Obtaining by Deception (a)

Question 1

Obtaining by Deception (a)

Answer 1

Section 240 (1) (a) Crimes Act 1961

Question 2

Penalty

Answer 2

3 months/1 year/7 years

Question 3

Elements

Answer 3

1. By any deception
2. Without claim of right
3. Obtains ownership OR Possession of OR control over any property OR any privilege, service, pecuniary advantage, OR benefit or valuable consideration
   Directly or indirectly

Question 4

Deception

Answer 4

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
b) an omission to disclose a material particular, with intent to deceive any person, in circumstances where there is a duty to disclose it,
c) a fraudulent device, trick or stratagem used with intent to deceive any person
Section 240 (2) CA 1961

Question 5

False representation

Answer 5

• must be false and the defendant must know or believe that it is false in a material particular or
• be reckless whether it is false
  Absolute certainty is not required and willful blindness as to the falsity of the statement will suffice.

Question 6

Intent

Answer 6

In a criminal law context there are two specific types of intention in an offence. Firstly there must be an intention to commit the act and secondly, an intention to get a specific result.

Question 7

Intent to Deceive

Answer 7

The offender must know representation is false and intent the other person to act upon it as genuine.

Question 8

R v Morley

Answer 8

The intention to deceive requires that the deception be practiced in order to deceive the affected party. Purposeful intent must exist at the time of the deception.

Question 9

Claim of right

Answer 9

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 face or of any matter of law other than the enactment against which the offence is alleged to have been committed.
Section 2, Crimes Act 1961

Question 10

Obtains

Answer 10

To obtain or retain for themselves or another person.

Section 217 Crimes Act 1961

Question 11

Ownership

Answer 11

Ownership is synonymous with the concept of title

Question 12

R v Cox

Answer 12

Possession involves two elements.

1) physical element: is actual or potential physical custody or control.
2) mental element: is a combination of knowledge and intention. Knowledge in the sense of an awareness by the accused that the substance is in his possession and an intention to exercise possession.

Question 13

Possession

Answer 13

possession involves two elements. The first, the physical element, is actual or potential physical custody or control. The second, the mental element, is a combination of knowledge and intention: knowledge in the sense of an awareness by the accused that the substance is in his possession; and an intention to exercise possession.

Question 14

Actual possession

Answer 14

Arises where the thing in question is in a person’s physical custody or control

Question 15

Potential possession

Answer 15

Potential possession arises when the person has the potential to have the thing in question in their control

Question 16

Property

Answer 16

Property includes any real or personal property and any estate or interest in any real or personal property, money, electricity and any debt and any thing in action and any other right or interest
Section 2, Crimes Act 1961

Question 17

Privilege or benefit

Answer 17

Special right or advantage

Question 18

Service

Answer 18

Not defined in the Crimes Act 1961

Question 19

Hayes v R - Pecuniary advantage

Answer 19

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

Question 20

Hayes v R - valuable consideration

Answer 20

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