Definitions and Concepts Flashcards
Obtain
Means to obtain or retain for himself, herself or some other person
Property
Property includes real and personal property, and any estate or interest in any real or personal property, money, electricity, and any other debt, and any thing in action, and any other right or interest.
Service
Service is limited to financial and economic value, and excludes privileges or benefits.
Pecuniary advantage
Anything that enhances the accused’s financial position. It is that enhancement which constitutes the elements of advantage.
Valuable consideration
A valuable consideration is anything capable of being a valuable consideration, whether of a monetary kind of of any other kind, in short money or moneys worth.
The scope of valuable consideration is wider than a pecuniary advantage.
Name 3 examples of valuable consideration
- Monetary payment in return for goods or services
- Goods given in return for services provided
- Issuing a false invoice to receive payment for goods not supplied
Dishonesty
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.
Claim or right
Means a belief at the time of the act in a proprietary or possessory right to the 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
Takes
As with theft. Takes is when the offender physical moves the property or causes it to be moved.
Uses
Can include a single action or the continuing use of a document.
Document
YOU DO NOT HAVE TO KNOW THIS IN FULL
Key words for elements explaining…
Means a document (or part of) in any form.
Paper or other material for writing or printing that is capable of being read.
Photograph, plate, slide, film, negative
Disc, tape, sound track, capable of being reproduced
used for recording, storing information
Attempts (key elements)
Intent to commit an offence
That they did, or omitted to do, something to achieve that end
That their act or omission was sufficiently close (proximate).
Deception
S240(2)
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.
False Representation
The representation should be false and the defendant must know or believe that it is false in a material particular or be reckless as to whether it was false.
Wilful blindness will suffice.
Representation
It must be capable of being false so it must contain a proposition of fact.
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
What is required to be proven for Deception?
1) That there was an intent to deceive
2) That there was a representation by the defendant
3) That the representation was false and that the defendant either
- knew it was false in a material particular or
- was reckless as to whether it was false in a material particular
Intent
In a criminal law context there are two specific types of intent. Firstly, there must be an intention to commit the act and secondly an intention to get a specific result.
Name examples of false representations (1x orally, 1x by conduct, 1x documentary)
ORALLY - verbally claiming to own goods that are subject to hire purchase agreement
BY CONDUCT - representing oneself to be a collector for a charity by carrying a collectors bucket
DOCUMENTARY - presenting a false certificate of qualification
How can you prove knowledge in deception cases in relation to false representations?
Knowledge can be established by
- an admission
- implication from circumstances of the event
- propensity evidence
Material particular
Material particular is not defined in the Crimes Act and 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.
Recklessness
Consciously and deliberately taking an unjustified risk that was unreasonable in the circumstances.
Omission
Failure to act, inaction
Duty to disclose
s240(2)(b) requires you to show that there was some material particular that was not disclosed and that the defendant was under a duty to disclose and failed to.
Device
a plan, scheme or trick
must be fraudulent and morally wrong
Trick
An action or scheme undertaken to fool, outwit or deceive.
must be fraudulent and morally wrong
Stratagem
A cunning plan or scheme especially for deceiving an enemy, or trickery.
(must be fraudulent and morally wrong)
Privilege or benefit
Not limited to a pecuniary nature. There does not need to be financial loss or injury to the person defrauded.
Examples of privilege or benefit under s240(1)(a)
1) using another persons gym membership card
2) access to medical services
3) withdrawal of an assault charge
4) reduction in sentence for an offence
What is the difference between theft and deception in terms of “title”?
Title is not passed on in theft, person obtains possession only.
Title is passed in deception albeit a voidable title, person obtains possession and voidable title.
Control
Means to exercise authoritative or dominating influence or command over it.