Obtaining By Deception - Property Etc. Flashcards
Difference Between 240(1)(a) and 228(1)(b)
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.
Obtaining By Deception
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.
R V MORLEY / Intention
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.
Intention To Deceive
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
Intention Examples
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
Deception
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
What Must Be Proved
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.
R V MORLEY / Representations
Representations must relate to a statement of existing fact, rather than a statement of future intention.
Representation
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.
False Representation
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.
Price Tag / Silence
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.
Guilty Knowledge
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.
R V CAMERON / Recklessness
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.
Device, Trick, Stratagem
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
R V COX / Possession
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.
Ownership / Control
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
Privileged and Benefit
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.
Material Particular
Not defined in CA61 - normal meaning of important, essential or relevant detail or item. Something that matters.
Two Questions To Ask Person Who Has Been Defrauded
That the false representation was believed and it was consequence of that belief they parted with their money
Special Interest Lien
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.
Difference Between Theft and Obtaining By Deception
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).
