Definitions

Question 1

Define ‘Obtain’

Answer 1

Obtain, in relation to any person, means obtain or retain for himself or herself or any other person - CA61 s217

Question 2

Define ‘Intent to Obtain’

Answer 2

The defendant must:
- intend to obtain and
- must intend to obtain by deception

Question 3

Define ‘Property’

Answer 3

Property includes:
- 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.

CA61 s2

Question 4

Define ‘Service’

Answer 4

No definition in CA61

R v Cara - Service is limited to financial or economic value and excludes privileges or benefits

Question 5

Define ‘Pecuniary Advantage’

Answer 5

Basically means ‘economic or monetary advantage’

Hayes v R - A pecuniary advantage is “anything that enhances the accused financial position. It is that enhancement which constitutes the element of advantage”

Question 6

Define ‘Valuable Consideration’

Answer 6

Hayes v R - A valuable consideration is:
- anything capable of being valuable consideration,
- whether of a monetary kind or of any other kind
- in short, money or moneys worth

Question 7

Define ‘Dishonestly’

Answer 7

• Dishonestly, in relation to any 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

CA61 s217

Question 8

Define ‘Claim of Right’

Answer 8

Claim of right in relation to any act
- means a belief at the time of the act
- in a possessory or proprietary 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 9

Define ‘Deception’ in s240(2)(a) - (False Representation)

Answer 9

Deception means -
- a false representation,
- whether oral or documentary or by conduct
- where the person making the representation intends to deceive any other person and
– knows that it is false in a material particular or
– is reckless as to whether it is false in a material particular

Question 10

Define ‘Deception’ in s240(2)(b) - (Omission to disclose)

Answer 10

Deception means -
- an omission to disclose a material particular
- with intent to deceive any person
- in circumstances where there is a duty to disclose it

Question 11

Define ‘Deception’ in s240(2)(c) - (Fraudulent STD)

Answer 11

Deception means
- a fraudulent device, trick or stratagem
- used with intent to deceive any person

Question 12

Define ‘takes’

Answer 12

Referring to CA61 s219(4) for tangible property, theft is committed by a taking when the offender moves the property or causes it to be moved

Question 13

Define ‘representation’

Answer 13

Simester & Brookbanks suggest ‘It must be capable of being false so it must contain a proposition of fact’

Question 14

Define ‘Omission’

Answer 14

• Omission is inaction i.e. not acting.
• Can be conscious decision not to do something or not giving thought to the matter at all.

Question 15

Define ‘Device’ (PST)

Answer 15

A ‘plan, scheme or trick’

Question 16

Define ‘Trick’ (FOD)

Answer 16

An action or scheme undertaken to fool, outwit or deceive

Question 17

Define ‘Strategem’

Answer 17

A cunning plan or scheme especially for deceiving an enemy or trickery

Question 18

Define ‘privilege’ and ‘benefit’

Answer 18

• the words privilege and benefit are not limited to a pecuniary nature.
• Both of these words mean a ‘special right or advantage’

Question 19

Define ‘control’

Answer 19

To “control” something means to exercise authoritative or dominating influence or command over it.

Question 20

Define ‘debt’

Answer 20

Debt means money owing from one person to another
- The debt must be legally enforcable

Question 21

Define ‘liability’

Answer 21

Liability means a legally enforceable financial obligation to pay, such as the cost of a meal

Question 22

Define ‘credit’

Answer 22

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

Question 23

Define ‘induces’

Answer 23

induces means to persuade, bring about or give rise to - oxford dictionary

Question 24

Define ‘deliver over’

Answer 24

to surrender up someone or something

Question 25

define ‘execute’

Answer 25

to put a course of action in effect

Question 26

define ‘endorse’

Answer 26

is to write or sign on a document

Question 27

define ‘alter’

Answer 27

is to change in character or composition, typically in a comparatively small but significant way

Question 28

define ‘accept’

Answer 28

to receive something

Question 29

define ‘thing’

Answer 29

Simester and Brookbanks defines thing as a broad and encompassing concept. However it appears that the thing must be tangible.

Question 30

define ‘title’

Answer 30

a right or claim to the ownership of property - oxford dictionary

Question 31

define ‘access’ in relation to a computer system

Answer 31

means instruct, communicate with, store data in, receive data from, or otherwise make use of any of the resources of the computer system

Question 32

define ‘authorisation’ in relation to a computer system

Answer 32

includes an authorisation conferred on a person by or under an enactment or a rule of law or by an order of a court or a judicial process

Question 33

define ‘computer system’

Answer 33

means:
- a computer or
- 2 or more interconnected computers
- any communication links between computers or to remote terminals or another device or
- 2 or more interconnected computers combined with any communication links between computers or to remote terminals or any other device and
- includes any part of the items described in paragraph (a) and all related input, output, processing, storage, software or communication facilities and stored data

Question 34

define attempt CA61 s72(1)

Answer 34

• Everyone who having an intent to commit an offence
• does or omits an act for the purpose of accomplishing his or her object
• is guilty of an attempt to commit the offence intended
• whether in circumstances it was possible to commit the offence or not

Question 35

define attempt CA61 s72(2) - Question of law

Answer 35

• The question whether an act done or omitted
• with intent to commit an offence
• is or is not only preparation for the commission of that offence, and
• too remote to constitute an attempt to commit it,
• is a question of law.

Question 36

define attempt CA61 72(3) - Proximately or immediately

Answer 36

• An act done or ommitted
• with intent to commit an offence
• may constitute an attempt
• if it is immediately or proximately connected with the intended offence
• whether or not there was any act unequivocally showing the intent to commit that offence.

Question 37

define ‘propensity evidence’ EA06 s40(1)(a)

Answer 37

Propensity evidence means
- evidence that tends to show a persons propensity to act in a particular way or have a particular state of mind
- being evidence of act, omissions, events and circumstances with which a person is alleged to have been involved

Question 38

define ‘propensity evidence does not include’ EA06 s40(1)(b)

Answer 38

Propensity evidence does not include evidence of an act or omission that is:
- one of the elements of the offence for which the person is being tried or
- the cause of action in the civil proceeding in question

Question 39

define ‘probative value in relation to propensity evidence’ EA06 s43(1)

Answer 39

The prosecution may offer propensity evidence about a defendant in a criminal proceeding only
- if the evidence has a probative value
- in relation to an issue in dispute in the proceeding
- which outweighs the risk that the evidence
- may have an unfairly prejudicial effect on the defendant

Question 40

Considerations when the judge is assessing probative value of propensity evidence UNFAST

Answer 40

• Frequency of the acts, omissions, circumstances and events
• connection in time between AOCE and the AOCE which constitute the offence being tried
• Extent of the similarity between AOCE and AOCE which constiture the offence being tried.
• Number of persons making allegations against the defendant that the same as or are similair to the offence being tried
• Whether the allegations may be the result of collusion or suggestability
• The extent to which the AOCE are unusual.

Question 41

What are the two core elements of theft by person in special relationship?

Answer 41

• that he or she have received property
• on terms or in circumstances affect what the defendant
  – may do with the property or its proceeds or
  – require the defendant to at in accordance with the requirement of another person.
  AND
• the defendant intentionally departed from the relevant obligation