Deception Liabilities and Case Law

Question 1

Takes or Obtains a Document

Answer 1

Section 228(1)(a) Crimes Act 1961

DISHONESTLY
In relation to an act or omission, means done or omitted without a belief that there was expressed or implied consent to, or authority for, the act or omission from a person entitled to give such consent or authority.

AND WITHOUT CLAIM OF RIGHT
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.

TAKES
For tangible property, theft is committed by a taking when the offender moves the property or causes it to be moved.
OR
OBTAINS
In relation to any person, means obtain or retain for himself or herself or for any other person.

ANY DOCUMENT
Essentially a document is a thing which provides evidence or information or serves as a record.
(R v MISIC)

WITH INTENT TO OBTAIN
(2x Intent)

PROPERTY
Real and 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.
OR
SERVICE
(Not defined)
OR
PECUNIARY 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
VALUABLE CONSIDERATION
Anything capable of being valuable consideration, whether of a monetary kind or of any other kind; in short, money or money’s worth.
(Hayes v R)

Question 2

Uses/Attempts to Use a Document

Answer 2

Section 228(1)(b) Crimes Act 1961

DISHONESTLY
In relation to an act or omission, means done or omitted without a belief that there was expressed or implied consent to, or authority for, the act or omission from a person entitled to give such consent or authority.

AND WITHOUT CLAIM OF RIGHT
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.

USES
OR
ATTEMPTS TO USE
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 element of the offence. Because the use does not have to be successful it may be difficult to draw a clear line between use and attempted use.”
(HAYES v R)

ANY DOCUMENT
Essentially a document is a thing which provides evidence or information or serves as a record.
(R v MISIC)

WITH INTENT TO OBTAIN
(2x Intent)

PROPERTY
Real and 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.
OR
SERVICE
(Not defined)
OR
PECUNIARY 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
VALUABLE CONSIDERATION
Anything capable of being valuable consideration, whether of a monetary kind or of any other kind; in short, money or money’s worth.
(Hayes v R)

Question 3

Obtains by Deception

Answer 3

Section 240(1)(a) Crimes Act 1961

BY ANY DECEPTION

WITHOUT CLAIM OF RIGHT
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.

OBTAINS
In relation to any person, means obtain or retain for himself or herself or for any other person.

DIRECTLY
OR
INDIRECTLY

OWNERSHIP
OR
POSSESSION OF
OR
CONTROL OVER

PROPERTY
Real and 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.
OR
PRIVILEGE
OR
PECUNIARY 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
SERVICE
(Not defined)
OR
BENEFIT
OR
VALUABLE CONSIDERATION
Anything capable of being valuable consideration, whether of a monetary kind or of any other kind; in short, money or money’s worth.
(Hayes v R)