Module 8: Deception Flashcards
What is required to prove false representation?
- Intent to deceive
- Representation by defendant
- The representation was false and the defendant either:
- knew it was false
- was reckless as to whether it was fasle
When can goods be said to have been obtained by a defendant?
Obtain or retain for himself or another
Representation can be made in three ways, or a combination of three ways. What are these?
Orally, documentary, or by conduct.
What are the differences between obtain property by deception and theft with regard to possession?
An important distinction between the two is that in theft the property is obtained without the owners permission and title is not passed on.
Under what circumstances does a person keep title of goods if they have fraudulently induced another to hand over goods with the intention that title will pass?
A person can keep goods fraudulently obtained when: Section 246(4) is an exception to the rule that you cannot get a better title than the seller. If the original purchaser subsequently sells the goods to an innocent buyer then the title has been made legal.
How can you avoid title?
1: Communication to B. The taking of all possible steps to bring it to B’s notice, eg by writing a letter, phone call etc.
2: By advising the police that the item was obtained by fraud.
When is forgery complete?
Forgery is complete as soon as the document is made with the intent described in subsection (1) of section 256 or with knowledge and intent described in subsection (2).
What was held in R v Harney in relation to recklessness?
Recklessness involves foresight of dangerous consequences that could well happen, together with an intention to continue the course of conduct regardless of the risk.
Define the term access under Section 248?
The access in relation to any computer system, means instruct, communicate with, store data in, receive from, or otherwise make use of any of the resources of the computer system.
Explain what actions would involve accessing a computer system?
Access requires the person instructing or communicating with the computer system has some form of connection with the computer system through which instructions or communications may pass.
What intent must be prove for Accessing a computer system for dishonest purposes under section 249(2)?
(a) obtained any property, privilege, service, pecuniary advantage, benefit, valuable consideration or;
(b) cause loss to any person
Explain the differences between Section 249(1) and 249(2)?
1 - is directed at the situation where a person has actually accessed a computer system, obtains the offending material or causes loss to any person.
2 - is directed at someone who actually accesses the computer system with that intent regardless of the result
Describe a situation where a person may not be physically present at a computer to access it?
A person may gain access to it via software that remotely infects computers.
What is Police v Dronjak?
Told the label price, went through checkout and cheaper price was scanned, stayed silent.
By maintaining silence in the face of a mistake known to him and by deliberately refraining from drawing the checkout assistants attention to the mistake, he had obtained it by false pretense.
How can knowledge be established? (deception)
- admission
- implication from the circumstances surrounding the event
- propensity evidence
What must the prosecution prove about the representation? (deception)
it was false in a material particular or was reckless as to its falsity. Absolute certainty is not required.
What is material particular?
An important, essential or relevant detail or item.
What is the subjective / objective test? (deception)
- Subjective is the internal reasons why someone did something
- Objective is the test of a reasonable person.
Examples of a service or benefit?
Using another person gym membership card.
What is special interest lien?
The defendant was the owner of a motor vehicle being repaired by a garage. The garage owner proprietor placed a lien over the vehicle until payment pf the debt was made.
The effect of this was to permit him to retain the possession of the car and gave him a special property or interest in the vehicle.
If a dishonest item is in someones home do they have control over it?
It is insufficient that the defendant dishonestly obtained property was found at the premises of which the defendant had control. It must be proved that the defendant did in fact exercise some control over the particular property.
What are 4 examples of a pecuniary advantage?
Cash from stolen goods.
Clothing obtained by a credit or eftpos card.
A discount
Avoiding or deferring payment of a debt
If a contract for debt or liability is void or illegal is there an offence of obtaining credit by deception?
No, contract must be legally enforceable.
What is the extended definition of obtains? And 3 examples.
That the defendant obtained the extension of credit to another person.
- obtaining money on a loan
- extending existing overdraft facilities.
- renting or leasing a dwelling
What is continuing representation?
Where the representation has a continuing effect, like ordering a meal in a restaurant would usually be a representation that one will follow the normal practice and pay for the meal at the end, if during the course of the meal the diner decides to avoid payment, the continuing representation of an intention to pay will become false and any subsequent obtaining of food will come within 240.
Intent to deceive is not disclosed merely because there is?
- delay or non-payment of the debt
- an inability` to perform a bona fide intent.
What is credit?
money owing with a period of time to pay
When is title obtained?
when the innocent reciever is given title where the property was obtained by deception but has not been voided by the decieved owner
What must exist in relation to Debt and Liability in Deception
must be legally enforceable
