14. Deception Flashcards
Define “obtains”
Obtain or retain for themselves or any other person.
Includes when a person “retains” items obtained by other means (lawfully or not).
Define “property”
Includes real and personal property, and 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.
Define “service”
Service is limited to financial or economic value and excludes privileges or benefits (R v Cara).
Define “pecuniary advantage”
Cite relevant case law
Provide examples
Economic or monetary advantage.
Hayes v R - Anything that enhances the accused’s financial position.
Includes: cash stolen from goods, clothing/cash obtained by credit card/discounts/avoiding payment of debts.
Define “valuable consideration”
Cite relevant case law
Provide examples
Hayes v R
Anything capable of being valuable consideration - whether of a monetary kind or any other.
In short, money, or money’s worth.
For example: monetary payment in return for goods, goods given in return for services, issuing false invoice to receive payment of goods not delivered.
Define “dishonestly”
What belief needs to be held?
An act or omission done without belief in express/implied consent /authority to do the act from someone entitled to give such consent.
Belief does not need to be correct or reasonable, just held on an “honest belief”
Define “claim of right”
What belief needs to be held?
A belief at the time of the act in a proprietary or possessory right in the property.
May be based off ignorance or mistake.
Belief does not need to be correct or reasonable, just held on an “honest belief”
Define “document”
Cite relevant case law.
Any item that provides evidence of information or serves as a record (such as a computer disk).
R v Misic.
Define “deception” [s240(2)CA61]
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 material particular, OR
(ii) is reckless as to whether it is false in material particular, OR
(b) an omission to disclose to material particular with intent to deceive any person (where a duty to disclose exists) OR
(c) a fraudulent device, trick, strategem used with intent to deceive any person.
Define “representation”
Cite the relevant source.
Must be capable of being false so it must contain a proposition of fact.
Simester and Brookbanks
Define “knowing”.
Cite the relevant source.
Correctly believing - Simester and Brookbanks
Define “material particular”
Something important, or something that matters.
Define “recklessness”
A conscious taking of an unjustifiable risk.
Define “omission”
Inaction. Can either be a conscious decision, or not giving any thought to the matter.
Define “privilege/benefit”
Provide examples
A special right or advantage, not limited to benefits of a pecuniary nature.
I.e. using another person’s gym membership, access to medical services? Withdraw charge of assault, reduction in sentence for an offence.
Define “control”
The power of direction, command.
Define “debt”
Money owing from one person to another. Must be legally enforceable.
Define “liability”
Provide an example
A legally enforceable financial obligation to pay.
I.e. cost of a meal at a restaurant.
Define “credit”
Give examples
An obligation on the debtor to pay or repay.
I.e. obtaining money on a loan, extending overdraft facilities, renting/leasing a dwelling.
Define “loss”.
Cite relevant case law
Financial detriment.
R v Morley - loss is defined by how much the complainants position has been diminished/impaired
Must be “direct loss”, not indirect - loss of anticipated profits, loss of a bargain etc.
Define “ownership”
Synonymous with “title”
Define “title”
A right or claim to the ownership of property.
Define “voidable title”
Title that can be voided by the seller.
What does s228(1)(a) of the Crimes Act 1961 relate to?
What are the elements of the offence?
What is the maximum penalty?
Examinable liability
Dishonestly taking/obtaining a document.
- Dishonestly
- Without claim of right
- Takes OR obtains
- Any document
- With intent to obtain any, property OR service OR pecuniary advantage OR valuable consideration.
7 years imprisonment.
