Deception Liabilities Flashcards
With intent to obtain any property, service, pecuniary advantage or valuable consideration
INTENT
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.
OBTAIN
Obtain, in relation to any person, means obtain or retain for himself or herself or any other person.
SEC 217 CA 61
PROPERTY
Includes real or 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
SEC 2 CA 61
OR
SERVICE
Not defined in the Crimes Act 1961
OR
PECUNIARY ADVANTAGE
Basically means an economic or monetary advantage
A pecuniary advantage is anything that enhances the accused’s financial position. It is that enhancement which constitutes the element of advantage
HAYES v R
OR
A valuable consideration is anything capable of being a valuable consideration, whether of a monetary kind or of any other kind, in short, money or money’s worth
HAYES v R
Dishonestly
DISHONESTLY
In relation to any 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
SEC 217 CA 61
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.
And without claim of right
CLAIM OF RIGHT
In relation to any act, means a belief at the time 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 any matter of law other than the enactment against which the offences is alleged to have been committed
SEC 2 CA 61
Takes or obtains a document
TAKES
For tangible property, theft is committed by a taking when the offender moves the property or causes it to be moved.
SEC 219(4) CA 61
OR
OBTAINS
Means to obtain or retain for themselves or another person
SEC 217 CA 61
DOCUMENT
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 or can be reproduced.
SEC 217 CA 61
Essentially a document is a thing which provides evidence or information or serves as a record.
R v MISIC
Uses or attempts to use a document
USES OR ATTEMPTS TO USE
The prosecution must prove that the offender used or attempted to use the document with the intent to obtain the property, service, pecuniary advantage or valuable consideration.
An unsuccessful use of a document is as much use as a successful one. An unsuccessful use must not be equated conceptually with an attempted one. The concept of attempt relates to use not to the ultimate obtaining of a pecuniary advantage, which is not a necessary ingredient of the offence. Because the use does not have to be a successful it may be difficult to draw a clear line between use and attempted use.
HAYES v R
DOCUMENT
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 or can be reproduced.
SEC 217 CA 61
Essentially a document is a thing which provides evidence or information or serves as a record.
R v MISIC
Obtains by Deception
OBTAINS
Means to obtain or retain for themselves or another person
DECEPTION
(2) means
(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 a false representation, 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.
Obtains ownership or possession or control
OBTAINS
Means to obtain or retain for themselves or another person
Ownership, possession or control may be directly or indirectly obtained.
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.
R v COX
CONTROL
To “control” something means to exercise authoritative or dominating influence or command over it.
Property OR Privilege OR Service OR Pecuniary advantage OR Benefit OR Valuable Consideration
PROPERTY
Includes real or 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
SEC 2 CA 61
OR
SERVICE
Not defined in the Crimes Act 1961
OR
PECUNIARY ADVANTAGE
Basically means an economic or monetary advantage
A pecuniary advantage is anything that enhances the accused’s financial position. It is that enhancement which constitutes the element of advantage
HAYES v R
OR
A valuable consideration is anything capable of being a valuable consideration, whether of a monetary kind or of any other kind, in short, money or money’s worth
HAYES v R
PRIVILEGE OR BENEFIT
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’.
incurred any debt OR liability OR obtains credit
The debt or liability (incurred) must be legally enforceable.
DEBT
Money owing
LIABILITY
means a legally enforceable financial obligation to pay, such as the cost of a meal.
OBTAINS
Means to obtain or retain for themselves or another person
CREDIT
Refers to the obligation on the debtor to pay or repay, and the time given for them to do so by the creditor.
induces or causes any other person to
INDUCE
to persuade, bring about or give rise to
R v LAVERTY [1970] 3 All ER 432
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.
CAUSES
The accused must cause the loss.
Loss
The term “loss” is not defined by statute, but in most cases will involve financial detriment to the victim
Person
Gender Neutral. Proved by judicial notice or circumstancial evidence. Also companies and other organisations
accesses any computer system
ACCESS
Widely defined and covers almost all interactions with a computer. Access requires that the person instructing or communicating with the computer system has some form of connection with the computer system through which instructions or communications may pass
COMPUTER SYSTEM
Widely defined to include all related input, output, processing, storage, software, or communication facilities, and stored data
knowledge
Knowledge means knowing or correctly believing, if the belief is wrong then someone cannot know something.
Recklessnes
R v Harney [1987] 2 NZLR 576 (CA)
“Recklessness means the conscious and deliberate taking of an unjustified risk. In
New Zealand it involves proof that the consequence complained of could well
happen, together with an intention to continue the course of conduct regardless of
risk.”
