Obtaining or Causing loss by deception Flashcards
What is the liability for Obtaining by deception Section 240(1)(a)?
- By any deception
- Without claim of right
- Obtains;
Ownership
Possession
Control
- Over any
Property Service Pecuniary advantage Valuable Consideration Privilege Benefit
- Directly or indirectly
Explain Privilege or Benefit
The words privilege or benefit are not limited to a privilege or benefit of a pecuniary nature. Both of these words mean a special right or advantage.
Where it does not involve money, there does not need to be a financial loss or injury to the person who has been defrauded
examples
- Using another person’s gym membership card so they can use the facilities
Explain the concepts of ownership and control
Ownership is synonymous with title - a legal right to property
To control something means to exercise authoritative or dominating influence or command over it.
What is ideal possession and explain the relevant case law
R v Cox
Possession involves 2 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 is in his possession and an intention to exercise possession.
Provide 4 examples of pecuniary advantage
- Cash from stolen goods
- Clothing or cash obtained by credit or EFTPOS card
- A discount (by using a student ID card)
- Avoiding or deferring payment of a debt card
What is the liability for Obtaining by deception Section 240(1)(b)?
- By any deception
- Without claim of right
- In incurring and debt or liability
- Obtains Credit
What is the definition of debit and liability
Debt means money owing from one person to another
Liability means a legally enforceable financial obligation to pay, such as the cost of a meal
Note that the debt or liability must be legally enforceable
R v Raven
What is the definition of credit.
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 goods
Provide 3 examples where credit may be obtained
- obtaining money on loan
- Extending existing overdraft facilities
- Renting or leasing a dwelling
What is the case law that relates to the timing of intention to deceive (obtains credit)
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 an intent to deceive”
What was held in R v Laverty in relation to inducement?
“It is necessary for the prosecution to prove that the person parting with the property was induced to do so by the false representation made.”
As they relate to Section 240(1)(c), explain the terms:
- To deliver over
- Execute
- Endorse
- Alter
- Accept
- To deliver over is to surrender up someone or something
- Execute, is to put a course of action into effect
- Endorse, is to write or sign on a document
- Alter, is to change in character or composition, typically in a comparatively small but significant way
- Accept, is to receive something
What is the liability for Section 240(1)(d) Causing loss by deception?
- By any deception
- Without claim of right
- causes loss
- To any other person
Explain Loss as it relates to deception
Loss will involve financial detriment to the victim.
The loss caused by deception must be in the nature of a direct loss
The court considers that the loss following from the deception should be assessed by the extent to which the complainant’s position before the deception had been diminished or impaired
What is required to be proved for the offence of Section 240(1)(d) Causing loss by deception?
The prosecution must prove that:
- The loss was caused by a deception
- It was reasonably foreseeable some more than trivial loss would occur, but
- Need not prove the loss was intentionally caused
Thus, there must be loss to “ Any other person”, but there is no requirement that there be any benefit to anyone
