Obtains by Deception - Obtains Property etc

Question 1

Obtains by Deception (Obtains Property etc) - Section/Act/Penalty

Answer 1

S240(1)(a) CA61
3 Months (under $500)
1 Year ($500 - $1000)
7 Years (Over $1000)

Question 2

Obtains by Deception (Obtains Property etc) - Ingredients

Answer 2

1. By any deception
2. Without Claim of Right
3. Obtains Possession of or control over any property, or privilege, service, pecuniary advantage or benefirt or valuable consideration

Question 3

By any deception - what to cover for liability

Answer 3

• Definition of Deception
• Definition of False Representation
• Definition of Intent to Deceive
• Case Law R v Morley
• Case Law r v Laverty

Question 4

Definition of Deception

Answer 4

S240(2) CA61

(a) a false representation, whether oral, documentary, ot by conduct, where the person making the representation intends to deceive any other person and -
(i) knows that it is false in a material particular; or
(ii) is reckless as to whether it is false in material particular.
(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

Question 5

Definition of False Representation

Answer 5

False Representation

• must be false and the defendant must know or believe that it is false in a material particular; or
• be reckless as to whether it is false

Absolute certainty is not required and wilful blindness as to the falsity of the statement will suffice

Question 6

Definition of Intent to Deceive

Answer 6

Offender must know representation is false and intends the other person to act upon it as genuine

Question 7

Case Law - R v Morley

Answer 7

The intention to deceive requires that the deception be practiced in order to deceive the affected party. Purposeful intent must exist at the time of the deception.

Question 8

Case Law - R v Laverty

Answer 8

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.

Question 9

Without Claim of Right - what to cover for the liability

Answer 9

• Definition of Claim of Right

Question 10

Definition of Claim of Right

Answer 10

S2 CA61
In relation to any act, means a belief at the time of the act in a propriety or possessory right in property in relation to which the offence is alleged to have been committed, although that belief may be based on ignorance, mistake of fact, or any other matter of law other than the enactment against which the offence is alleged to have been committed.

Question 11

Obtains Possession of or control over any property, or privilege, service, pecuniary advantage or benefirt or valuable consideration - what to cover for liability

Answer 11

• Definition of Obtains
• Case Law R v Cox
• Definition of actual possession OR definition of potential possession
• Definition of Property OR

Definition of any Privilege OR

Definition of Service OR

Definition of Pecuniary Advantage and Case Law R v Hayes OR

Definition of valuable consideration

Question 12

Definition of Obtains

Answer 12

S217 CA61

Obtain, in relation to any person, means to obtain or retain for himself or herself or any other person

Question 13

Case Law R v Cox

Answer 13

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 is in his Possession; and an intention to exercise Possession

Question 14

Definition of Actual possession

Answer 14

Actual Possession

Means that the person actually has the drug in their custody or control

Question 15

Definition of potential possession

Answer 15

Potential Possession

Potential possession arises when the person has the potential to have the thing in question in their control

Question 16

Definition of Property

Answer 16

S2 CA61
Means any real or personal property, or any estate or interest in any real or personal property, money, electricity and any debt, and any thing in action, and any other right or interest.

Question 17

Definition of Privilege and Benefit

Answer 17

Special right or advantage

Question 18

Definition of Service

Answer 18

Not defined in CA61

Question 19

Definition of Pecuniary Advantage and Case Law R v Hayes

Answer 19

Basically means an economic or monetary advantage.

R v Hayes
A pecuniary advantage is anything that enhances the accused’s financial position. It is that enhancement which constitutes the element of advantage.

Question 20

Definition of valuable consideration

Answer 20

R v Hayes
A valuable consideration is anything capable of being valuable consideration, whether of a monetary kind or of any other kind; in short, money or money’s worth