances the accused’s financial position. It is that enhancement which constitutes the element of advantage.”
Valuable Consideration
Wider than just pecuniary advantage eg goods given in exhange for services.
HAYES V R
A valuable consideration is “anything capapble of being valuable consideration, whether of a monetary kind or of any other kind, in short, money or money’s worth.”
RTS
Dishonestly
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.
HAYES V R
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:
RTS
Takes
OR
Obtains a document
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.
Obtain - Section 217 Crimes Act 1961
In relation to any person means obtain or retain for him/her self or for any other person.
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.
RTS
Uses
OR
Attempts to use any document
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.
HAYES v R
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.
OR
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.
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.
RTS
