Liability 240(1)(a)

Question 1

Obtaining by Deception

Section and Penalty

Answer 1

Section 240(1)(a) Crimes Act 1961

3 Months / 1 Year / 7 Years

Question 2

Obtaining by Deception

Ingredients

Answer 2

.1 By any Deception

.2 Without claim of right

.3 Obtains ownership
OR
Possession of or control over

Any Property
OR
Any Privilege,

Service,

Pecuniary Advantage,

Benefit
OR
Valuable Consideration

Directly or Indirectly

Question 3

.1 By any Deception

Answer 3

Deception:

(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

(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.
Sec. 240(2), Crimes Act 1961

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False Representation:
- must be false and the defendant must know or believe that it is false in material particular
- be reckless whether it is false.
Absolute certainty is not required and wilful blindness as to the falsity of the statement will suffice.

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

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Intent to deceive:
Offender must know the representation is false and intend on the other person to act upon it as genuine.

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The intention to deceive requires that the deception be practiced in order to deceive the affected party. Purposeful intent must exist at the time of the deception.
R v Morley

Question 4

.2 Without claim of right

Answer 4

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 the fact or of any matter of law other than the enactment against which the offence is alleged to have been committed.
Sec 2, Crimes Act 1961

Question 5

.3 Obtains ownership
OR
Possession of or control over

Any Property
OR
Any Privilege,

Service,

Pecuniary Advantage,

Benefit
OR
Valuable Consideration

Directly or Indirectly

Answer 5

Obtain:
Means obtain or retain for himself or herself or any other person.
Sec. 217, Crimes Act 1961

Ownership:
Ownership is synonymous with the concept of title.

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OR

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Possession:
Involves two elements. Physical element is the actual or potential physical custody or control. Mental element is a combination of knowledge and intent. Knowledge in a sense of an aware by the accused that the substance is in his possession… and an intention to excise possession.
R v Cox

Possession:
Can be actual or potential.

Actual Possession:
When the thing in question is in a person’s physical custody or control.

Potential Possession:
When the person has the potential to have the thing in question in their control.

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Property:
Includes real or personal property, and 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.
Sec. 2, Crimes Act 1961

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Privilege or benefit - ‘special right or advantage’.

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Service:
Not defined in the Crimes Act 1961.

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Pecuniary advantage:
Basically means an ‘economic or monetary advantage’.

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

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Privilege or benefit - ‘special right or advantage’.

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A 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”.
Hayes v R