Obtain by deception offence Flashcards
Dishonestly taking or using a document (Elements)
Section 228(1)(a) Crimes Act 1961
- Dishonestly
- Without claim of right
- Takes or Obtains
- Any Document
- With intent to obtain any
- Property or Service or Pecuniary advantage or Valuable consideration
Dishonestly (Definition)
Done or omitted without a belief there was express or implied consent from a person entitled to give authority - Section 217 Crimes Act 1961
Belief (Case Law)
HAYES v R:
Whether the belief is actually held, not Whether that belief is
reasonable. However, reasonableness may be relevant as evidence on whether the belief was actually held
Claim of right (Definition)
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, - Section 2 Crimes Act
Obtain (Definition)
obtain or retain for himself or herself or any other person Section 217 Crimes Act 1961
Takes (Definition)
Theft is committed by taking when the offender moves the property or causes it to be moved - Section 219 Crimes Act 1961
Document (Definition)
A document or part of a document in any form any paper or material used for writing or printing that is marked with matter capable of being read - Section 217 Crimes Act 1961
Document (Case Law)
R v MISIC:
A thing which provides evidence or information or serves as a record
Intent (Definition)
Intention to commit an act and get a specific result
Intent (Case Law)
R v COLLISTER:
Circumstantial evidence in which the defendants intent maybe inferred can include; actions/words before, during or after the event. Surrounding circumstances or the act itself
Property (Definition)
Includes real and personal property and any estate or interest in any real or personal property - Section 2 Crimes Act
Service (Case Law)
R v CARA:
Limited to financial or economic value. Excludes privileges or benefits
Pecuniary advantage (Case Law)
HAYES v R:
Anything that enhances the accused’s financial position. It is that enhancement which constitutes the element of advantage
Valuable consideration (Case Law)
HAYES v R
Anything capable of being a valuable consideration. Money or money’s worth
Dishonestly taking or using a document - Use (Elements)
Section 228(1)(b) Crimes Act 1961
- Dishonestly
- Without claim of right
- Uses or Attempts to use
- Any Document
- With intent to obtain any
- Property or Service or Pecuniary advantage or Valuable consideration
Uses or attempts to use (Case Law)
HAYES v R:
Because the use does not have to be successful it may difficult to draw a line between use and attempted
Obtaining by deception or causing loss by deception (Elements)
Section 240(1)(a) Crimes Act 1961
- By any deception
- Without claim of right
- Obtains
- Ownership or Possession of or Control over
- Any property or Service or Pecuniary advantage or Benefit or Valuable consideration
- Directly or In-directly
What must be proved for Deception
- There was an intent to deceive
- There was a representation by the defendant
*The representation was false; and that the defendant either: knew it to be false in a material particular OR - was reckless whether it was false in a material particular
Deception (Definition)
A false representation where the person making the representation intends to deceive the other person; Knows it is false in material particular, Reckless whether it is false in material particular - Section 240 Crimes Act 1961
Deception Case Law
R v MORLEY
An intention to deceive requires that the deception is practised in order to deceive the affected party
Representation (Case Law)
R v MORLEY:
Representations must relate to a statement of existing fact, rather than a statement of future intention.
Possession (Case Law)
R v COX
The actual and potential custody or control and the combination of knowledge and intention in the sense the accused had the substance in his possession
Control over (Definition)
The power of directing, command. Do not need to possess something in order to control it
Privilege/Benefit (Definition)
Special right or advantage
Obtaining by deception or causing loss by deception - Debt (Elements)
Section 240(1)(b) Crimes Act 1961
- By any deception
- Without claim of right
- In incurring any debt or Liability
- Obtains credit
Debt (Definition)
Money owing from one person to another
Liability (Definition)
Legally enforceable financial obligation to pay
Obtain credit (Definition)
Must be in respect to a monetary obligation
Obtaining by deception or cause loss by deception - Loss (Elements)
Section 240(1)(d) Crimes Act 1961
- By any deception
- without claim of right
- Causes loss to any other person
Loss (Definition)
Will usually involve financial detriment to the victim
Loss (Case Law)
MORLEY v R
The loss must be induced by or caused in reliance upon the deception
Obtaining by Deception or causing loss by deception - Induce or Cause (Elements)
Crimes Act 1961 Section 240(1)(c)
- By any deception
- Without Claim of Right
- Induces or Causes
- Any other person
- To deliver over, execute, make, accept or alter any document or thing
- capable of being used to derive a pecuniary advantage
