S240(1)(a) Obtaining Property By Deception

Question 1

S240(1)(a) CA61 Elements

Answer 1

• By any deception
• Without COR
• Obtains ownership/ possession of/ control over
• Any property or
• Any privilege/ service/ pecuniary advantage/ benefit/ valuable consideration
• Directly or indirectly

Question 2

S240(1)(b) CA61 Elements

Answer 2

• By any deception
• Without COR
• In incurring any debt or liability
• Obtains credit

Question 3

S240(1)(c) CA61 Elements

Answer 3

• By any deception
• Without COR
• Induces or causes any other person
• To deliver over/ execute/ make/ accept/ endorse/ destroy/ alter
• Any document/ thing capable of being used to derive pecuniary advantage

Question 4

S240(1)(d) CA61 Elements

Answer 4

• By any deception
• Without COR
• Causes loss to any other person

Question 5

Define “deception” S240(2) CA61

Answer 5

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

Question 6

“Deception” what needs to be proved

Answer 6

• There was an intent to deceive
• There was a representation by the defendant
• the representation was false and the defendant either knew it to be false in a material particular OR was reckless whether it was false in a material particular

Question 7

“Intention to deceive” R v Morley

Answer 7

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.

Question 8

“Recklessness” Cameron v R

Answer 8

Recklessness is established if:

(a) the defendant recognized that there was a real possibility that
(i) his or her actions would bring about the proscribed result and/or
(ii) that the proscribed circumstances existed and

(b) having regard to that risk those actions were unreasonable

Question 9

Define “intent”

Answer 9

In a criminal law context….

Question 10

Give examples of “orally/ by conduct/ documentary “

Answer 10

Orally
Verbally claiming to own goods that are in fact subject to a hire purchase agreement

By conduct
Representing oneself to be a collector for charity by appearing to be carrying an official collection bag

Documentary
Presenting a false certificate of qualification or completing a valueless cheque on an account in which there are no funds knowing the cheque will not be honoured

Question 11

“Representation” R v Morley

Answer 11

Representations must relate to a statement of existing fact, rather than a statement of future intention.

Question 12

“Continuing effect” explain

Answer 12

Representation by words or conduct may have a continuing effect. Eg entering a restaurant and ordering dinner represents the diner will follow normal practice and pay for the meal. If during the course of dinner the diner decides to avoid that payment, continuing representation will become false, and the obtaining of food will come within s240

Question 13

Knowledge can be established by (ASP)

Answer 13

• Admission
• Surrounding circumstances
• Propensity evidence

Question 14

“Material particular” define

Answer 14

An important, essential or relevant details or item

Question 15

“Fraudulent” define

Answer 15

Dishonest in the traditional moral sense, ranging from simple trickery to more complex schemes such as pyramid moneymaking schemes.

Question 16

Define “Device/ Trick/ Stratagem”

Answer 16

Device: plan/scheme/trick

Trick: action/scheme undertaken to fool/outwit/deceive

Stratagem: cunning plan/scheme for deceiving, or trickery

Underlying each term are the concepts of Deceit and Dishonesty.

Question 17

Define “Privilege/ Benefit”, (eg. RAWU)

Answer 17

Special right or advantage.

Eg 
Reduction in sentence for an offence
Access to medical services
Withdrawal of a charge
Using another person's gym membership card to use the gym facilities

Question 18

Distinction between Theft and Obtaining by deception

Answer 18

In theft the property is obtained without the owner’s permission and title is not passed on

Question 19

“Possession” R v Cox

Answer 19

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 20

Actual possession VS Potential possession

Answer 20

Actual possession arises where the thing in question is in a person’s physical custody or control.

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

Question 21

Special interest lien

Answer 21

Lien is a right over another’s property to protect a debt charged on that property.

Eg. A garage proprietor placing a “lien” over a vehicle repaired until payment of the debt is made.

Question 22

“Control” define, what must be proved

Answer 22

To control something means to exercise authoritative or dominating influence or command over it.

It must be proved that the defendant did in fact exercise some control over the particular property.

Question 23

How was the term representation interpreted by the courts

Answer 23

Examples of includes a 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 so it must contain a proposition of fact