Formative 1 Deception prep Flashcards
What is the definition of ‘obtain’?
Obtain means to obtain or retain for himself or herself or for any other person.
What is the required factor with regard to an offender’s ‘intent to obtain’?
They must intend to obtain BY the deception.
What is the definition of ‘property’?
Property includes real and personal property, any estate or interest in any real or personal property, money, electricity and any debt, and any thing in action, and any other right or interest.
What are three examples of valuable consideration?
Gift voucher, cheque, stocks
What is the definition of ‘dishonestly’?
Acting without a belief that there was expressed or implied consent from a person entitled to give such consent or authority.
What is the definition of ‘claim of right’?
Claim of right means a belief at the time of the act in a proprietary or possessory right.
It must exist at the time of the act
It must relate to property involved in the offence.
It must be genuine and honest.
What is the definition of ‘taking’?
When the offender moves the property or causes it to be moved.
What is the short definition of a document?
A document or part of a document in any form. Can include paper, photograph, disc etc
What does R v Misic state regarding the definition of a document?
Essentially a document is a thing which provides evidence or information or serves as a record.
What is the CA1961 definition of attempts?
S72 CA 1961 (1) Everyone 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.
What is the CA1961 definition of deception?
S240(2) CA1961
(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.
What is false representation?
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.
What is an example of false representation by conduct?
Anna-Lise with her Red Cross bucket
Is silence or non-disclosure regarded as a representation? Are there any exceptions to this? Case law?
Generally not, however there can be exceptions, such as in R v Dronjak or Rao v Police.
What does Police v Dronjak state regarding maintaining silence? (Defendant allowed a cashier to charge a lower price shown on a second price tag on a car radio that he knew to be worth more than the price on that second tag)
By maintaining silence in the face of a mistake known to him and deliberately refraining from drawing the checkout assistant’s attention to the mistake, Dronjak had obtained title to the radio by a false pretence (deception).
What does Rao v Police state regarding false representation?
The defendant had removed price tags and replaced them with cheaper ones. Here the Court held the representation the appellant made was the representation inherent in his conduct that the price tickets on the articles handed to the checkout operator were the same tickets as those placed on the goods by the store. The appeal against a conviction for false pretences was dismissed by the High Court.
What must the prosecution prove regarding knowledge of a false representation on the part of the defendant?
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.
In what three ways can knowledge of a false pretence be established?
- An admission 2. Implication from the circumstances surrounding the event 3. Propensity evidence
What does it mean to act “recklessly”?
To act recklessly involves consciously and deliberately taking an unjustifiable risk.
What are the definitions of ‘device’, ‘trick’ and ‘stratagem’?
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.
When discussing a ‘privilege’ or ‘benefit’, are they limited to those of a pecuniary nature? Examples?
No. Some examples could be:
- Using another persons gym card to access.
- Access to medical services.
- Withdrawal of an assault charge.
- Reduction in sentence for offence.
What is the distinction between theft and obtaining by deception?
In theft, the property is obtained without the owner’s permission and title is not passed on.
AP Simester and WJ Brookbanks
Knowing means “knowing or correctly believing”. The defendant may believe something wrongly, but cannot ‘know’ something that is false. Application: guilty knowledge
R v Misic
(Misic = Misc. - the ‘misc’ folder on our computers with all our ‘miscellaneous’ documents on them)
Essentially a document is a thing which provides evidence or information or serves as a record Application: document
R v Cox
(Coxen in a rowing 8 - think of a coxen in a rowing 8 - steroids for the team are in the back but he knows where they are - they’re under his control and he has an intention to dish them out to the team before the race)
Possession involves two … elements. The first, often called the physical element, is actual or potential physical custody or control. The second, often described as 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.
Application: possession
Hayes v R
(Haaaaaay! Don’t USE my document!)
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 ingredient 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.
Application: uses a document (attempts)
R v Cara
(Cara sounds like a really good value for $ car eg, Nissan Cara)
Service is limited to financial or economic value, and excludes privileges or benefits. Application: service
Hayes v R
(Haaaaaaaaay! Look at all of my pecuniary advantage!)
A pecuniary advantage is, “anything that enhances the accused’s financial position. It is that enhancement which constitutes the element of advantage“.
Application: pecuniary advantage
Hayes v R
(Haaaaaaaay! I’m flush with valuable consideration!)
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”. Application: valuable consideration.
R v Morley
(My intent to deceive grows morely day by day)
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. Application: intent to deceive – deception
Simester and Brookbanks
The ‘thing‘ must be tangible and must be capable of being used to derive a pecuniary advantage.
Application: thing capable of being used to derive a pecuniary advantage
Simester and Brookbanks
The debt or liability must be legally enforceable. This means that if the contract is void or legal there will be no offence. Application: debt or liability
