Deception Section 240(2) CA61

Question 1

What is the definition of deception as per Section 240(2) Crimes Act 1961?

Answer 1

(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 and -
(ii) Is reckless as to whether it is false in a material particular

(b) An omission to disclose a material particular, with intent to deceive any person, in circumstances where there is a duty to disclose it
(c) A fraudulent device, trick, or stratagem used with intent to deceive any person

Question 2

What is required to prove a ‘false representation’ i.e deception?

Answer 2

You must prove:

• There was an intent to deceive
• There was a representation by the defendant
• That the representation was false and that the defendant either:
• Knew it to be false in a material particular

OR

• Was reckless as to whether it was false in a ,aterial particular

Question 3

Explain ‘representation’ and what ways may they be made. provide examples of each.

Answer 3

Representation is not defined.

“It must be capable of being false so it must contain a proposition of fact”

Representations may be made:

Orally (by spoken word) - eg Verbally claiming to own goods that are in fact subject to a hire purchase agreement

By Conduct - eg Representing oneself to be a collector for charity by appearing to be carrying an official collection bag

Documentary - eg Presenting a false certificate of qualification, or completing a valueless cheque on an account in which there are no funds knowing the cheque will not be honoured

Question 4

What is the case law that relates to representation by the defendant?

Answer 4

R v Morley

Representation must relate to a statement of existing fact, rather than a statement of future intention

Question 5

Explain knowledge as outlined by Simester and Brookbanks, and how might knowledge be established

Answer 5

Knowing means:
“knowing or correctly believing. The defendant may believe something wrongly, but cannot know something that is false”

Knowledge can be established by:

• Admissions
• Surrounding circumstances
• Propensity evidence

Wilful blindness is equated to knowledge

Question 6

What is a material particular?

Answer 6

Not defined in Crimes Act.
It can be given its usual meaning of an important, essential or relevant detail or item.

“A matter will be a material particular if it is something important or something that matters”

Question 7

Define the terms Device, Trick and stratagem as they relate to Section 240(1)(c)

Answer 7

Device - A plan, scheme or trick

Trick - An action or scheme undertaken to fool, outwit or deceive

Stratagem - A cunning plan or scheme especially for deceiving an enemy, or trickery

Question 8

In terms of S 240(2) there must be an intent to deceive. what is the relevant case law

Answer 8

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 9

In terms of S 240(2) there must be an element of recklessness. what is the relevant case law for recklessness

Answer 9

Cameron v R
Recklessness is established if:
(a) the defendant recognised that there was a real possibility that:
(i) His actions would bring about the proscribed result and / or
(ii) That the proscribed circumstances existed; and
(b) having regards to that risk those actions were unreasonable