Definitions

Question 1

Obtain

Answer 1

Obtain, in relation to any person, means obtain or retain for himself or herself or for any other person.

Question 2

Property

Answer 2

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.

Question 3

Service

Answer 3

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”.

Question 4

Pecuniary Advantage

Answer 4

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.”

Question 5

Valuable Consideration

Answer 5

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”.

Question 6

Dishonestly

Answer 6

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.

Question 7

(Without) Claim of Right

Answer 7

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.

Question 8

Takes or obtains

Answer 8

“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.

Question 9

Document

Answer 9

Per R v Misic,
“Essentially a document is a thing which provides evidence or information or serves as a record.”

Question 10

Uses or attempts to use

Answer 10

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.

Question 11

Attempts

Answer 11

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.

Question 12

Deception

Answer 12

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.

Question 13

Representation

Answer 13

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.

Question 14

False Representation (What must be proven)

Answer 14

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.

Question 15

Knowledge

Answer 15

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

Question 16

False in a material particular

Answer 16

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.

Question 17

Omission

Answer 17

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.

Question 18

Duty to disclose

Answer 18

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.

Question 19

Fraudulent device, trick, or strategem etc.

Answer 19

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.

Question 20

Privilege or Benefit

Answer 20

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.

Question 21

Ownership

Answer 21

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.

Question 22

Ideal Possession (Two Elements)

Answer 22

R v Cox - physical (actual or potential custody or control) and mental element (knowledge that thing in possession and intention to exercise possession)

Question 23

Special Interest (What is necessary to prove it)

Answer 23

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.

Question 24

Special Interest Lien

Answer 24

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).

Question 25

Debt or liability

Answer 25

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.

Question 26

Credit

Answer 26

Refers to the obligation on the debtor to pay or repay, and the time given for them to do so by the creditor.

Question 27

Intangible Thing

Answer 27

Credit is an intangible thing. Credit obtained must be in respect of a monetary obligation.

Question 28

Induces

Answer 28

“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.

Question 29

Deliver over, execute, make, accept, endorse, destroy or alter

Answer 29

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