Liability Summaries Flashcards
What definitions and/or case laws should be included in your discussion of the liability of:
- 228(1)(a) or 228(1)(b) - Dishonestly taking or using a document.
Definition of intent: 2 specific types of intent; the defendant must intend to obtain; and he or she must intend to obtain by the deception; R v Collister;
Definition of obtain: S217, CA61 - obtain means obtain or retain for himself or herself or for any other person;
Definition of property: S2, CA61;
Definition of service: R v Cara;
Definition of pecuniary advantage: Hayes v R;
Definition of valuable consideration: Hayes v R;
Definition of dishonestly: S217, CA61 - acting without a belief that there was express or implied consent from a person entitled to give such consent or authority; Hayes v R - the question is whether the belief is actually held;
Definition of without claim of right: S2, CA61;
Definition of takes or obtains: Takes - S219(4), CA61: when the offender moves the property or causes it to be moved; Obtains - S217, CA61;
Definition of uses or attempts to use: Use can include a single action, such as handing over a document to its intended recipient, or the continuing use of a document; Hayes v R; Attempts - CA61, S72;
Definition of document: S217, CA61; R v Misic;
Definition of a person/victim: person - S2 CA61 as proven by CE or JN; victim - S4 VRA 2002;
What definitions and/or case laws should be included in your discussion of:
Deception
Definition of 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.
Definition of representation: S&B - it must be capable of being false so it must contain a proposition of fact; R v Morley - representations must relate to statements of existing fact;
Intention to deceive: R v Morley - an intention to deceive requires that the deception is practiced;
Definition of knowledge: S&B - knowing means knowing or correctly believing; how knowledge can be established - admissions; implications from surrounding circumstances; propensity evidence;
Definition of material particular: an important, essential or relevant detail or item; R v Mallett - a matter will be a ‘material particular’ if it is something important or something that matters.
Definition of recklessness: Cameron v R; R v Tipple;
Definition of omission: 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;
Definition of duty to disclose: there was some material particular that was not disclosed, that the defendant was under a duty to disclose and that the defendant failed to perform that duty;
Definition of fraudulent: dishonest in the traditional moral sense;
Definition of device: a plan, scheme, or trick
Definition of trick: an action or scheme undertaken to fool, outwit, or deceive;
Stratagem: a cunning plan or scheme especially for deceiving an enemy, or trickery;
What definitions and/or case laws should be included in your discussion of the liability of:
- 240(1)(a) - Obtaining by deception or causing loss by deception
Definition of intent: 2 specific types of intent; the defendant must intend to obtain; and he or she must intend to obtain by the deception; R v Collister;
Definition of deception: CA61, S240(2); R v Morley; R v Mallet; S&B
Definition of WCOR: CA61, S2;
Definition of obtain: CA61, S2 - to obtain or retain for himself or herself or any other person;
Definition of ownership: a legal right to property (title);
Definition of possession: R v Cox - actual or potential physical custody or control;
Definition of control: to exercise authoritative or dominating influence of command over it.
Definition of property: CA61, S2;
Definition of privilege/benefit: a special right or advantage
Definition of service: R v Cara;
Definition of pecuniary advantage: Hayes v R;
Definition of valuable consideration: Hayes v R;
Definition of a person/victim: person - S2 CA61 as proven by CE or JN; victim - S4 VRA 2002;
What definitions and/or case laws should be included in your discussion of the liability of:
- 240(1)(b) - Obtaining credit by deception
Definition of intent: 2 specific types of intent; the defendant must intend to obtain; and he or she must intend to obtain by the deception; there must be an intent to deceive; R v Collister;
Definition of deception: CA61, S240(2); R v Morley; R v Mallet; S&B
Definition of WCOR: CA61, S2;
Definition of debt: money owing from one person to another
Definition of credit: Fisher v Raven - the obligation on the debtor to pay or repay and the time taken for them to do so by the creditor;
Debt or liability incurred: the debt or liability incurred must be legally enforceable. This means that if the contract is void or illegal there will be no offence.
Timing of intent 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;
Definition of a person/victim: person - S2 CA61 as proven by CE or JN; victim - S4 VRA 2002;
What definitions and/or case laws should be included in your discussion of the liability of:
- 240(1)(c) - altering documents capable of deriving pecuniary advantage
Definition of intent: 2 specific types of intent; the defendant must intend to obtain; and he or she must intend to obtain by the deception; there must be an intent to deceive; R v Collister;
Definition of deception: CA61; S240(2); R v Morley; R v Mallet; S&B
Definition of WCOR: CA61, S2;
Definition of induces: to persuade, bring about, or give rise to; R v Laverty - necessary to prove that the person parting with the property was induced to do so by the false representation made.
Definition of causes: - the accused must cause the loss.
Definition of a person/victim: person - S2 CA61 as proven by CE or JN; victim - S4 VRA 2002;
Definitions of:
Deliver over:
To surrender up someone or something;
Execute:
To put a course of action into effect;
Make:
To create or prepare something by combining materials or putting parts together;
Accept
To receive something;
Endorse
To write or sign on a document;
Destroy
To end the existence of;
Alter
To change in character or composition, typically in a comparatively small but significant way;
Definition of a document: CA61, S217; R v Misic; - “Essentially a document is a thing which provides evidence or information or serves as a record.”
Definition of a 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.”
Definition of a person/victim: person - S2 CA61 as proven by CE or JN; victim - S4 VRA 2002;
What definitions and/or case laws should be included in your discussion of the liability of:
- 240(1)(d) - causing loss by deception
Definition of intent: 2 specific types of intent; the defendant must intend to obtain; and he or she must intend to obtain by the deception; there must be an intent to deceive; R v Collister;
Definition of deception: CA61, S240(2); R v Morley; R v Mallet; S&B
Definition of WCOR: CA61, S2;
Definition of causes: the accused must cause the loss.
- *Definition of loss:** will involve financial detriment to the victim; the loss must be in the nature of a direct loss
- *R v Morley** - The loss alleged must have been induced by, or caused in reliance upon, the deception etc.
Definition of a person/victim: person - S2 CA61 as proven by CE or JN; victim - S4 VRA 2002; incorporates not only real people, but also companies and other organisations.
