Obtaining By Deception or Causing Loss by Deception Flashcards
What is the section and elements of Obtaining By Deception or Causing Loss By Deception [Obtains ownership etc] (Important)
s240(1)(a) CA1961
- By any deception
- Without claim of right
- Obtains ownership OR possession of OR control over
- Any property OR privilege OR service OR pecuniary advantage OR benefit OR valuable consideration directly or indirectly
What is the section and elements of Obtaining By Deception or Causing Loss By Deception [Obtains credit] (Important)
s240(1)(b) CA1961
- By any deception
- Without claim of right
- In incurring any debt OR liability
- Obtains credit
What is the section and elements of Obtaining By Deception or Causing Loss By Deception [Delivers etc any document or thing]
s240(1)(c) CA1961
- By any deception
- Without claim of right
- Induces OR causes any other person
- To deliver over OR execute OR make OR accept OR endorse OR destroy OR alter
- Any document OR thing
- Capable of being used to derive a pecuniary advantage
What is the section and elements of Obtaining By Deception or Causing Loss By Deception [Causes loss etc] (Important)
s240(1)(d) CA1961
- By any deception
- Without claim of right
- Causes loss to any other person
Define deception (Important)
- A false representation, whether oral, documentary or by conduct where the person making the representation intends to deceive any other person and knows that it is false in a material particular or is reckless as to whether it is false in a material particular
- An omission to disclose a material particular with intent to deceive any person in circumstances where there is a duty to disclose it
- A fraudulent device, trick or stratagem used with intent to deceive any person
What is a representation?
It must be capable of being false and thus must contain a proposition of fact
For deception, will wilful blindness as to the falsity of a representation suffice?
Yes
For a false representation under deception, what must you prove? (Important)
- There was a deception (representation) by the defendant
- That there was an intent to deceive
- The representation was false and that the defendant either knew it was false in a material particular or was reckless whether it was
What are all the case law relevant for deception?
R v Morley twice and either R v Collister/Cameron v R
For deception by false representation, discuss if awareness and/or recklessness of deception is sufficient
It is insufficient if the deception is done with mere awareness, intent to deceive is required.
Recklessness as mentioned only relates to whether a representation is false in a material particular.
Does deception need to benefit the person making the decption?
No it could benefit another person
Discuss the case law for recklessness (Important)
Cameron v R: Recklessness is established if the defendant recognises a real possibility that his or her actions would bring about the proscribed result, and or that the proscribed circumstances existed, and having regard to that risk those actions were unreasonable
Discuss R v Morley as it relates to deception (Important)
An intention to deceive requires that the deception is practiced in order to deceive the affected party. Purposeful intent is necessary and must exist at the time of the deception.
&
Representations must relate to a statement of existing fact, rather than a statement of future intention
Discuss continuing effect. Give an example (Important)
In many cases a representation can have a continuing effect, and can become false while in continuation (e.g. ordering food and deciding part way through the meal not to pay, even though at the start you intended to pay)
For a representation, what must you consider?
What the defendant implied in his representation and what meaning was conveyed to the party deceived
Discuss silence and non-disclosure as it relates to representations. Give an example (Important)
As a general rule, silence and non-disclosure are not regarded as representations unless there is a incorrect understanding implied from dealing with the defendant and the defendant fails to negate the incorrect understanding. (e.g. label swapping in retail stores)
Define knowledge
Correctly believing. You cannot know something that is false.
How can knowledge be established? (Important)
- An admission
- Implication from the circumstances surrounding the event
- Propensity evidence
Discuss R v Crooks as it relates to knowledge (Important)
The accused may also liable if their conduct has amounted to “wilful blindness” and thus is equated to knowledge
Define a material particular (Important)
An important, essential or relevant detail or item.
It can be a small detail or item if it is important, essential or relevant
Can a minor detail be a material particular?
Yes, so long as it is important, essential or relevant
Define an omission
An inaction. It can involve a conscious decision not to do something or not giving thought to the matter at all.
Where do duties to disclose as required in section s240(2)(b) often arise? (Important)
Civil law
What do fraudulent device, trick or stratagem cover?
Effectively covers any form of fraudulent conduct
What must a fraudulent device, trick or stratagem be intending to accomplish to be deception?
Intent to deceive
Define fraudulent
Dishonest in the traditional moral sense
Define device
A plan, scheme or trick.
Define a trick
An action or scheme undertaken to fool, outwit or deceive
Define a stratagem
A cunning plan or scheme especially for deceiving an enemy or trickery
Define privilege/benefit
Both mean a special right or advantage. They are not limited to a privilege or benefit of a pecuniary advantage.
Does someone need physical possession to “obtain” it?
No, it can merely be under their control
What is the distinction between theft and obtained by deception? (Important)
For theft, the property is obtained without the owners permission and title has not passed on
Define ownership
Ownership is synonymous with the concept of title. It requires someone relinquishing possession and title to the goods.
Define possession using the appropriate case Law
R v Cox: 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 was in his possession and an intention to exercise possession
Can you possess something without having title to it?
Yes
What is the difference between actual possession and potential position?
Actual possession is when it is in a persons physical custody or control. Potential possession is when they have the potential to have it so
Define control
Authoritative or dominating influence or command
Do you need possession over something to have control over it?
No
Can someone exercise control via an agent?
Yes
Discuss special interest and property. Give an example (Important)
It is sufficient if the person from whom goods were obtained had some special property or interest in the goods without having actual ownership of them.
R v Cox gives the example of a garage who places a ‘lien’ on a motor vehicle payment of debt is made. This gave the garage a special property or interest in the vehicle and the owner inducing them to handover the vehicle was obtaining by deception.
Define debt (Important)
Money owing from one person to another
Define a liability (Important)
A legally enforceable financial obligation to pay
Give a common example of a liability
The obligation to pay for a meal after eating at a restaurant
To be a debt or liability, it must be…. (Important)
Legally enforceable. If the contract is void or illegal there is no offence
What are the case law for credit
Fisher v Raven & R v McKay
For credit, a debtor requires what from a creditor?
Agreement to the deferred payment of a debt or liability
Is credit tangible or intangible?
Intangible
Credit must be in respect what kind of obligation?
Monetary obligation
Discuss the period of credit (Important)
Involves the length of time at the end of which credit payment is expected to be made
Is an act “Obtained by Deception” if it relates to an extension of credit to another person?
Yes extension of credit to another person is sufficient
To make obtaining credit obtained by deception there must be intent to deceive at what time?
At the time when the deception is perpetrated and the credit is obtained
Can continuing representations apply to obtain by deception involving credit? (Important)
Yes
Intention to deceive when obtaining credit is not proven soley by what three situations?
- Delay or nonpayment of the debt
- An inability to perform a bona fide intention
- When payment is withheld because of genuine dissatisfaction with the service
Discuss the offences of Theft by Conversion and Obtains by Deception as it relates to higher purchase. When would each offence be applicable? (Important)
Where goods are obtained on higher purchase by a false representation offence committed is Obtains by Deception. However if the obtainer later sells the goods to another they commit Theft by Conversion as they never had title over the goods.
Does an offender obtain title for goods fraudulently obtained on higher purchase? (Important)
No
Define induce
To persuade, bring about or give rise to
How do you prove inducement? (Important)
Inducement should be proven whenever possible by direct evidence from the person alleged to has been deceived. In practice the victim of the deception is questioned to illicit answers proving:
- That the false representation was believed, and
- That it was the consequence of that belief that the victim parted with their money
For any document or thing to be obtained by deception the deception must be what?
Believed and the associated action induced by such belief
What is the case law for induces? Outline the findings in this case (Important)
R v Laverty: it is necessary for the prosecution to prove that the person parting with the property was induced to do so by the false representation
Define causes
The defendant, or an act of the defendant, must be the substantial and operative cause of the action
Define deliver over
To surrender up someone or something
Define execute
To put a course of action into effect
Define endorse
Write or sign a document
Define alter
Change in character or composition
Define accept
Receive something
What are the definitions of make and destroy
They have their common usage as definitions
For obtained by deception under section 240(1)(c) the thing or document must be what? (Important)
Capable of being used to derive a pecuniary advantage
A thing must be …
Tangible
Define loss
The extent to which the victim’s position before the deception is diminished or impaired. In most cases it will involve financial detriment. It must be a direct loss and not an indirect or expected loss.
Does the person who suffers loss need to be the same as person deceived?
No
Detail the case Law for loss
R v Morley: the loss must have been caused by the deception. But the deception need not be the only operative factor, so long as it played a material part
Define a person
A person includes the crown, any public body or local authority, any board, society, or company and any other body of persons
For causing loss the court has stated the prosecution must prove what?
- The loss was caused by a deception
- It was reasonably foreseeable that some more than trivial loss would occur, but it need not prove the loss was intentionally caused
What are the punishments for obtaining or causing loss by deception?
- exceeds $1000 = 7 years
- $500-$999 = 1 year
- Under $500 = 3 months
Detail Fisher v Raven (Important)
Fisher v Raven: credit refers to the obligation on the debtor to pay or repay, and the time given for them to do so by the creditor. Credit does not extend to an obligation to supply services or good.
Detail R v McKay
R v McKay: on appeal it was held that the credit had been obtained on booking in but at that time the accused did not possess intent to deceive
Gaining credit is not itself unlawful unless it is accompanied by…. (Important)
intent to deceive
What case law defines credit?
Fisher v Raven
