Definitions Flashcards
Intent to obtain
Uses a Document / Obtains by Deception
Defendant must intend to obtain and must intend to obtain by deception
Obtain
Uses a Document / Obtains by Deception
Obtain or retain for himself or herself or for any other person
Property
Uses a Document
Includes any 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
Service
Uses a Document / Obtains by Deception
Not defined in Crimes Act.
“Service is limited to financial or economic value and excludes privileges or benefits” (R v Cara)
Pecuniary advantage
Uses a Document / Obtains by Deception
“Anything that enhances the accused’s financial position.” (Hayes v R)
Valuable consideration
Uses a Document / Obtains by Deception
“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)
Examples:
- Monetary payment in returns for goods/services
- Goods given in return for services provides
- Issuing a false invoice to receive payment for goods never supplied
Dishonestly
Uses a Document
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
Claim of right
Uses a Document / Obtains by Deception
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.
Nature of belief required (claim of right)
Uses a Document / Obtains by Deception
1) Belief in a proprietary or possessory right in the property
2) Belief must be about the rights to the property in which the offence is alleged to have been committed
3) Belief must be held at the time of the offence
4) Belief must be held by the defendant
Takes / obtains
Uses a Document
Theft is committed by a taking when the offender moves the property or causes it to be moved
Document
Uses a Document / Obtains by Deception
Short answer: A thing which provides evidence or information or serves as a record.
(a) Any paper or other material used for writing or printing that is marked with matter capable of being read
(b) Any photograph, photographic negative, plate, slide, film, microfilm or any photostatic negative
(c) Any disc, tape, wire, soundtrack, card, or other material or device in or on which information, sounds, or other data are recorded, stored or embodied
(d) Any material by means of which information is supplied to any device used for recording, storing or processing information
(e) Any material derived from information recorded or stored or processed by any device used for recording or storing or processing information
Uses or attempts to use (prosecution must prove)
Uses a Document
Prosecution must prove that the offender used (or attempted to use) the document with the intent to obtain the property, service.. etc
Attempts
Uses a Document
Having an intent to commit an offence
Does or omits an act
For the purpose of completing his object
(sufficiently proximate)
Deception
Obtains by Deception
(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
(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
Representation
Obtains by Deception
Not defined.
Examples: past/present/future event, existing intention, opinion, belief, knowledge or other state of mind.
It must be capable of being false so it must contain a proposition of fact.
False representation
Obtains by Deception
Absolute certainty is not required and wilful blindness as to falsity of the statement will suffice.
The representation must be false and the defendant must know or be reckless as to its falsity
False representation - what you must prove (3)
Obtains by Deception
(1) There was an intent to deceive
(2) There was a representation by the defendat
(3) That the representation was false, and that the defendant either:
(i) knew it to be false in material particular, or
(ii) was reckless whether it was false in material particular
Intent to deceive
Obtains by Deception
The deception must be made or used by the defendant for the purpose of deceiving their victim, or in the knowledge that the victim is virtually certain to be deceived.
No offence is committed unless there is an intent to deceive.
Intent
Obtains by Deception
Doing a specific act (actus reus) with intent to achieve a specific result (mens rea)
Orally - words spoken
Conduct - representing oneself to be something they are not
Documentary - presenting a false document
Silence
Obtains by Deception
As a general rule, silence or non-disclosure will not be regarded as a false representation.
Exception: where an incorrect understanding is implied from a course of dealing where the defendant has failed to negate that incorrect understanding e.g. “label swapping”
Material particular
Obtains by Deception
“Important, essential or relevant detail or item”. Something that is relevant or matters.
Omission
Obtains by Deception
An inaction - not acting. Conscious decision not to do something or not giving thought to the matter at all.
Fraudulent device, trick or stratagem etc
Obtains by Deception
Fraudulent = Dishonest in the traditional moral sense 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
Privilege or benefit
Obtains by Deception
“Special right or advantage”
Not limited to a pecuniary nature.
E.g. using another persons gym facilities, access to medical services
Ownership
Obtains by Deception
Ownership is synonymous with the concept of title - it is a legal right of ownership
Possession
Obtains by Deception
Having possession of something without having title (ownership) of it.
E.g. The purchase of goods with a valueless cheque
Obtained
Obtains by Deception
Goods are obtained if the goods come under their control, even though they may not have physical possession of them.
E.g. an agreement to send an item shall complete a transaction, the “obtaining” is complete at the time of posting
Possession
Obtains by Deception
Must satisfy both physical and mental element of possession.
Physical = Physical custody or control over the item in question and can be either “actual” or “potential”
Mental = Combination of knowledge that the person possesses the item in question and has an intention to possess the item
Special interest (Obtains by Deception)
If the person from whom the goods were obtained had some special interest in the goods, without having actual ownership of them
Special interest lien
Obtains by Deception
A lien is a right over another’s property to protect a debt charged on that property. This gives the person a special property or interest in the property.
Control
Obtains by Deception
To exercise authorative or dominating influence or command over it.
Defendant does not need to possess something in order to control it.
Debt
Obtains by Deception 240(1)(b)
Money owing from one person to another
Must be legally enforceable
Liability
Obtains by Deception 240(1)(b)
A legally enforceable financial obligation to pay, such as the cost of a meal
Credit
Obtains by Deception 240(1)(b)
Obligation on the debtor (person that owes money) to pay or repay, and the time given for them to do so by the creditor
Intangible thing - credit
Obtains by Deception 240(1)(b)
Credit is an intangible thing. Credit obtained must be in respect of a monetary obligation
Induces
Obtains by Deception 240(1)(c)
To persuade, bring about or give rise to
Causes
Obtains by Deception 240(1)(c)
The accused must cause the loss.
The defendant, or an act of the defendant, must be the substantial and operative cause of the delivery, execution (etc) of any document capable of deriving pecuniary advantage
Deliver
Obtains by Deception 240(1)(c)
To surrender up someone or something
Execute
Obtains by Deception 240(1)(c)
To put a course of action into effect
Endorse
Obtains by Deception 240(1)(c)
To write or sign on a document
Alter
Obtains by Deception 240(1)(c)
To change in character or composition
Accept
Obtains by Deception 240(1)(c)
To receive something
Thing
Obtains by Deception 240(1)(c)
Must be capable of being used to derive pecuniary advantage and must be tangible
Loss
Obtains by Deception 240(1)(d)
Cause financial detriment to the victim.
Loss must be in the nature of a direct loss (not indirect loss, such as loss of a bargain or anticipated future profits)
The person who suffers the loss does not necessarily have to be the person who was deceived.
False document
Essentially, a document must lie about itself and intend to pass it off as having been written by someone else.
For a document to be forged it must meet the definition of “false” and “document”
Material alteration
An alteration is material if it increases the value or negotiability of a document
Additions, insertions, deletions etc
Definitions in relation to altering/reproducing documents:
Alteration, conceal, destroy, reproduce
Alteration = Changed is some manner
Conceal = Hiding of a document, denial of its existence and the withholding of it in the face of a positive duty to produce it.
Destruction = To end the existence of it
Reproduction = Copy, representation, imitation
Benefit - in terms of s249(1)(a)
Meaning “any advantage”, not necessarily limited to financial or pecuniary advantage
Loss - in terms of s249
Person who suffers loss does not have to be aware of the loss at the time of the offence
