Definitions Flashcards
Obtain
S217 CA 1961:
Obtain: in relation to any person, means obtain or retain for himself or herself or for any other person.
Property
S2 - CA 1961:
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.
Service
Not defined in the CA.
“Service is limited to financial or economic value and excludes privileges or benefits”
Pecuniary advantage
Hayes V R:
A pecuniary advantage is “anything that enhances the accused’s financial position. It is an enhancement which constitutes the element of advantage.”
- example = teacher with broken neck continues to claim ACC
Valuable consideration
HAYES V R
A valuable consideration is anything capable of being a valuable consideration, whether of a monetary kind or of any other kind; in short, money or money’s worth.
Wider scope than pecuniary advantage
Dishonestly
S217 CA 1961
Dishonestly, in relation to an act or omission, means done or omitted without a belief that there was express or implied consent, or authority for, the act or omission from a person entitled to give such consent or authority.
NOTE: belief does not have to be correct nor does it have to be reasonable, it must merely be an honest one.
Dishonestly (case law for belief)
HAYES V R
The question is whether the belief is actually held, not whether that belief is reasonable. However, reasonableness may be relevant as evidence on the issue whether the belief was actually held.
Claim of Right
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 tat belief may be based on ignorance or mistake of factor of any matter of law other than the enactment against which the offence is alleged to have been committed.
Takes
S219 CA (theft):
For tangible property - theft is committed by a taking when the offender moves the property or causes it to be moved.
Document
R V MISIC
Essentially a document is a thing which provides evidence or information or serves as a record.
- paper
-photograph
-disc,tape, wire, sound track, cars or other material
Attempts
S72 CA1961:
(1) Every one 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 the circumstances it was possible to commit the offence or not.
(2) 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.
(3) An act done or omitted 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.
Deception
240 (2) CA 1961:
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 a 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 in the Act)
Means: representation about a past or present fact, about a future event or about an existing intention, opinion, belief, knowledge or state of mind.
Simester & Brokbanks:
It must be capable of being false so it must contain a proposition of fact.
False Representation
Representation must be false and the defendant must know or believe that it is false in material particular, or be reckless whether it is false. - certainty is not required.
Separate misrepresentation should be included in a separate count.
False Representation
Representation must be false and the defendant must know or believe that it is false in material particular, or be reckless whether it is false. - certainty is not required.
Separate misrepresentation should be included in a separate count.
False representation- what is required to be proven:
- that there was intent to deceive
- that there was a representation by the defendant
-that’s the representation was false, and the defendant knew it was false in material particular or reckless whether it was false in a material particular
Intention to deceive - case law
R V MORLEY:
An intention to deceive requires that the deception is practiced in order to deceive the affected party. Purposeful intent is necessary and must exist at the time of the deception.
240(2) - recklessness
Must have intent for the deception.
Reckless only applies to the material particular.
Reckless - case law
CAMERON V R
Recklessness is established if:
a) the defendant recognised that there was a real possibility that:
I) his / her actions would bring about the proscribed result; and or
Ii) that the proscribed circumstances existed; and
B) having regard to that risk those actions were unreasonable
Intent
- intention to commit the act
- intention to get a specific result
Representation by the Defendant- case law:
R V MORLEY
Representations must relate to a statement of existing fact, rather than a statement of future intention.
Knowledge (regarding representation)
Prosecution must prove the defendant knew that the representation was false in material particular or was reckless.
Absolute Certainly is not required
Omission
Inaction - ie not acting.
Fraudulent
Dishonest in a 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 or trickery.
Privilege or benefit
Not restricted to pecuniary nature - both mean special right or advantage.
Difference between theft and deception
Theft - no transfer of ownership
Possession - Case law
R v Cox:
Possession involves two elements. The first, the physical element, is actual or potential physical custody or control. The second, the mental element is a combination of knowledge and intention, knowledge in the sense of an awareness by the accused that the substance is in his possession and an intention exercise possession.
Special Interest
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.
Control
Means to exercise authoritative or dominating influence or command over it.
Pecuniary advantage - examples
Means economic or monetary advantage:
-cash from stolen goods
-clothing or cash obtained by a credit or EFTPOS card
- a discount
-avoiding or deferring a payment
Debt
Money owing from one person to another.
Liability
Means a legally enforceable financial obligation to pay. Such as the cost of a meal.
Credit
Obligation on the debtor to pay or repay, and the time given for them to do so by the creditor.
Credit - timing of intention to deceive:
Case law
R V MCKAY
On appeal, it was held that the credit had been obtained on booking in that at that time they queue did not an intention to deceive .
note: intention must be held at the time of obtaining the credit
Induces
To persuade, bring about or give rise to.
Proof of inducement
- that the false representation was believed AND
-that it was the consequence of that belief that the victim parted with his or her money
Inducement - Case Law
R V LAVERTY
It is necessary for the prosecution to prove that the person parting with the property was induced to do so by the false representation made.
Causes
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 PA.
Deliver over:
Is to surrender up someone or some thing.
Execute
To put a course of action into effect
Endorse
Write or sign a document
Alter
To change in character or composition, typically in a comparatively small but significant way
Accept
Receive something
Loss
Must be a direct loss, not indirect such as anticipated future profits.
Propensity Rule
40 Propensity rule
(1)
In this section and sections 41 to 43, propensity evidence—
(a)
means evidence that tends to show a person’s propensity to act in a particular way or to have a particular state of mind, being evidence of acts, omissions, events, or circumstances with which a person is alleged to have been involved; but
(b)
does not include evidence of an act or omission that is—
(i)
one of the elements of the offence for which the person is being tried; or
(ii)
the cause of action in the civil proceeding in question.
(2)
A party may offer propensity evidence in a civil or criminal proceeding about any person.
(3)
However, propensity evidence about—
(a)
a defendant in a criminal proceeding may be offered only in accordance with section 41 or 42 or 43, whichever section is applicable; and
(b)
a complainant in a sexual case in relation to the complainant’s sexual experience, sexual disposition, or sexual reputation may be offered only in accordance with sections 44 to 44A.
(4)
Evidence that is solely or mainly relevant to veracity is governed by the veracity rules set out in section 37 and, accordingly, this section does not apply to evidence of that kind.
EA 06 - 43 Propensity evidence offered by prosecution about defendants
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.
(2)
When assessing the probative value of propensity evidence, the Judge must take into account the nature of the issue in dispute.
(3)
When assessing the probative value of propensity evidence, the Judge may consider, among other matters, the following:
(a)
the frequency with which the acts, omissions, events, or circumstances that are the subject of the evidence have occurred:
(b)
the connection in time between the acts, omissions, events, or circumstances that are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried:
(c)
the extent of the similarity between the acts, omissions, events, or circumstances that are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried:
(d)
the number of persons making allegations against the defendant that are the same as, or are similar to, the subject of the offence for which the defendant is being tried:
(e)
whether the allegations described in paragraph (d) may be the result of collusion or suggestibility:
(f)
the extent to which the acts, omissions, events, or circumstances that are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried are unusual.
(4)
When assessing the prejudicial effect of evidence on the defendant, the Judge must consider, among any other matters,—
(a)
whether the evidence is likely to unfairly predispose the fact-finder against the defendant; and
(b)
whether the fact-finder will tend to give disproportionate weight in reaching a verdict to evidence of other acts or omissions.
S7 EA 06 - Relevant Evidence
Tendency to prove or disprove anything that is of consequence to the determination of the proceeding
Title
Oxford dictionary:
“A right or claim to the ownership to the ownership of the property”
