Obtain by deception

Question 1

What are the elements for obtaining by deception or causing loss by deception?

Answer 1

• by any deception
• without claim of right
• obtains
• ownership
• or*
• possession of
• or*
• control over
• any property,
• any privilage
• service
• pecunairy advantage
• benefit
• valuable consideration,

directly or indirectly

Question 2

What section is Obtaining by Deception or causing loss by Deception?

Answer 2

Section 240(1)(a) Crimes Act 1961.

Question 3

What does deception mean when discussed in Section 240(1)(a) Crimes Act 1961?

Answer 3

(2) In this section, 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 particular,
(ii) is reckless as to whether it is false in a material particular, or
(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

Question 4

R V MORLEY

Answer 4

An intention to deceive requires that the deception is practised in order to deceive the affected party.

Purposeful intent is necessary and must exist at the time of the deception.

Question 5

Explain:

‘Obtains’

Answer 5

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

Property may be obtained if a deception made to one person means that the property is then actually obtained from another person, provided that the deception operated on the mind of the person giving up the property.

Question 6

Explain:

‘Control over’

Answer 6

The power of directing, command.

the defendant does not need physical control of something to control it.

Question 7

Explain:

Privilage / benefit

Answer 7

The words “privilage” or “benefit” are not limited to a privilage or benefit of a percuniary nature. Both of these words mean a “special right or advantage.”

Question 8

Obtaining by deception or causing loss by deception

What are the elements of section 240(1)(b) Crimes Act 1961

Answer 8

• By any deception
• Without claim of right
• In incurring any debt or liability
• Obtains credit

Question 9

Explain:

Debt

and

Liability incurred

Answer 9

Debt - means money owing from one person to another.

Libility - means a legally enforceable finanical obligation to pay. (for eg. for the cost of a meal).

Question 10

Explain what is written in:

SIMESTER AND BROOKBANKS, PRINCIPLES OF CRIMINAL LAW, 4TH ED 2012

Regarding debt and liabilty….

Answer 10

The debt or liablilty must be legally enforceable. This means that if the contract is void or illegal there will be no offence.

Question 11

When discussing the element ‘obtains credit’…

What does ‘credit’ refer to?

Answer 11

Refers to the obligation on the debtor to pay or repay, and the time given fro them to do so by the creditor.

Credit is an tangible thing, credit obtained must be in respect of a monetary obligation.

Question 12

Obtains by deception or causes loss by deception

What are the elements of Section 240(1)(c) Crimes Act 1961?

Answer 12

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

Question 13

What are the key differences between the following:

Section 240(1)(a)

Section 240(1)(b)

Section 240 (1)(c)

Section 240 (1)(d)

In relation to Obtains by deception or causes loss by deception

Answer 13

(a) - Obtains by deception, without claim of right, ownership / control / posession, property / privilage / benefit / pecuinary advantage
(b) - obtains by deception, without claim of right, incurring debt / liability, obtain credit
(c) - obtains by deception, without claim of right, document
(d) - by any deception, without claim of right, causes loss to any other person (causing loss to another person, although no gain occurs)

Question 14

What are the elemements of:

Section 240(1)(d) Crimes Act 1961

Answer 14

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

Question 15

Obtaining by deception or causing loss by deception

What is meant by ‘loss’?

Answer 15

The term loss in most cases will involve finicial detriment to the victim.

Question 16

Explain:

MORLEY V R

Answer 16

“the loss alleged by the victim must have been induced by, or caused in reliance, upon deception. but the deception need not be the only operation factor, so long as it played a material part in occasioning the loss.”

Question 17

What must the prosecution prove in relation to obtains by deception / causing loss by deception, when discussing section 240(1)(c) - ‘to any other person’?

Answer 17

To any other person

the prosectuion must prove:

• the loss was caused by deception
• it was reasonably foreseeable some more than trivial loss would occur, but not need prove the loss was intentionally caused

Thus, there must be loss to “any other person”, but there is no requirement that there be any benefit to anyone.