Definitions of Deception

Question 1

s240(2) CA61

Answer 1

Deception means;
1.FALSE REPRESENTATION, whether oral, 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
2. an omission to disclose a material particular, with intent to deceive any person, in circumstances where there is a duty to disclose it
3. A fraudulent device, trick, or strategy used with intent to deceive any person.

Question 2

False representation

Answer 2

Representation MUST be false and the Defendant MUST know or believe 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)

Question 3

What must be proved - false representation

Answer 3

1. That there was intent to deceive
2. That there was a representation by the Defendant
3. That the representation was false, and the Defendant either (a) knew it to be false in a material particular (b) was reckless as to whether it was false in a material particular.

Question 4

Intent to deceive (inc Morley & Cameron)

Answer 4

INTENT - Must be intent to commit the act and secondly, an intention to get a specific result.

Morley - Intention to deceive requires that the deception is practised in order to deceive the affected party. Purposeful intent in necessary and must exist at the time of the deception.

Cameron - Recklessness is established IF

(a) the Defendant recognised that there was a real possibility that their actions would bring about the proscribed result and/or
(b) having regard to that risk, those actions were unreasonable

Question 5

Representation by Defendant (Morley)

Answer 5

Representation must relate to a statement of existing fact, rather than a statement of future intention.

Question 6

Continuing Effect

Answer 6

Representation by words or conduct have a continuing effect - for example, when a person enters a restaurant with intention to pay for meal, but while eating the meal, they decide to avoid paying for it, then that person had obtained the food by deception.

Question 7

Silence / non-disclosure (s240(2)(b))

Answer 7

Generally, silence or non-disclosure is NOT a false representation .
Except when there is an incorrect understanding that is implied through Defendants course of action and this understanding is not corrected or not negated by Defendant. Ie. swapping price tags and presenting incorrect price tag to cashier.

Question 8

Knowledge

Answer 8

Prosecution MUST prove the Defendant KNEW that the representation was false in a material particular or was reckless as to whether it was false in a material particular. Absolute certainty is not required.

Question 9

Knowledge is established by

Answer 9

1. An admission
2. An implication from the circumstances surrounding the event
3. propensity evidence

Question 10

False in a material particular

Answer 10

An important, essential or relevant details or item

Question 11

Duty to disclose (s240(2)(b))

Answer 11

Along with intent to deceive - you MUST show that there was some material particular (important information) that was not disclosed, that the Defendant was under a duty to disclose AND the Defendant failed to perform that duty

Question 12

Fraudulent device, trick or stratagem (s240(2)(c))

Answer 12

Intent to deceive AND that fraudulent device, trick or stratagem was used.

Question 13

Device

Answer 13

a plan, scheme or trick

Question 14

Trick

Answer 14

an action or scheme undertaken to fool, outwit or deceive

Question 15

Stratagem

Answer 15

Cunning plan or scheme especially for deceiving an enemy or trickery.