Definitions Flashcards
Obtain
Obtain or retain for himself herself or any other person
Intent to obtain
The defendant must have intended to obtain, and he or she must intend to obtain by the deception
Service
Service is limited to financial or economic value and excludes privileges or benefits
R V CARA
Valuable consideration
Anything capable of being valuable consideration, whether of a monetary kind or any other kind.
In short - money or money’s worth
Hayes V R
A pecuniary advantage is anything that enhances the accused financial position.
It is that enhancement which constitutes the element of advantage
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
Hayes V R - reasonable
The question is whether the belief is actually held, not whether the belief is reasonable.
However, reasonableness may be relevant as evidence on the issue of whether the belief was actually held
Claim of right
In relation to any act, means a belief at the time of the act and a proprietary or possessory right in the property in relation to which the offence is alleged to have been committed,
Although that belief may be based on ignorance or mistake the 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 are taking when the offender moves the property or causes it to be moved
Document
Means a document, or part of the document, and any form and includes without limitation
– any paper or other material used for writing or printing that is marked with matter capable of being red or
– any photograph, or any photographic negative, plate, slide, film, or microfilm or any photostatic negative
- Any desk, type, wire, soundtrack, card, or other material or device in your on which information, sounds, or other data are recorded, stored with a temporary permanent, or embodied so as to be capable, with or without the aid of some other equipment of being reproduced
– any material by means of which
information is supplied, whether directly or by means of any equipment, to any device used for recording or storing or processing information
– any material delivered, with a directly or by means of any equipment, From information recorded or stored or processed by any device used or recorded or stored for processing information
R V MISIC
Essentially a document is a thing which provides evidence of information or serves as a record
Uses or attempts to use
– the prosecution must prove
That the offender used or attempted to use the document with intent to obtain the property, service, valuable consideration, pecuniary advantage or valuable consideration
Hayes V R
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 an attempt relates to the use not to the ultimate obtaining of the 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 an attempt
Deception defined
- A false representation, whether oral, documentary, or by conduct, where the person making the representation and tends to deceive any other person and
-Knows that it is false and a material particular or- As reckless as to whether it is false and a material particular or
- An omission To disclose a material particular, with intent to deceive any person, in circumstances where there is a duty to disclose it
- A fraudulent device, Trick, or stratagem used with intent to deceive any person
Representation
Examples have included representations about a past or present fact, about a future event, or about an existing intention, opinion, belief, knowledge or other state of mind.
Semester and Brookbank suggest “it must be capable of being false so it must contain a proposition of fact”
False representation
Under the current law, the representation must be false and the defendant must know or believe that it is false and a material particular, or be reckless whether it is false.
Absolute certainty is not required and wilful blindness as to falsity of the statement will suffice
False representation – what must you proof
- There was an intent to deceive
– there was a representation by the defendant
– so the representation was false and the defendant either- knew it to be false or are in a material particular or
- Was reckless whether it was false and a material particular
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
R V Morley - Representation
Must relate to a statement of existing facts, rather than a statement of future intention
Silence – are the waterfall
As a general rule silence or nondisclosure will be regarded as representation, but there are exceptions to this such as where an incorrect understanding is implied from a course of dealing and the defendant has failed to negate that incorrect understanding
Knowledge can be established by
– An admission
– implications from the circumstances surrounding the event
– propensity evidence
Material particular
- An important, essential or relevant detail or item.
- in RV Mallett it was held that a matter will be a material particular if it is something important or something that matters
Omission
An omission is an action, i.e. not acting.
It can either be a conscious decision not to do something or not giving thought to the matter at all
Duty to disclose
Along with showing an intent to deceive section 240(2)(b) requires that you show that there is some material particular that was not disclosed, that the defendant was under duty to disclose in the defendant failed to perform that duty
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 and enemy, or trickery
Privilege or benefit
Special right or advantage
Where the benefit does not involve money, there does not need to be a financial loss or injury to the person who has been defrauded
Goods are obtained by a defendant
If the good are under their control even though they may not have physical possession of them
Control
To exercise Authoritative or dominating influence or command over it
Pecuniary Advantage
Economic or monetary advantage
Credit
Refers to the obligations on a detour to pay or repay and the time given for them to do so by the creditor.
Credit does not extend to an obligation to supply service all goods
Timing of intention to deceive
The intention to deceive is essential and must exist at the time when the deception is perpetrated.
So when the credit is obtained, later decision to not repay is insufficient
R V MCKAY
An appeal it was held that the credit had been obtained On booking in but at that time the accused did not possess the intent to deceive
Payments withheld
Intent to deceive does not exist where payment is withheld because of genuine dissatisfaction of the service
