Obtaining By Deception Or Causing Loss By Deception Flashcards
S.240(1)(b)
Obtains credit
Everyone is guilty of obtaining/causing loss by deception:
By any deception, and without claim of right:
- in incurring any debt or liability, obtains credit
S.240(1)(c)
DEMADE
Everyone is guilty of obtaining/causing loss by deception:
By any deception, and without claim of right:
- induces/causes any other person to (DEMADE) deliver over, execute, endorse, alters, destroys, make any document/thing capable of being used to derive a pecuniary advantage.
S.240(1)(d)
Everyone is guilty of obtaining/causing loss by deception:
By any deception, and without claim of right:
- causes loss to any other person
S.240(1)(a)
Everyone is guilty of obtaining by deception or causing loss by deception
Who by any deception and without claim of right
Obtains ownership or possession of or control over, any property, or any privilege, service, pecuniary advantage, benefit or valuable consideration, directly or indirectly.
Deception Means 240(2)
(a) a false representation, whether by conduct, orally or documentary where the person making the representation intends to deceive any other person and
(i) knows its 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
Representation
Not defined, eg, representations of past, present, future fact or event or about an existing intention, opinion, belief, knowledge, state of mind.
It must be capable of being false so it must contain a proposition of fact
What do you need to prove under S240(1)
- Intent to deceive
- there was a representation by the defendant
- that representation was false
- and they knew it was false in a material particular or
- They were reckless whether it was false in a material particular
S240(2) - deception case law
R v Morely
- an intention to deceive requires that the deception is practiced in order to deceive the affected party. Purposeful intent must exist at the time of the deception.
Recklessness - Cameron v R
Recklessness is established if the defendant recognises that there is a real possibility that thier actions would bring about the proscribed result and/or that the proscribed circumstances existed.
Having regard to that risk those actions were unreasonable
Intent
In the criminal law context, there are two specific types of intent, an intent to commit the act and the intent to get a specific outcome.
3 examples of intent in deception - 240(2)
- Orally - claiming to own goods that are on hire purchase
- Conduct - representing yourself as a collector for a charity by carrying an official collection bag
- Documentary - presenting a false certificate of qualification or a valueless cheque
R v Morley - Representations
representations must relate to a statement of existing fact, rather than a statement of future intention
Continuing effect of representations
Example
Word or conduct may have a continuing effect
EG: ordering dinner at a restaurant represents that you would have dinner and pay after. If during the course of dinner the diner decides to avoid that payment, the continuing representation will become false and obtaining the food will come within s.240(1)
Representation - Silence
- Silence/ non-disclosure is not a representation.
- except when an incorrect understanding is implied from a course of dealings and the defendant fails to negate that incorrect understanding.
Example - price tags on shop items, defendant knowingly allows cashier to scan the much lower price tag without telling them.
Knowledge
Knowing or correctly believing, defendant may believe something wrongly but cannot know something that is false
Knowledge can be established by…
- An admission
- Implied from the circumstances surrounding the event
- Propensity evidence
Includes - wilful blindness
False in a material particular
Am important, essential, relevant detail or item. Something important or something that matters.
Can be a minor detail.
Omission
Inaction, not acting, a conscious decision no to do something or not giving though to material at all
Duty to disclose 240(2)(b)
Requires proof that there was some material particular that was not disclosed and the defendant had a duty to disclose it, but failed to do so.
Eg a contractual relationship
Fraudulent device, trick or stratagem
- conduct must be used with intent to deceive
- covers any fraudulent conduct
- fraudulent - dishonest in a traditional moral sense
- can be a simple trick or ore complex schemes (eg pyramid schemes)
Device, trick, stratagem definitions
Device - a plan, scheme or trick
Trick - an action or scheme undertaken to fool, outwit or deceive
Stratagem - a cunning plan or scheme especially for deceiving an enemy or trickery
Without claim or right
A belief at the time of the act or omission in a proprietary or possessionary right in property relating to the alleged offence committed. The belief may be based on ignorance or mistake of fact or any other matter of law
Obtains
Obtain or retain for themselves or any other person
Property
Real or personal property or any estate or interest in any real or personal property, money, debt, electricity, anything in action, and any other right or interest.
Valuable consideration
Anything capable of having value, Money or money’s worth
Eg:
- money for goods/services
- goods for a service provided
- issuing a false invoice to receive payment for goods never supplied
Pecuniary Advantage - Hayes v R
Anything that enhances the financial position of the accused
Privilege or benefit
Special right or advantage
Eg:
- using someone else’s gym card
- access to medical services
- withdrawal of an assault charge
- reduction in sentence for an offence
If the benefit or privilege does not involve money there does not need to be financial loss or injury to the person defrauded
Obtains ownership
- The goods come under the physical control of the defendant.
- can occur through a third party
- example - when there is an agreement that a cheque will be sent by post to complete a transaction, the obtaining is complete at the time of posting
Distinction between obtaining by deception and theft
In theft the property is obtained without the owners permission and title is not passed on
Ownership
- synonymous with title
- sometimes a person parting with goods relinquishes the possession and passes on a legal right of ownership (title) for the goods
Possession
- a person often holds possession and ownership at the same time and therefore passed on at the same time
- can possess something without having title, eg driving someone else’s car
- eg - goods purchased with a valueless cheque. Both possession and title are transferred
Possession - r v Cox
Two elements, the physical is the actual or potential custody or control. The second, the mental element is a combination of knowledge and intention, knowledge in the sense of awareness that the substance is in his possession and an intention to exercise possession.
Special interest
the person whose goods were obtained had some special property or interest in the goods, without having actual ownership or them.
Special Interest - lien
Eg - when you take a car to the garage they can have a lien until the debt is paid - garage owner can retain possession of the car and gives them a special property or interest in the vehicle
Special Interest - lien
Eg - when you take a car to the garage they can have a lien until the debt is paid - garage owner can retain possession of the car and gives them a special property or interest in the vehicle
Control
To exercise authoritative or dominating influence or command over it.
Do not need to possess it to control it.
The defendant must exercise their control of the property
Control
To exercise authoritative or dominating influence or command over it.
Do not need to possess it to control it.
The defendant must exercise their control of the property
Pecuniary Advantage - define and 4 examples
An economic or monetary advantage
- Cash from stolen goods
- Clothing or cash obtained by a credit/EFTPOS card
- A discount (student ID)
- Avoiding or deferring payment of a debt
Eg - reusing TAB tickets to obtain a pecuniary advantage. The TAB machine didn’t allow it. So, the purpose was unsuccessful, but the use was successful
Debt
Money owing from one person to another
Must be legally enforceable
Debt
Money owing from one person to another
Must be legally enforceable (if a contract is void or illegal there is no offence)
Liability
Legally enforceable financial obligation to pay
Obtaining Credit
- Requires a debtor to gain a creditor’s agreement to the deferred payment of a debt or obligation. The credit obtained must be in respect of a monetary obligation.
- Obligation must be legally enforceable
- may involve varying times to pay
Fisher v Raven - obligation to pay
Credit refers to the obligation on the debtor to pay/repay and the time given for them to do so by the creditor. Credit does not extend to an obligation to supply services or goods
Examples of obtaining Credit
- obtaining money on loan
- extending existing overdraft facilities
- renting or leasing a dwelling
Must occur with the intent to deceive
When must the defendant form the intention to deceive?
R v McKay - the credit had been obtained on booking in but at that time the accused did not possess an intent to deceive
- At the time of obtaining credit.
- eg - a later decision not to repay is insufficient
- eg - must prove that the diner intended to deceive when they entered the restaurant or when they started there meal
When must the defendant form the intention to deceive?
R v McKay - the credit had been obtained on booking in but at that time the accused did not possess an intent to deceive
- At the time of obtaining credit.
- eg - a later decision not to repay is insufficient
- eg - must prove that the diner intended to deceive when they entered the restaurant or when they started there meal
Credit & 2 examples
- is intangible
- must be in respect of monetary obligation
Eg - entering a restaurant with no intent to pay = obtaining credit by deception
Eg - shopkeeper mistakes ID of person and gives them credit and the person doesn’t correct them = obtaining credit by deception
Credit & 2 examples
- is intangible
- must be in respect of monetary obligation
Eg - entering a restaurant with no intent to pay = obtaining credit by deception
Eg - shopkeeper mistakes ID of person and gives them credit and the person doesn’t correct them = obtaining credit by deception
Not obtaining credit by deception if..
- delay or non-payment (loss of money/oversight)
- inability to perform a bona fide intention
Hire Purchase
- if good are put on hire purchase under a false representation = Deception
- if the offender later sells them = theft by conversion
- s240(1)(c) covers hire purchase deception
Induces
To persuade, bring about or give rise to.
- another person must be induced or caused to deliver over, execute, make, accept, alter, destroy, endorse the document or thing
Proof of enducement
By the victim:
- believing the false representation
- that it was the consequence of that belief that the victim parted with their money
R v Laverty - induce
It is necessary that the prosecution prove that the person parting with the property was included to do so by the false representation made.
R v Laverty - induce
It is necessary that the prosecution prove that the person parting with the property was included to do so by the false representation made.
Causes
The defendant or act of the defendant must be the substantial and operative cause of the delivery, execution etc of any document capable of deriving pecuniary advantage
- the accused must cause the loss
- Deliver over
- execute
- endorse
- alter
- accept
- make
- deliver over- to surrender up someone or something
- execute- put a course of action into effect
- endorse - write or sign a document
- alter - change in character or composition, typically in a small but significant way
- to accept - to receive something
- Deliver over
- execute
- endorse
- alter
- accept
- make
- deliver over- to surrender up someone or something
- execute- put a course of action into effect
- endorse - write or sign a document
- alter - change in character or composition, typically in a small but significant way
- to accept - to receive something
Document
Anything capable of being used to record information, and derive a pecuniary advantage
Thing
- Must be tangible
- must be capable of being used to derive a pecuniary advantage
Loss
- financial detriment to the victim
- must be a direct loss
- the loss flowing from the deception should be assessed by the extent to which the complainants’ position before deception had been diminished or impaired
- the person suffering loss doesn’t have to be the person deceived
Any other person
Incorporates real people, companies and organisation’s, society’s, boards, local authority
What to prove in S.240(1)(d)
- loss was caused by deception
- it was reasonably foreseeable some or more than trivial loss would occur
- need not prove the loss was intentionally caused
Penalty
> $1000 = 7 years imp
$500 < $1000 = 1 year imp
< $500 = 3 months
