Obtains by Deception - Property Flashcards
Section and Penalty
S240(1)(a) CA61 Exceeds $1000 - 7 Years Imp $500 to $1000 - 1 Year Imp Under $500 - 3 Months Imp
Elements
(1) By deception and without claim of right (2) Obtains ownership or possession of, or control over (3) Any property, privilege, service, pecuniary advantage, benefit or valuable consideration, directly or indirectly
Deception Legislation
S240(2) CA61 Deception means: (a) a false representation, whether oral, documentary, or 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 a material particular; or (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.
R v Morley Intent to Deceive
R v Morley An intention to deceive requires that the deception is practised in order to deceive the affected party. Purposeful intent is necessary and must exist at the time of the deception.
No offence unless there is an intent to deceive the victim or know that Victim is certain to be deceived.
INTENT DEF as well
Representation
Not defined - exaples representation about a past or present fact about a future event or about an existing intention, opinion, belief, knowledge or other state of mind.
It must be capable of being false it it must contain a proposition of fact.
Defendant must know or believe that its false or be reckless whether it is false. Absolute certainty is no required- wilful blindess is sufficent.
R v Morley Representations
R v Morley Representations must relate to a statement of existing fact, rather than a statement of future intention
Deception
Orally and by Conduct
Orally
Verbally claiming to own goods that are in fact subject to a hire purchase agreement.
Conduct
Representing oneself to be a collector for charity by appearing to be carrying an official collection bag.
Silence
silence or non-disclosure will not be regarded as a representation, but there are exceptions to this such as where an incorrect understanding is implied from a course of deal and the defendant has failed to negate that incorrect understanding.
Eg using a different price on item knowing it to be false.
Knowledge
The prosecution must prove that the defendant knew that the representation was false in a material particular or was reckless as its falsity. Absolute certainty is not required.
Simester and Brookbank - knowing or correctly believing. The Defendant may believe sometthing wronglybut cannot know something that is false.
R v Harney Recklessness
Recklessness means the conscious and deliberate taking of an unjustified risk. In New Zealand it involves proof that the consequence complained of could well happen, together with an intention to continue the course of conduct regardless of risk.
Subject - consciously and deliberately ran a risk
Objective - risk was unreasonable in the circumstances as they were known to the Defendant (based on what a reasonable person would have thought)
Omission
Duty to Disclose
Fraudeulent/trick
Omission - inaction - conscious decision not to do something or not giving thought to the matter at all
Duty to disclose - show that some material particular was not disclosed, that the defendant was under a duty to disclose and that the defendant failed to perform that duty.
Fraudulent/Trick - commiting a trick or using a fraud device to deceive.
Claim of Right
S2 CA61 In relation to any act, means a belief at the time of the act in a proprietary 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 or mistake of fact or of any matter of law other than the enactment against which the offence is alleged to have been committed.
Obtains
S217 CA61 Obtain, in relation to any person, means obtain or retain for himself or herself or for any other person
Possession R v Cox
R v Cox Possession involves two … elements. The first, often called the physical element, is actual or potential physical custody or control. The second, often described as 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.
Special Interest Lien Definition and Example Of note only
In general terms, a lien is a right over another’s property to protect a debt charged on that property. - Garage owner repairing another person’s vehicle, places lien over it until debt is paid.
