Definitions 3

Question 1

Knowledge

• Prosecution must prove…?
• Knowledge can be established by…? (3)
• Simester & Brookbanks
• R v Crooks

Answer 1

Prosecution must prove that the defendant knew that the representation was FALSE in a MATERIAL PARTICULAR or was RECKLESS as to its falsity. Absolute certainty is not required.

Knowledge can be established by:

• an admission
• implication from surrounding circumstances
• propensity evidence.

Simester & Brookbanks: knowing means “knowing or correctly believing. The defendant may believe something wrongly but cannot “know” something that is false.”

R v Crooks: the accused may also be liable if their conduct has amounted to “wilful blindness” and is thus equated to knowledge (head in the sand).

Question 2

Material Particular
Defined?
R v Mallet?

Answer 2

“Material Particular” is not defined in Crimes Act. It can be given its usual meaning of an IMPORTANT, ESSENTIAL or RELEVANT detail or item.

A minor detail may amount to a material particular if it is of consequence to the facts of the case. The question of materiality will be assessed OBJECTIVELY.

R v MALLET: “A matter will be a material particular if it is SOMETHING IMPORTANT or SOMETHING THAT MATTERS.”

Question 3

Omission

Answer 3

Not defined.

Inaction or not acting. It can either be a conscious decision not to do something or not giving the matter thought at all.

Question 4

Duty to disclose

What must be shown under S 240(2)(b)? (3)

Answer 4

Show that:

• there was some material particular that was not disclosed.
• the defendant was under a duty to disclose
• the defendant failed to perform that duty.

Question 5

Fraudulent Device, Trick or Stratagem

Answer 5

Not defined in Crimes Act. As per Oxford Dictionary:

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.

Underlying each term are the concepts of DECEIT and DISHONESTY

Question 6

Obtaining ownership, possession or control

Distinction between theft and obtaining by deception?

Answer 6

Goods are “obtained” by a defendant if the goods come under their control, even though they may not have physical possession of them.

In theft, the property is obtained without the owner’s permission and title is not passed on.

Question 7

Possession as per R v Cox

Answer 7

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 to EXERCISE POSSESSION.

Question 8

Special Interest

Special Interest Lien

Answer 8

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.

Mechanic places a lien on a car being repaired until payment of the debt is made. The mechanic was permitted to retain possession of the car and had a “special property or interest in the vehicle.” The owner of the car induced the mechanic to give up his lien and possession of the vehicle under false pretences (obtain by deception).

Question 9

Control

Definition?
Prove actual possession?
Property found at defendant’s premises?

Answer 9

To exercise authoritative or dominating influence or command over something.

Prosecution does not need to prove that the accused was in actual possession of the property. It may be sufficient that the accused exercised control over the property through an agent.

It is insufficient that the dishonestly obtained property was found at the premises of which the defendant had control. It must be proved that the defendant did in fact exercise some control over the particular property.