Obtaining By Deception - Property Etc.

Question 1

Difference Between 240(1)(a) and 228(1)(b)

Answer 1

DIFFERENCE BETWEEN OBTAINING BY DECEPTION 240(1)(a) and USES A DOC 228(1)(b):
Fundamental difference is that obtains by deception uses deception to obtain a service, pecuniary advantage, valuable consideration or benefit.
Using a document involves the unlawful use document to obtain the a service etc.

Question 2

Obtaining By Deception

Answer 2

OBTAINING BY DECEPTION 240(1)(a)

• By any deception
• Without claim of right
• Obtains ownership or possession of or control over
• Any property, privilege, service, pecuniary advantage, valuable consideration directly or indirectly.

Question 3

R V MORLEY / Intention

Answer 3

Intention to deceive requires the deception be practiced in order to deceive affected party. Purposeful intent is necessary and must exist at the time of deception.

Question 4

Intention To Deceive

Answer 4

INTENTION TO DECEIVE
No offence committed unless false statement, nondisclosure, trick etc done to deceive victim. Without would be reckless and outside S240(2)(c)

Intent two fold - intention to commit the act and intention to get a specific result

Question 5

Intention Examples

Answer 5

FALSE REPRESENTATION EXAMPLES/HOW PROVEN
Orally - Claiming to own goods that are actually subject to hire purchase agreement
By Conduct - Pretending to be a collector for a charity by appearing to carry an official collection bag
Documentary - Presenting a false certificate of qualifications or completing valueless cheque knowing it cant be honoured

Question 6

Deception

Answer 6

DECEPTION - 240(2) CA 61
In this sections deception means;
(a) A false representation, (oral, documentary or conduct) where the person making the representation intends to deceive another person and knows/is reckless as to whether it is false in a material particular
(b) An omission to disclose a material particular, in circumstances where there is duty to disclose, with intent to deceive any person
(c) A fraudulent device, trick or stratagem used with intent to deceive any personal

Question 7

What Must Be Proved

Answer 7

TO PROVE FALSE REPRESENTATION/DECEPTION YOU MUST

• There was an intention to deceive
• That there was a representation by the defendant
• That the representation was false and
• KNOWLEDGE - The defendant either knew or was reckless that representation was false in a material particular. Absolute certainty not required.

Question 8

R V MORLEY / Representations

Answer 8

Representations must relate to a statement of existing fact, rather than a statement of future intention.

Question 9

Representation

Answer 9

REPRESENTATION
Not defined. Includes representations about a past/present fact, existing intention, opinion, belief, knowledge . It must be capable of being false so it must contain a proposition of fact.

Question 10

False Representation

Answer 10

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

Question 11

Price Tag / Silence

Answer 11

PRICE TAG / SILENCE
Silence/nondisclosure will generally not be regarded as a representation. However, label swapping and not drawing attention an exception.
Allowing cashier to charge an incorrect price and not pointing out the higher price tag amounts to a representation that the price tag was the correct one.

Question 12

Guilty Knowledge

Answer 12

PROVED IN REGARD TO KNOWLEDGE
Prosecution must prove that the defendant knew that the representation was false in material particular or was reckless as to its falsity, Absolute certainty is not required.

Established by admission, implication from the circumstances surrounding the event or propensity evidence.

Question 14

R V CAMERON / Recklessness

Answer 14

R V CAMERON - RECKLESSNESS
Recklessness is established if: defendant recognised that there was a real possibility that - actions would bring about the proscribed result; the proscribed circumstances existed and having regard to that risk those actions were unreasonable.

Question 15

Device, Trick, Stratagem

Answer 15

DEVICE - A plan, scheme or trick
TRICK - Action/scheme undertaken to fool/outwit/deceive
STRATAGEM - Cunning plan/scheme especially for deceiving an enemy

Must be “fraudulent” - meaning dishonest in the traditional moral sense

Question 16

R V COX / Possession

Answer 16

R V COX - POSSESSION
Involves two elements - first the physical element, the actual or potential custody/control. Secondly the mental element which is a combination of knowledge and intent. Knowledge in the sense of an awareness that substance is in their possession and an intention to exercise possession.

Question 17

Ownership / Control

Answer 17

OWNERSHIP - Synonymous with the concept of title.
CONTROL - To exercise authoritative or dominating influence or command over it. Do not need to possess in order to have control it (but need to exercise some control over it), could be through agency

Question 18

Privileged and Benefit

Answer 18

Not limited to pecuniary nature/doesn’t need to be financial loss to defrauded person - I.e using other persons gym membership, access to medical services.

Question 19

Material Particular

Answer 19

Not defined in CA61 - normal meaning of important, essential or relevant detail or item. Something that matters.

Question 19

Two Questions To Ask Person Who Has Been Defrauded

Answer 19

That the false representation was believed and it was consequence of that belief they parted with their money

Question 20

Special Interest Lien

Answer 20

SPECIAL INTEREST LIEN
A lien is a right over another’s property to protect a debt charged on that property. I.e. garage proprietor placed a ‘lien’ on vehicle until payment of the debt made - special interest.
If owner of the car uses false pretence to get garage proprietor to give up his lien over and possession of the car obtained by deception.

Question 21

Difference Between Theft and Obtaining By Deception

Answer 21

THEFT V DECEPTION
In theft property is obtained without owners permission and thief never gets title (possession only). But a person, who by deception/other deceit, induces another to hand over goods with the intention that the title will pass, does get title - limitations on this title (voidable).