Definitions Flashcards
Obtain
Obtain, in relation to any person, means obtain or retain for himself or herself or for any other person.
Property
Property 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
Service is not defined within the CA 1961. The case of R v Cara directed that “Service is limited to financial or economic value and excludes privileges or benefits”.
Pecuniary Advantage
Per R v Hayes, pecuniary advantage is:
“anything that enhances the accused’s financial position. It is that enhancement which constitutes the element of advantage.”
Valuable Consideration
Per R v Hayes, a valuable consideration is:
“anything capable of being valuable consideration, whether of a monetary kind or of any other kind; in short, money or money’s worth”.
Dishonestly
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.
(Without) Claim of Right
Claim of right is defined by statute in section 2, CA 1961.
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 or obtains
“Taking” is not specifically defined by statute but can be read, for the purposes of this section, in conjunction with the definition of theft (section 219, CA 1961).
For tangible property, theft is committed by a taking when the offender moves the property or causes it to be moved.
Ownership, possession or control may be directly or indirectly obtained.
Document
Per R v Misic,
“Essentially a document is a thing which provides evidence or 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 the intent to obtain the property, service, valuable consideration, pecuniary advantage or valuable consideration.
Adams on Criminal Law details that “use” can include a single action, such as the handing over of a document to its intended recipient, or continuing use of a document.
See Hayes v R regarding attempts / unsuccessful use.
Attempts
Section 72, CA 1961 defines (rather than creates) an attempt that applies to all offences.
Section 72(1) - Every one who, having an intent to commit an offence, does or omits an act for the purpose of accomplishing his object, is guilty of an attempt to commit the offence intended, whether in the circumstances it was possible to commit the offence or not.
Deception
CA 1961 Section 240(2):
In this section, deception 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 false in a material particular; or
(ii) is reckless as to whether it is false in 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.
Representation
Not defined but includes representations about past or present fact, about a future event, or about an existing intention, opinion, belief, knowledge or other state of mind.
False Representation (What must be proven)
Under current law, the representation must be false and the defendant must know or believe that it is false in a material particular or be reckless as to whether it is false.
Absolute certainty is not required and wilful blindness as to falsity of the statement will suffice.
The falsity of the representation must be proved.
Knowledge
Per Simester and Brookbanks, knowing means “knowing or correctly believing. The defendant may believe something wrongly but cannot ‘know’ something that is false.”
Knowledge can be established by:
- An admission
- Implication from the circumstances surrounding the event
- Propensity evidence
False in a material particular
Prosecution must establish either that defendant knows or believes his representation is false in material particular or is reckless as to whether it is false.
Material particular is not defined by statute but can be given its usual meaning of an important, essential or relevant detail or item.
Omission
An omission is inaction, 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, s240(2)(b) requires you to show that there was some material particular that was not disclosed, that the defendant was under a duty to disclose and that the defendant failed to perform that duty.
Fraudulent device, trick, or strategem etc.
This provision introduces a general criminal offence of fraud and effectively covers any form of fraudulent conduct. The conduct must be accompanied by an intent to deceive.
The scheme or trick must be “fraudulent”, here meaning dishonest in the traditional moral sense.
This may range from simple trickery to more complex schemes.
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.
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’.
E.g. using another person’s gym membership to access gym facilities, access to medical services, withdrawal of an assault charge, reduction in sentence for an offence.
Where the benefit of privilege does not involve money, there does not need to be financial loss or injury to the person who has been defrauded.
Ownership
Ownership is synonymous with the concept of title.
In certain instances a person parting with goods not only relinquishes possession to the other person, but also passes on a legal right of ownership (title) to the goods.
Ideal Possession (Two Elements)
R v Cox - physical (actual or potential custody or control) and mental element (knowledge that thing in possession and intention to exercise possession)
Special Interest (What is necessary to prove it)
It is sufficient if the person from whom the goods were obtained had some special property or interest in the goods without having actual ownership of them.
Special Interest Lien
In general terms, a ‘lien’ is a right over another’s property to protect a debt charged on that property.
E.g. Defendant is owner of a vehicle being repaired by a garage. Garage proprietor placed a ‘lien’ over the vehicle until payment of debt was made. The effect of this was to permit him to retain possession of the car and gave him a ‘special property or interest in the vehicle’.
In R v Cox, Court held that owner of car who by false pretense induced garage proprietor to give up lien over vehicle and possession of car had obtained the vehicle by false pretense (term now replaced by obtained by deception).
Debt or liability
Debt means money owing from one person to another.
Liability means a legally enforceable financial obligation to pay, such as the cost of a meal.
Credit
Refers to the obligation on the debtor to pay or repay, and the time given for them to do so by the creditor.
Intangible Thing
Credit is an intangible thing. Credit obtained must be in respect of a monetary obligation.
Induces
“To persuade, bring about or give rise to.”
The scope of induced conduct is very wide. Another person must be induced or caused to “deliver over, execute, make, accept, endorse, destroy or alter” the document or thing.
Deliver over, execute, make, accept, endorse, destroy or alter
Deliver over - to surrender up someone or something
Execute - to put a course of action into effect
Accept - to receive something
Endorse - to write or sign on a document
Alter - to change in character or composition, typically in a comparatively small but significant way
