Flashcards in Deception 008 Deck (75)
Crimes Act definition of Obtain (Must Know).
s217, CA 1961
Obtain, in relation to any person, means obtain or retain for himself or herself or for any other person.
Crimes Act definition of property.
s2, CA 1961
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 pecuniary advantage (Case Law) (Must Know).
Hayes v R
A pecuniary advantage is anything that enhances the accused's financial position. It is that enhancement which constitutes the element of advantage.
Define valuable consideration.
Hayes v R
A valuable consideration is anything capable of being valuable consideration, whether of a monetary kind or of any other kind; in short, money or money's worth.
Crimes Act definition of 'dishonestly'.
s217, CA 1961
In relation to an act or omission, means done or omitted without a belief that there was express or implied consent to, or authority for, the act or omission from a person entitled to give such consent or authority.
Define Claim of right
s2, CA 1961
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.
s219(4), CA 1961
For tangible property, theft is committed by a taking when the offender moves the property or causes it to be moved.
Crimes Act definition of 'document'.
s217, CA 1961
Includes part of a document in any form, and includes:
- paper/material containing anything that can be read
- photos, negatives and related items
- discs, tapes, cards or other devices/equipment on which information is stored and can be reproduced
Case law relevant to the discussion of the element of 'uses or attempts to use any document' in s228(1)(b) (Must Know).
Hayes v R
An unsuccessful use of a document is as much use as a successful one....Because the use does not have to be successful it may be difficult to draw a clear line between use and attempted use.
Definition of 'deception' (Must Know).
s240(2), CA 1961
(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;
(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 (Must Know).
An intention to deceive requires that the deception be practiced in order to deceive the affected party. Purposeful intent is necessary and must exist at the time of the deception.
R v Laverty
It is necessary for the prosecution to prove that the person parting with the property was induced to do so by the false representation made.
Case law to define possession (Must Know).
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,
Liability definition of debt.
Money owing from one person to another.
Definition of liability.
Legally enforceable financial obligation to pay.
Fisher v Raven
Credit refers to the obligation on the debtor to pay or repay, and the time given for them to do so by the creditor. Credit does not extend to an obligation to supply services or goods.
Define 'person' in relation to S240(1)(d) as defined by S2.
Person, owner, and other words and expressions of the like kind, include the Crown and any public body or local authority, and any board, society, or company, and any other body of persons, whether incorporated or not, and the inhabitants of the district of any local authority, in relation to such acts and things as it or they are capable of doing or owning.
How is service defined in R v Cara?
Service is limited to financial or economical value and excludes privileges or benefits.
In regards to the definition of dishonesty, the defendant can raise reasonable doubt on the basis of a mistaken belief. What are the two kinds of mistaken belief?
- That the act or omission was, expressly or impliedly, consented to by a person entitled to give consent
- that the act or omission was authorised by a person entitled to authorise it.
In regards to the concept of claim of right, what is important to remember in relation to timing?
The belief must be held at the time of the conduct alleged to constitute the offence.
Legislation for attempts.
s72(1), CA 1961
Everyone who, having an intent to commit an offence, does or omits an act for the purpose of accomplishing his object, is guilty of an attempt to commit the offence intended, whether in the circumstances it was possible to commit the offence or not.
What is required to prove a deception? (Must Know).
- That there was an intent to deceive
- That there was a representation by the defendant
- That the representation was false
- That the defendant either knew it to be false in a material particular OR was reckless whether it was false in a material particular
Explain the concept of 'continuing effect' in relation to a representation. Provide an example.
In many cases a representation by words or conduct may have a continuing effect. Eg. Entering a restaurant and ordering a meal represents that the diner will follow the normal practice and pay for the meal.
As a general rule, silence or non-disclosure will not be regarded as a representation. Explain one exception to this rule with an example.
Where an incorrect understanding is implied from a course of dealing and the defendant has failed to negate that incorrect understanding.
Eg. Police v Dronjak
Defendant was shopping in department store. Told by assistant that car radio was $695.83. Told assistant he would pay at checkout. By the time he got to checkout it had two price tags, the other for $38.88 (no evidence he tampered with tags). Defendant allowed cashier to charge incorrect price.
In regards to a deception, the prosecution must prove that the defendant knew that the representation was false in a material particular or was reckless as to its falsity. How can knowledge be established?
- an admission
- implication from the circumstances surrounding the event
- propensity evidence
How is recklessness defined in R v Harney? (Must Know).
Recklessness means the conscious and deliberate taking of an unjustified risk. In New Zealand it involves proof that the consequences complained of could well happen, together with an intention to continue the course of conduct regardless of the risk.
Explain the subjective/objective test in regards to recklessness (Must Know).
It must be proved:
- That the defendant consciously and deliberately ran a risk (Subjective)
- That the risk was one that was unreasonable to take in the circumstances as they were known to the defendant (Objective - Would a reasonable person have taken the risk?)
In terms of s240(2) there must be an intent to deceive. What else is required to be shown under s240(2)(b)?
- That there was some material particular that was not disclosed
- That the defendant was under a duty to disclose
- That the defendant failed to perform that duty
Define the term 'lien'.
A right over another person's property to protect a debt charged on that property.
E.g. a garage owner has a contractors lien over the goods until the debt is paid or he voluntarily parted with the goods. The effect of this was to permit him to retain possession of the car and gave him a 'special property or interest in the vehicle'.