Full liabilities

Question 1

Dishonestly Takes or Obtains Document

Answer 1

Dishonestly Takes or Obtains Document
Crimes Act 1961, Section 228(1)(a)
7 years

• With intent to obtain any property, service, pecuniary advantage, or valuable consideration
• dishonestly
• without claim of right
• takes or obtains
• any document

INTENT TO OBTAIN
The defendant must intend to obtain and he or she must intend to obtain by the deception.

Obtain
Obtain, in relation to any person, means obtain or retain for himself or herself or for any other person.

PROPERTY
Property includes real and personal property, and any estate or interest in any real or personal property, money, electricity, and any dept, and anything in action, and any other right or interest.

SERVICE
Service is limited to financial or economic value and excludes privileges or benefits.

PECUNIARY ADVANTAGE
Hayes v R
A pecuniary advantage is “anything that enhances the accused’s financial position. It is that enhancement which constitutes the element of advantage.”

VALUABLE CONSIDERATION
Valuable consideration is “anything capable of being valuable consideration, whether of a monetary kind or of any other kind; in short, money or money’s worth”.

DISHONESTLY
Dishonestly, in relation to an act or omission, 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.

Hayes v R
The question is whether the belief is actually held, not whether that belief is reasonable. However, reasonableness may be relevant as evidence on the issue of whether the belief was actually held.

WITHOUT CLAIM OF RIGHT
Claim of right, in relation to any act, means a belief at the time of the act in a proprietary or possessory right in 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 or of any matter of law other than the enactment against which the offence is alleged to have been committed.

TAKES
For tangible property, theft is committed by a taking when the offender moves the property or causes it to be moved.

DOCUMENT
R v Misic
“Essentially a document is a thing which provides evidence or information or serves as a record.”

Question 2

Dishonestly Uses or Attempts to Use Document

Answer 2

Dishonestly Uses or Attempts to Use Document
Crimes Act 1961, Section 228(1)(b)
7 years

• With intent to obtain any property, service, pecuniary advantage, or valuable consideration
• dishonestly
• without claim of right
• uses or attempts to use
• any document

INTENT TO OBTAIN
The defendant must intend to obtain and he or she must intend to obtain by the deception.

Obtain
Obtain, in relation to any person, means obtain or retain for himself or herself or for any other person.

PROPERTY
Property includes real and personal property, and any estate or interest in any real or personal property, money, electricity, and any dept, and anything in action, and any other right or interest.

SERVICE
Service is limited to financial or economic value and excludes privileges or benefits.

PECUNIARY ADVANTAGE
Hayes v R
A pecuniary advantage is “anything that enhances the accused’s financial position. It is that enhancement which constitutes the element of advantage.”

VALUABLE CONSIDERATION
Valuable consideration is “anything capable of being valuable consideration, whether of a monetary kind or of any other kind; in short, money or money’s worth”.

DISHONESTLY
Dishonestly, in relation to an act or omission, 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.

Hayes v R
The question is whether the belief is actually held, not whether that belief is reasonable. However, reasonableness may be relevant as evidence on the issue of whether the belief was actually held.

WITHOUT CLAIM OF RIGHT
Claim of right, in relation to any act, means a belief at the time of the act in a proprietary or possessory right in 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 or of any matter of law other than the enactment against which the offence is alleged to have been committed.

USE
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.”

ATTEMPT
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.

DOCUMENT
R v Misic
“Essentially a document is a thing which provides evidence or information or serves as a record.”

Question 3

Obtaining by Deception
(obtains any property)

Answer 3

Obtaining by Deception
Crimes Act 1961, Section 240(1)(a)

• By any deception
• without claim of right
• obtains ownership or possession of, or control over, any property, or any privilege, service, pecuniary advantage, benefit, or valuable consideration, directly or indirectly.

DECEPTION
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 particualar; or
(ii) is reckless as to whether it is false in a material particular; or
(b) an omission to dislose a material particular, with intent to deceive any person, in circumstances where there is duty to disclose it; or
(c) a fraudulent device, trick, or stratagem used with intent to deceive any person.

Representation
It must be capable of being false so it must contain a proposition of fact.

Must be proved:
- there was an intent to deceive
- there was a representation by the defendant
- the representation was false; and that the defendant either:
- knew it to be false in a material particular OR
- was reckless whether it was false in a material particular.

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

Recklessness
Cameron v R
Recklessness is established if:
(a) the defendant recognised that there was a real possibility that:
(i) his or her actions would bring about the proscribed result; and/or
(ii) that the proscribed circumstances existed; and
(b) having regard to that risk those actions were unreasonable.

Intent
In a criminal law context there are two specific types of intention in an offence, Firstly there must be an intention to commit the act and secondly, an intention to get a specific result.

Representation by the defendant
R v Morley
Representations ust relate to a statement of existing fact, rather than a statement of future intention.

Knowledge
Knowledge can be established by:
- an admission
- implication from the circumstances surrounding the event
- propensity evidence

False in a material particular
A matter will be a ‘material particular’ if it is something important or something that matters.

Omission
An omission is inaction, i.e. not acting. It can either be a conscious decision not to do something or not giving thought to the matter at all.

Duty to disclose
A duty to disclose will often originate in the civl law, for example where the parties are in a contractual relationship.

Fraudulent
Fraudulent means dishonest in the traditional moral sense.

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.

WITHOUT CLAIM OF RIGHT

OBTAINS

OWNERSHIP OR POSSESSION OF, OR CONTROL OVER
Ownership, possession or control may be directly or indirectly obtained.

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

Ownership
Ownership is synonymous with the concept of title. In certain instances a person parting with goods not only relinquishes possession to the other person, but also passes on a legal right of ownership.

Possession
One person often holds possession and ownership at the same time. However, ou can possess something without having title to it.

Ideal possession
R v Cox
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.

Control
To “control” something means to exercise authoritative or dominating influence or command over it.

PROPERTY

Question 4

Obtaining by Deception
(obtains credit)

Answer 4

Obtaining by Deception
Crimes Act 1961, Section 240(1)(b)

• By any deception
• without claim of right
• in incurring any debt or liability
• obtains credit.

DECEPTION
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 particualar; or
(ii) is reckless as to whether it is false in a material particular; or
(b) an omission to dislose a material particular, with intent to deceive any person, in circumstances where there is duty to disclose it; or
(c) a fraudulent device, trick, or stratagem used with intent to deceive any person.

Representation
It must be capable of being false so it must contain a proposition of fact.

Must be proved:
- there was an intent to deceive
- there was a representation by the defendant
- the representation was false; and that the defendant either:
- knew it to be false in a material particular OR
- was reckless whether it was false in a material particular.

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

Recklessness
Cameron v R
Recklessness is established if:
(a) the defendant recognised that there was a real possibility that:
(i) his or her actions would bring about the proscribed result; and/or
(ii) that the proscribed circumstances existed; and
(b) having regard to that risk those actions were unreasonable.

Intent
In a criminal law context there are two specific types of intention in an offence, Firstly there must be an intention to commit the act and secondly, an intention to get a specific result.

Representation by the defendant
R v Morley
Representations ust relate to a statement of existing fact, rather than a statement of future intention.

Knowledge
Knowledge can be established by:
- an admission
- implication from the circumstances surrounding the event
- propensity evidence

False in a material particular
A matter will be a ‘material particular’ if it is something important or something that matters.

Omission
An omission is inaction, i.e. not acting. It can either be a conscious decision not to do something or not giving thought to the matter at all.

Duty to disclose
A duty to disclose will often originate in the civl law, for example where the parties are in a contractual relationship.

Fraudulent
Fraudulent means dishonest in the traditional moral sense.

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.

WITHOUT CLAIM OF RIGHT

IN INCURRING ANY DEBT OR LIABILITY
The debt or liability must be legally enforceable.

‘Debt’ means money owing from one person to another.

‘Liability’ means a legally enforceable financial obligation to pay, such as the cost of a meal.

OBTAINS

CREDIT
Obligation to pay
FIsher v Raven
‘Credit’ refers to the obligation on the debtor to pay or repay, and the time given for them to do so by the creditor. Credit does not extend to an obligation to supply services or goods.

TIming of intention to deceive
R v McKay
On appeal it was held that the credit had been obtained on booking in but at that time the accused did not possess an intent to deceive.

Question 5

Obtaining by Deception
(induces or causes other person)

Answer 5

Obtaining by Deception
Crimes Act 1961, Section 240(1)(c)

• By any deception
• without claim of right
• induces or causes any other person to deliver over, execute, make, accept, endorse, destroy, or alter any document or thing capable of being used to derive a pecuniary advantage.

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 particualar; or
(ii) is reckless as to whether it is false in a material particular; or
(b) an omission to dislose a material particular, with intent to deceive any person, in circumstances where there is duty to disclose it; or
(c) a fraudulent device, trick, or stratagem used with intent to deceive any person.

Representation
It must be capable of being false so it must contain a proposition of fact.

Must be proved:
- there was an intent to deceive
- there was a representation by the defendant
- the representation was false; and that the defendant either:
- knew it to be false in a material particular OR
- was reckless whether it was false in a material particular.

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

Recklessness
Cameron v R
Recklessness is established if:
(a) the defendant recognised that there was a real possibility that:
(i) his or her actions would bring about the proscribed result; and/or
(ii) that the proscribed circumstances existed; and
(b) having regard to that risk those actions were unreasonable.

Intent
In a criminal law context there are two specific types of intention in an offence, Firstly there must be an intention to commit the act and secondly, an intention to get a specific result.

Representation by the defendant
R v Morley
Representations ust relate to a statement of existing fact, rather than a statement of future intention.

Knowledge
Knowledge can be established by:
- an admission
- implication from the circumstances surrounding the event
- propensity evidence

False in a material particular
A matter will be a ‘material particular’ if it is something important or something that matters.

Omission
An omission is inaction, i.e. not acting. It can either be a conscious decision not to do something or not giving thought to the matter at all.

Duty to disclose
A duty to disclose will often originate in the civl law, for example where the parties are in a contractual relationship.

Fraudulent
Fraudulent means dishonest in the traditional moral sense.

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.

WITHOUT CLAIM OF RIGHT

INDUCES
To persuade, bring about or give rise to.

R v Laverty
It is necessary for the prosecution to prove that the person parting with the property was induced to do so by the false representation made.

Question 6

Causing Loss by Deception

Answer 6

Causing Loss by Deception
Crimes Act 1961, Section 240(1)(d)

• By any deception
• without claim of right
• causes loss
• to any other person.