Deception

Question 1

What offence is under section 228(1)(a)

Answer 1

Dishonestly taking or using a document
Everyone who with intent to obtain any property, service, pecuniary advantage, or valuable consideration dishonestly and without claim of right, takes or obtains any document

Question 2

What offence is under section 228(1)(b)

Answer 2

Everyone who with intent to obtain any property, service, pecuniary advantage or valuable consideration dishonestly and without claim of right, uses or attempts to use any document.

Question 3

Define obtain

Answer 3

Section 217 CA 1961
Obtain, in relation to any person, means obtain or retain for himself or herself or for any other person

Question 4

Define property

Answer 4

Section 2 Crimes Act 1961
Property includes any real and personal property, any estate or interest in any real or personal property, money, electricity, and any debt and anything in action and any other right or interest

Question 5

Define service

Answer 5

Service is limited financial or economic value and excludes privileges or benefits

Question 6

Define pecuniary advantage

Answer 6

Hayes v R
A pecuniary advantage is “anything that enhances the accusers financial position. It is that enhancement which constitutes the element of advantage.

Question 7

Define valuable consideration

Answer 7

Money or moneys worth.

Question 8

Define dishonestly

Answer 8

Did honestly in relation to any act or omission, means done or omitted without a belief that there was expressed or implied consent to, or authority for, the act or omission from a person entitled to give such consent or authority.

Question 9

Define without claim of right

Answer 9

Section 2 CA 1961
Claim of right 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

Question 10

Define Document

Answer 10

R v misic
Essentially a document is a thing which provides evidence of information or serves as a record

Question 11

Define use or attempts to use

Answer 11

Hayes v r
An unsuccessful use of a document is as much use as a successful one.an unsuccessful use must not be equated conceptually with an attempted one. The concept of attempt relates to use not to the ultimate obtaining of a pecuniary advantage, which is not a necessary element of the offence. Because the use does not have to be a successful it may be difficult to draw a clear line between use and attempted use.

Question 12

Definition of attempts

Answer 12

1. Everyone who, having an intent to commit an offence, does or omits an act for the purpose of accomplishing his objective, is guilty of an attempt to commit the offence intended, whether in the circumstances it was possible to commit the offence or not.
2. The question whether an act done or omitted with intent to commit an offence is or is not only preparation for the commission of that offence, and too remote to constitute an attempt to commit it, is a question of law.
3. An act done or omitted with intent to commit an offence may constitute an attempt if it is immediately or proximately connected with the intended offence, whether or not there was an act unequivocally showing the intent to commit that offence.

Question 13

Obtaining by deception or loss by deception

Answer 13

Section 240 (1), CA 1961
Everyone is who by any deception and without claim of right,
(a) obtains ownership or possession of, or control over, any property or any privilege, service, pecuniary advantage, benefit or valuable consideration directly or indirectly; or
(b) in incurring any debt or liability obtains credit; or
(c) induces or causes any other person to deliver over, execute, make, accept, endorse, destroy, or alter any document or thing capable of being used to derive a pecuniary advantage; or
(d) causes loss to any other person.

Question 14

Obtains by deception or causing loss by deception Sec 240(1A)

Answer 14

Every person is liable to imprisonment for a term not exceeding 3 years who without reasonable excuse, sells, transfers, or otherwise makes available any document or thing capable of being used to derive a pecuniary advantage knowing that, by deception and without claim of right, the document or thing was, or was cause to be, delivered, executed, made, accepted, endorsed, or altered.

Question 15

Definition of Deception per section 240 (2) CA 1961

Answer 15

(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 a false 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 16

R v Morley intent

Answer 16

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 17

Representation r v Morley

Answer 17

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

Question 18

Continuing effect

Answer 18

Representation by words or conduct may have a continuing affect. For example, entering a restaurant and ordering dinner represents that the diner will follow the normal practice and pay for the meal. If during the course of dinner the diner decides to avoid that payment, the continuing representation will become false, and the obtaining of food will come within 240

Question 19

Knowledge

Answer 19

Means knowing it correctly believing, may believe something wrongly but cannot know something that is false.

Question 20

Particular

Answer 20

An important, essential or relevant detail or item.
R v Mallet - a matter will be a material particular if it is something important or something that matters.

Question 21

Omission

Answer 21

Not acting, I’m action it can be a conscious decision not to do something. Or not giving thought to the matter

Question 22

Device

Answer 22

A plan, scheme or trick

Question 23

Trick

Answer 23

An action or scheme undertaken to fool, outwit or deceive

Question 24

Stratagem

Answer 24

A cunning plan or scheme especially for deceiving an enemy or trickery

Question 25

Obtaining property by deception

Answer 25

Section 240(1)(a) CA 1961
Everyone who by any deception and without claim of right
(a) obtains ownership or possession of, or control over, any property, or any privilege, service, pecuniary advantage, benefit, or valuable consideration directly or indirectly

Question 26

Privilege or benefit

Answer 26

are not limited to of a pecuniary nature. Both of these words mean a special right or advantage
eg. Using another persons gym membership
Access to medical services

Question 27

Possession

Answer 27

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 28

Control

Answer 28

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

Question 29

Pecuniary advantage

Answer 29

Economic or monetary advantage
Cash from stolen goods
Clothing or cash obtained by a credit or eftpos card

Question 30

Obtaining by credit

Answer 30

240(1)(b) CA 1961
Everyone who by any deception and without claim of right
(b) in incurring any debt or liability, obtains credit

Question 31

Debt or liability

Answer 31

Debt - money owing from one person to another
Liability- means legally enforceable financial obligation to pay such as the cost of a meal

Question 32

Must prove under section 2401(b)

Answer 32

Identity of the suspect and that they
By deception and without claim of right
In incurring any debt or liability
Obtained credit

Question 33

Cameron v R

Answer 33

Recklessness is established if
(a) the defendant recognised that there was a real possibility that:
- his or her actions would bring about the proscribed result and/or
- the proscribed circumstances existed; and
(b) having regard to that risk those actions were unreasonable.

Question 34

Fisher v Raven

Answer 34

Credit referral 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.