Causing loss by Deception and Propensity

Question 1

Section 240(1)(d) Obtaining by deception or causing loss by deception

Answer 1

Everyone is guilty of obtaining by deception or causing loss by deception who, by any deception and without claim of right

d) causes loss to any other person

Question 2

Define ‘loss’

Answer 2

In most cases will involve financial detriment to the victim

Question 3

What must the loss caused by the defendant be?

Answer 3

Must be ing the nature of a direct loss. Indirect losses, such as expectation loss (loss of a bargain) and loss of anticipated future profits are not included.

Question 4

What was concluded in R v Morley?

Answer 4

“The loss alleged by the victim must have been induced by, or caused in reliance, upon the deception.

But the deception need not be the only operative factor, so long as it played a material part in occasioning the loss”.

Question 5

Interpretation of ‘any other person’

Answer 5

Person, owner and other words of the like kind. Include the Crown and any public body or local authority, any board, society or company, and inhabitants.

Question 6

What must the Prosecution prove for Causing loss by Deception?

Answer 6

• The loss was caused by a deception
• It was reasonably foreseeable some more than trivial loss would occur but
• Need to prove the loss was intentionally caused

(no requirement to prove anyone benefitted)

Question 7

Penalties for obtaining by deception or causing loss by deception

Answer 7

a) if loss caused or value of what is obtained or sought to be obtained exceeds $1000. 7 years

b) exceeds $500 but does not exceed $1000. 1 year imprisonment

c) does not exceed $500. 3 months

Question 8

What is propensity evidence?

Answer 8

Evidence that tends to show a persons propensity to act in a particular way or have a particular state of mind, being evidence of acts, omissions, events, or circumstances with which a person is alleged to have been involved

Question 9

What does propensity evidence not include?

Answer 9

Does not include evidence of an act or omission that is -

i) 1 of the elements of the offence for which the person is being tried or

ii) the cause of action in the proceeding in question

Question 10

When may propensity evidence be offered?

Answer 10

In a civil or criminal proceeding about any person

Question 11

What specific sections can propensity evidence be offered in criminal and sexual cases?

Answer 11

Criminal - Sections 41, 42 or 43

Sexual - Section 44

Question 12

Explain when the prosecution can offer propensity evidence about a defendant in a criminal proceeding?

Answer 12

When the evidence has a probative value in relation to an issue in dispute in the proceeding which outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant

Question 13

What does the judge take into account when considering the probative value of propensity evidence? a & b

Answer 13

a) the frequency with which the acts, omissions, events, or circumstances which are the subject of the evidence have occurred.

b) the connection in time between the acts, omissions, events, or circumstances which are the subject of the evidence and the acts which constitute the offence

Question 14

What does the judge take into account when considering the probative value of propensity evidence? c & d

Answer 14

c) the extent of the similarity between the acts, omissions, events or circumstances

d) the number of persons making allegations that are the same as the subject of the offence

Question 15

What may the Judge consider when assessing the PREJUDICIAL effect of propensity evidence?

Answer 15

• whether the evidence is likely to unfairly predispose the fact-finder against the defendant
• whether the fact finder will tend to give disproportionate weight in reaching a verdict to evidence

Question 16

In simple when is propensity evidence admissible in cases of deception?

Answer 16

When there is a sufficiently strong connection between the offences

Question 17

What does ‘Adams on Criminal Law’ suggest regarding propensity evidence?

Answer 17

That the Court will decide on whether the evidence is propensity evidence. Persistent dishonesty across the board, embracing a number of offences, would not in itself bring the propensity rule into play. More likely to be used in cases involving specific offences with pattern

Question 18

When is evidence relevant under Section 7(3)?

Answer 18

When it has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding

Question 19

What was concluded in R v Sharma?

Answer 19

“The ultimate issue is the degree to which the probative value of the evidence outweighs its prejudicial effect”.