Obtaining by Deception

Question 1

Obtaining by Deception - section and ingredients

Answer 1

Section 240(1)(a) of Crimes Act - 3months/1 year/7 years

1. by any deception
2. without claim of right
3. obtains possession of or control over any property or any privilege, service, pecuniary advantage, or benefit or valuable consideration

Question 2

What is “Deception” under section 240(2)

Answer 2

a) a false representation
- oral, documentary or conduct
- person making representation intends to deceive
any other person and knows its false in a material
particular or is reckless as to whether it is false
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 3

Without claim of right definition under section 2

Answer 3

In relation to any act 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
although that belief may be based on ignorance or mistake of fact or of any matter of law other than the enactment against which the offence is alleged to have been committed

Question 4

False representation

Answer 4

• must be false and the defendant must know or believe that it is false in a material particular
  OR
• be reckless as to whether it is false

Absolute certainty is not required and wilful blindness as to the falsity of the statement will suffice

Question 5

Intent to deceive

Answer 5

Offender must know representation is false and intend the other person to act upon it as genuine

Question 6

R v Morley on intention to deceive

Answer 6

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 7

R v Laverty on what prosecution is required to prove for deception

Answer 7

• that the person parting with the property was induced to do so by the false representation made

Question 8

Claim of right definition under section 2

Answer 8

In relation to any act 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
although that belief may be based on ignorance or mistake of fact or of any matter of law other than the enactment against which the offence is alleged to have been committed

Question 9

Obtains means to what

Answer 9

To obtain or retain for self or another

Question 10

What is actual possession

Answer 10

Actual possession arises where the thing in question is in a person’s physical custody, it is on or about their person or immediately at hand

Question 11

What is ideal possession and what case was this definition given

Answer 11

Ideal possession is

• complete physical control
• knowledge of existence/situation/qualities

Warner v Metropolitan Police Commissioner

Question 12

What is constructive posession

Answer 12

Constructive possession arises when something is not in a persons physical custody but they have ready access to it or can exercise control over it

Question 13

Property definition under section 2

Answer 13

Property includes real and personal property and any estate or interest in any real or personal property, money, electricity and any debt, and anything in action, and any other right or interest

Question 14

What is a privilege or benefit

Answer 14

• a special right or advantage

Question 15

R v Hayes on pecuniary advantage

Answer 15

A pecuniary advantage is anything that enhances the financial position of the accused. It is the enhancement which constitutes the element of advantage

Question 16

R v Hayes on valuable consideration

Answer 16

A valuable consideration is anything capable of being valuable consideration, whether of a monetary kind or of any other kind, in short, money or moneys worth