Must Knows

Question 1

What must be proven in relation to a false representation?

Answer 1

• That there was an intent to deceive
• That there was a representation by the defendant
• That the representation was false; and that the defendant either:
  
  • knew it to be false in a material particular OR
  • was reckless as to whether it was false in a material particular

Question 2

In relation to false representations, describe what is meant by a “continuing effect” and provide an example.

Answer 2

In many cases, a representation by words or conduct may have a continuing effect. This describes situations where a representation which has been made is perceived as such across a period of time.

For example, entering a restaurant and ordering dinner represents that the diner will follow the normal practice and pay for the meal.

If during the course of dinner, the diner decides to avoid that payment, the continuing representation will become false, and the obtaining of food will come within section 240.

Question 3

What is propensity evidence?

Answer 3

Evidence showing a person has a propensity to act in a certain way or to have a particular state of mind may be admissible in a prosecution for causing loss by deception.

Propensity evidence may also be used to disprove a defence of mistake or innocent intention.

Question 4

When may the prosecution offer propensity evidence about a defendant in a criminal proceeding?

Answer 4

Only if the evidence has a probative value in relation to an issue in dispute in the proceeding which outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant.

Question 5

When assessing the probative value of propensity evidence, what may the Judge take into account? (Give examples)

Answer 5

In relation to the acts, omissions, events or circumstances which are the subject of the evidence:
- The frequency with which they occurred.
- The connection in time between them.
- The extent of the similarity between them.
- The number of persons making allegations against the defendant that are the same as, or are similar to, the subject of the alleged offence.
- Whether the allegations may be the result of collusion or suggestibility
- The extent to which the acts, omissions, events or circumstances of the alleged offence are unusual.

Question 6

Discuss the relevance of timing in relation to an intention to deceive

Answer 6

The intention to deceive is essential and must exist at the time when the deception is perpetrated. So when the credit is obtained, a later decision not to pay is insufficient.

In R v McKay, the defendant booked into a motel and offered to pay in advance, but was told to pay in the morning when leaving - but subsequently left without paying.

E.g. in relation to meals at a restaurant, in order to convict the offender you must prove that they had an intent to deceive when they either entered the restaurant or started their meal.

Question 7

Discuss withheld payment as it may relate to an intention to deceive

Answer 7

Intention to deceive does not exist where payment is withheld because of a genuine dissatisfaction with the service.

For example, where payment of the cost of a meal is refused because of the quality of the food (made prior to the meal being wholly consumed).

Question 8

Outline the four beliefs required in relation to claim of right

Answer 8

1. The belief must be a belief in a proprietary or possessory right in property.
2. The belief must be about the rights to the “property in relation to which the offence is alleged to have been commited.”
3. The belief must be held at the time of the conduct alleged to constitute the offence.
4. The belief must be actually held by the defendant. There is no requirement that the belief be reasonable or reasonably held and may be based on ignorance or mistake.

Question 9

What was held in R v Laverty?

Answer 9

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.