Obtaining by deception or causing loss by deception

Question 1

Obtaining by deception or causing loss by deception Legislation

Answer 1

Section 240 C A 1961

(1) Everyone is guilty of obtaining by deception or causing loss by deception who,
- by any deception and without claim of right,

(a) obtains ownership or possession of, or control over,
- any property, privilege, service, pecuniary advantage, benefit, or valuable consideration,
- directly or indirectly;

(b) in incurring any debt or liability, obtains credit; or

(c) induces or causes any other person
- to deliver over, execute, make, accept, endorse, destroy, or alter
- any document or thing capable of being used to derive a pecuniary advantage; or

(d) causes loss to any other person.

(1A) Every person is liable to imprisonment for a term not exceeding 3 years who,
-without reasonable excuse,
-sells, transfers, or otherwise makes available
-any document or thing capable of being used to derive a pecuniary advantage
-knowing that, by deception and without claim of right, the document or thing was, or was caused to be,
delivered, executed, made, accepted, endorsed, or altered

Question 2

Deception meaning S240(2)

Answer 2

(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; or
(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 3

Representation meaning

Answer 3

Representations about a past or present fact, about a future event, or about an existing intention, opinion, belief, knowledge or other state of mind

Question 4

What must be proven with deception

Answer 4

• 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 whether it was false in a material particular.

Question 5

Intention to deceive Case Law

Answer 5

R V MORLEY - 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 6

Recklessness Case Law

Answer 6

Cameron V R

Recklessness is established if:
(a) the defendant recognised that there was a real possibility that:
(i) his or her actions would bring about the proscribed
result; and/or
(ii) that the proscribed circumstances existed; and
(b) having regard to that risk those actions were unreasonable

Question 7

Intent Definition

Answer 7

Two specific intents - deliberate act (Act or omission that is more than involuntary or accidental)

Specific Act (Aim, object or purpose)

Question 8

A representation by the defendant Case Law

Answer 8

R V MORLEY - Representations must relate to a statement of existing fact, rather than a
statement of future intention.

Question 9

Silence definition

Answer 9

As a general rule, silence or nondisclosure will not be regarded as a representation.

Exceptions to this are where an incorrect understanding is implied but is not corrected by the defendant

Question 10

How is knowledge established?

Answer 10

Knowledge can be established by:
• an admission
• implication from the circumstances surrounding the event
• propensity evidence

Question 11

What must the prosecution prove in relation to knowledge? (Of deception)

Answer 11

The prosecution must prove that the defendant knew that the representation
was false in a material particular or was reckless as to its falsity. Absolute certainty is not required (Wilful blindness may suffice)

Question 12

Material particular meaning

Answer 12

Important, essential or relevant detail or item.

Question 13

Omission meaning

Answer 13

An Omission is inaction, i.e. not acting. It can either be a conscious decision not to do
something or not giving thought to the matter at all

Question 14

Duty to disclose example

Answer 14

A duty to disclose will often originate in the civil law, for example where the parties are in a contractual relationship. (invested interest)

Question 15

Fraudulent

Answer 15

Dishonest in the traditional moral sense.

Question 16

Device

Answer 16

A ‘plan, scheme or trick’.

Question 17

Trick

Answer 17

An action or scheme undertaken to fool, outwit, or deceive

Question 18

Stratagem

Answer 18

A cunning plan or scheme especially for deceiving an enemy, or trickery.