Definitions 2 Flashcards
Uses or attempts to use
Prosecution must prove…?
Adams on Criminal Law says…?
Hayes v R [2008]
Prosecution must prove that the offender used (or attempted to use) the document with the intent to obtain the property, service, valuable consideration or pecuniary advantage.
Adams on Criminal Law: “Use can include a single action, such as the handing over of a document to its intended recipient, or the continuing use of a document.”
HAYES v R: “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 attempt relates to use not to the ultimate obtaining of a 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 attempted use.”
S 72, Crimes Act 1961
(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.
(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
S 240(2), Crimes Act 1961
“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 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
Defined?
Simester & Brookbanks?
R v Morley?
Not defined. 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.
Simester & Brookbanks: “It must be capable of being false so it must contain a PROPOSITION of FACT.”
R v Morley: “Representations must relate to a statement of existing fact, rather than a statement of future intention.”
What makes a representation “false”?
The representation must be false and the defendant must know or believe that it is false in 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.
The falsity of the representation must be proved.
What is “intention to deceive?”
As per R v MORLEY [2010]
“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.”
Recklessness as per Cameron v R
Recklessness is established if:
(a) the defendant recognised that there was a real possibility that:
(i) their actions would bring about the proscribed result; AND/OR
(ii) those proscribed circumstances existed; AND
(b) having regard to that risk, those actions were unreasonable
Examples of Representation by…
- Oral
- Conduct
- Documentary
Oral: Verbally claiming to own goods that are in fact subject to a hire purchase agreement.
R v Caslin: Defendant obtained by a false pretence because the representations made by her was that she was a prostitute, prepared to prostitute her body and that she had a bedroom available for that purpose were false on that occasion.
Conduct: Representing oneself to be a collector for charity by appearing to be carrying an official collection bag.
R v Barnard: the defendant entered a shop in a university town wearing a cap and gown to convey he was a student and thus receive a student discount.
Documentary: Presenting a false certificate of qualification or completing a valueless cheque on an account in which there are no funds knowing the cheque will not be honoured.
Continuing Effect
E.g. entering a restaurant and ordering dinner represents that the diner will pay for the meal at the end.
If during the course of the meal the diner decides to avoid that payment, the continuing representation will become false. Obtaining the food then comes under S 240.
Silence
As a general rule, silence or non-disclosure will not be regarded as a representation, but there are exceptions such as where an incorrect understanding is implied from a course of dealing and the defendant has FAILED to NEGATE that INCORRECT UNDERSTANDING.
Exception for “label swapping.”
