Questions I Flashcards
What are the 4 types of belief for Claim of Right? -
1st Belief
1st - The belief must be a belief in a proprietary or possessory right in property. That is, there must be a belief that relates to an element of ownership of the property in question, or a right to take or retain possession of it. In this case ‘property’ must include in appropriate cases, intangible property that cannot be possessed must be owned.
What are the 4 types of belief for Claim of Right? -
2nd Belief
2nd - The belief must be about the right to the property in relation to which the offence is alleged to have been committed. A belief that the defendant has had a propriety or possessory right in relation to other property and was therefore in some way justified in taking or dealing with the property in regard to which the offence was allegedly committed will not be relevant or sufficient.
What are the 4 types of belief for Claim of Right? -
3rd Belief
3rd - The belief must be held at the time of the conduct alleged to constitute an offence.
What are the 4 types of belief for Claim of Right? -
4th Belief
4th - The belief must be actually held by the Defendant. The belief is not required to be reasonable or be reasonably held and may be based on ignorance or mistake.
What is the meaning of Debt or liability incurred
The debt or liability (incurred) must be legally enforceable. This means that if the contract is void or illegal there will be no offence.
‘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.
Where a person has been induced to part with goods by deception, what are two steps he can take to avoid the deceiver’s title?
- Take all other possible steps to bring it to the offenders notice, eg writing a letter.
- Advise the Police that the goods were obtained by deception.
To successfully prosecute a person on a charge of (using altered or reproduced documents with intent to deceive) under s 259 CA, what three mental elements must you prove?
- The defendant must know that the document has been altered with intent to deceive.
- The defendant must have intended by the employment of the document, or by causing another to use or rely on it, to obtain by deception any property, privilege, service, pecuniary advantage, benefit, or valuable consideration or to cause loss to any other person.
- There must be an intention to acquire or retain the property etc, or to cause loss ‘by deception’.
How is the term representation interpreted (not defined) by the courts? State the relevant case law
Examples have included representations 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 so it must contain a proposition of fact.
R v Morley
Representations must relate to a statement of existing fact, rather than a statement of future intention.
An offender knowingly presents to the retailer an item with two different price tags for different amounts, aware the higher amount is the correct amount. He shows the lower price to the checkout operator and obtains the item for the lower price. What is the offence committed and who has title to the item obtained by the offender?
Obtains by deception and the title would belong to the offender which has been obtained by deception.
What are the ingredients of obtaining credit by deception under s 240(1)(b) CA 61
Everyone is guilty of obtaining by deception or causing loss by deception who:
- by any deception
- and without claim of right,
- In incurring any debt OR liability
- obtains credit
When recklessness is an element in an offence what must be proved?
That the defendant consciously and deliberately ran a risk (a subjective test).
That the risk was one that was unreasonable to take in the circumstances as they were known to the defendant (objective test – based on whether a reasonable person would have taken the risk).
Proof of inducement
The inducement should be proved whenever possible by direct evidence from the person alleged to have been defrauded. In practice the victim of the deception is usually questioned to elicit answers proving:
- That the false representation was believed, and
- That it was the consequence of that belief that the victim parted with his or her money
What is the subjective and objective test for Recklessness?
It must be proved not only that the defendant was aware of the risk and proceeded regardless (a subjective test), but also that it was unreasonable for him to do so (an objective test).
