Deception Flashcards
1
Q
Crimes Act definition of Obtain
A
S217 C.A61
(In relation to any person) means obtain or retain for himself or herself or for any other person.
2
Q
Crimes Act definition of Property
A
S2 C.A61
Includes any real and personal property, and 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.
3
Q
Service defintion
A
Service is limited to financial or economic value and excludes privileges or benefits
4
Q
What is the case law that explores the definition of Pecuniary advantage?
A
Hayes v R
5
Q
Hayes v R - what held in relation to pecuniary advantage?
A
A pecuniary advantage is “anything that enhances the accused financial position. It is that enhancement which constitutes the element of an advantage”
6
Q
Pecuniary Advantage definition
A
Hayes v R - anything that enhances the accuseds financial position. It is that enhancement which constitutes the element of an advantage.
7
Q
Valuable consideration definition
A
R v Hayes - anything capable of being a valuable consideration, whether monetary kind or of any other kind; in short, money or moneys worth.
8
Q
Hayes v R - what held in relation to valuable consideration?
A
A Valuable Consideration is anything capable of being a valuable consideration, whether monetary kind or of any other kind; in short, money or moneys worth.
9
Q
Examples of a valuable consideration
A
- Monetary payment in return for goods or services
- Goods given in return for services provided
- Issuing a false invoice to receive payment for goods never supplied.
10
Q
Crimes Act definition of Dishonestly
A
217 CA.61
(In relation to 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 permission.
11
Q
What was held in Hayes v R in relation to dishonesty
A
- the objective facts of a case may be such that the jury can infer that the defendant had a dishonest mind unless he / she can prove a reasonable doubt on the basis of a relevant but mistaken belief. Therefore, the question is whether the belief is actually held not whether that belief is reasonable. However reasonableness may be relevant as evidence on the issue of whether it was actually held.
12
Q
What two types of belief can be held to negate dishonesty?
A
- That the act or omission was expressly, or impliedly, consented to by a person entitled to give consent or
- That the act or omission was authorised by a person entitled to authorise it.
13
Q
Crimes Act Definition of Claim of Right
A
S2 CA.61
(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.
14
Q
Does the belief have to be reasonable when proving Claim of Right?
A
The belief as to a proprietary or possessory right in the property 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.
15
Q
What did the Crimes Ammendment Act ammend in relation to Claim of Right?
A
Previously the defendant was required to have a belief “that the act was lawful” where the revised wording of the definition requires that the defendant have, at the time of the act alleged to constitute the offence, a belief in a proprietary or possessory right in the property in relation to which the offence is alleged to have been committed.
16
Q
What is the nature of belief required in relation to Claim of Right? (First point)
A
The belief must be a belief in the proprietary or possessory right in the property. Relates to an element of ownership or a right to take / retain possession of and can include intangible property (in appropriate cases.
17
Q
What is the nature of belief required in relation to Claim of Right? (Second point)
A
The belief must be about rights to the “property in relation to which the offence is alleged to have been committed”.
A belief that the defendant had proprietary or possessory rights in relation to other property and was therefore in some way justified in taking or dealing with the property in regard to which the offence was alleged to have been committed.
18
Q
What is the nature of belief required in relation to Claim of Right? (Third point)
A
The belief must be held at the time of the conduct alleged to constitute the offence.
19
Q
What is the nature of belief required in relation to Claim of Right? (Fourth and final point)
A
The belief must be actually held by the defendant. The belief is not required to be reasonable or be reasonable held and may be based on ignorance or mistake. However, the reasonable of the belief may be relevant in determining whether the defendants assertion of the belief is credible.
20
Q
Crimes Act definition of Taking
A
“Taking” is not defined by statute. Instead the definition is taken from the definition of theft as contained within s219 CA. 61
For tangible property, theft is committed by a taking when the offender moves the property or causes it to be moved.
21
Q
What does “taking” include?
A
Ownership, possession or control that is directly or indirectly obtained and includes coming into possession with, or without, the consent of the owner.
22
Q
Document definition - 217(a)
A
Any paper or other material used for writing or printing that is marked with matter capable of being read.
23
Q
Document definition - 217(b)
A
Any photograph, or any photographic negative, plate, slide, film, or microfilm, or any photostatic negative
24
Q
Document definition - 217(c)
A
Any disc, tape, wire, sound track, card, or other material or device in or on which information, sounds or other data are recorded, stored, or embodied so as to be capable, with or without the aid of some other equipment, of being reproduced
25
Document defintion - 217(d)
Any material by means of which information is supplied, whether directly or by means of any equipment, to any device used for recording or storing or processing information; or
26
Document definition - 217(e)
Any material derived, whether directly or by means of any equipment, from information recorded or stored or processed by any device used for recording or storing or processing information
27
What is the short definition for document?
R v Misic - Essentially, a document is a thing which provides evidence or information or serves as a record.
28
R v Misic (document)
Essentially, a document is a thing which provides evidence or information or serves as a record.
29
What happens to the definition of a 'document' as technology changes?
This does not change the fundamental purpose of the technology nor a conceptual appreciation of that function. Legislation must be interpreted with that in mind.
30
What must the prosecution prove in relation to "uses" or "attempts to use"?
The prosecution must prove that the offender used (or attempted to use) the document with the intent to obtain the property, service, valuable consideration or pecuniary advantage.
31
Hayes v R on "uses" or "attempts to use"
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 successful it may be difficult to draw a clear line between use and an attempted use.
32
Is section 72 CA 61 an offence?
S72 CA.61 is not in itself an offence of 'attempt'. It is simply a definition of attempt that applies to all offences.
33
S72 CA.61 attempts definition
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
34
What is a question of law (in relation to attempts)?
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.
35
What may constitute an attempt?
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 any act unequivocally showing the intent to commit that offence.
36
Crimes Act definition of 'deception' S240(2)(a) CA.61
S240(2)(a) CA.61
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 the material particular or
(ii) is reckless as to whether it is false in the material particular
37
Crimes Act definition of 'deception' S240(2)(b) CA.61
S240(2)(b) CA.61
an omission to disclose a material particular, with intent to deceive any person, in circumstances where there is a duty to disclose it.
38
Crimes Act definition of 'deception' S240(2)(c) CA.61
S240(2)(c) CA.61
A fraudulent device, trick, or stratagem used with intent to deceive any person
39
Representation definition
'Representation' is not defined but examples have included representations about
- a past or present face
- a future event
- an existing intention, opinion, belief, knowledge or other state of mind.
The 'representation' must also be false so it must contain a proposition of fact.
40
False representation definition
Under current law, the representation must be false and the defendant must know or believe that it is false in a material particular, or be reckless whether it is false. Absolute certainty is not required and wilful blindness as to falsity of the statement will suffice.
41
Is 'wilful blindness' sufficient as a false representation?
Absolute certainty as to whether it is false is not required and wilful blindness as to falsity of the statement will suffice.
42
What must be proved in false representation?
The 'falsity' must be proved.
43
What must be proved in deception?
You must prove;
- that there was an intent to deceive
- that there was a representation by the defendant
- that the representation was false; and that the defendant either;
- knew it to be false in a material particular OR
- was reckless whether it was false in the material
particular.
44
R v Morley - Intention to deceive
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.
45
There is no offence of deception committed unless...
the false statement, non-disclosure, or trick etc is made or used by the defendant for the purpose of deceiving their victim, or in the knowledge that the victim is virtually certain to be deceived.
46
What is insufficient to prove deception?
It is insufficient that the deception is done in the mere awareness, without so intending, that the victim may be deceived. That would be a case of recklessness and outside the scope of S240(2) CA.61
47
What does the recklessness in S240(2)(a) relate to?
It only relates to whether a representation is false in a material particular not the intent to deceive.
48
Who does the deception need to have been made to?
It does not matter. The deception does not need to have been made to the person actually delivering over the property, granting credit, conferring a benefit or suffering a loss. Provided the deception was the cause of the relevant conduct.
49
Recklessness definition
Cameron v R
Recklessness is established if:
(a) the defendant recognised that there was a real possibility that
(i) his or her actions would bring about the proscribed result and/or
(ii) that the prescribed circumstances existed and
(b) Having regard to that risk those actions were unreasonable.
50
What part of the "cameron test" is subjective?
Part (a) being "(a) the defendant recognised that there was a real possibility that
(i) his or her actions would bring about the proscribed result and/or
(ii) that the prescribed circumstances existed and"
'a real possibility' is substantively the same as something that 'could well happen'. The defendant needs only to have recognised that the risk is possible. They do not have to consider this risk significant.
51
What part of the "cameron test" is subjective and objective?
Part "b", being "Having regard to that risk those actions were unreasonable."
It looks at whether the defendants actions were objectively reasonably given the risk the defendant understood.
52
What was held in R v Cameron in respect of subjectivity?
The supreme court held that if the actions of the defendant have no social utility, the running of any risk subjectively appreciated is unreasonable and reckless. Where there is some social utility in the actions of the defendant, whether those actions were unreasonable will depend on "whether a reasonable and prudent person would have taken the risk".
53
In the case of recklessness with some social utility, what will be considered?
Where there is some social utility in the actions of the defendant, whether those actions were unreasonable will depend on "whether a reasonable and prudent person would have taken the risk".
54
What is an example of no social utility?
A game or 'Russian roulette' or personal violence with a risk of serious injury or death.
55
What is an example of high social utility?
A surgeon undertaking a risky but potentially lifesaving surgery.
56
Intent definition
There must be an intention to commit the act and anj intention to get a specific result.
57
What are the three ways a false representation may be made?
Orally (By spoken words)
By conduct
Documentary
58
What is an example of false representation orally (by spoken words)?
Verbally claiming to own goods that are in fact subject to a hire purchase agreement.
59
What is an example of false representation by conduct?
Representing oneself to be a collector for charity by appearing to be carrying an official collection bag.,
60
What is an example of false representation by 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.
61
What must you consider when determining whether a defendant has made a false representation?
It is possible to look beyond the literal meaning of express words used by the defendant and consider whether a particular meaning can be IMPLIED from his or her conduct.
62
R v MORLEY - representation
Representations must relate to a statement of existing fact, rather than a statement of future intention.
63
What must you analyse in relation to a false representation?
What MEANING was conveyed to the party that now complains of a false represenation.
64
Can false representation have a continuing effect?
In many cases, a representation by words or conduct may have a continuing effect.
65
Continuing effect 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 s240.
66
What is the general rule in relation to silence and representation?
The general rule is that silence or non disclosure will not be regarded as a representation, but there are exceptions.
67
What are the exceptions to silence not being considered as representation?
an example is where an incorrect understanding is implied from a course of dealing and the defendant has failed to negate that incorrect understanding.
68
What was held in Police v Dronjak in relation to silence?
It was commented that by maintaining silence in the face of a mistake known to him and by deliberately refraining from drawing the checkout assistants attention to the mistake, Dronjak had obtained title to the radio by a false pretence.
69
What must the prosecution prove in relation to knowledge of a false representation?
THe prosecution must prove that the defendant knew that the representation was false in a material particular or was reckless as to its falsity. Absolute certainty is not required.
70
How can 'knowledge' be established?
- An admission
- Implication from the circumstances surrounding the event
- Propensity evidence
71
'Material particular' definition
It is not defined in the crimes act and can be given its usual meaning of 'an important, essential or relevant detail or item'
72
What was held in R v Mallett regarding the definition of a 'material particular'?
That "A matter will be a 'material particular' if it is something important or something that matters"
73
Omission definition
'Omission' is not defined in the Crimes Act.
An omission is inaction. i.e not acting.
It can either be a conscious decision not to do something or not giving thought to the matter at all.
74
What must you prove under S240(2)(b) 'duty to disclose'
You must prove
- that there was some material particular that was not disclosed
- that the defendant was under a duty to disclose and
- that the defendant failed to perform that duty
75
Where will a 'duty to disclose' offence arise?
It will often originate in civil law e.g. where the parties are in a contractual relationship
76
What does S240(2)(c) CA 61 cover?
this section concerns a fraudulent device, trick, or strategem used with intent to deceive any person.
This provision introduces a general; criminal offence of fraud and effectively covers any form of fraudulent conduct.
77
What must accompany fraudulent conduct under S240(2)(c) ??
Like with other parts of S240(2), the conduct must be accompanied by an intent to deceive.
78
Under S240(2)(c) what must the scheme or trick be?
It must be fraudulent and here this means dishonest in the traditional moral sense.
79
What circumstances must exist under S240(2)(c) ?
The circumstances of fraud can range from simple trickery to more complex schemes such as pyramid money making schemes.
80
Definition of 'device'
Oxford dictionary definition:
A 'plan, scheme, or task'
81
Definition of trick
Oxford dictionary definition
An action or scheme underaken to fool, outwit or deceive
82
Definition of 'stratagem'
a cunning plan or scheme especially for deceiving an enemy, or trickery
83
What underlies the definitions of 'device' 'trick' or 'stratagem'
Deceit and dishonesty
84
How can ownership, possession or control be obtained?
Either directly or indirectly
85
Definition of 'privilege' or 'benefit'
both "privilege" and "benefit" are not limited to a privilege or benefit of a pecuniary nature. Both these words mean 'a special right or advantage'.
86
Examples of 'privilege' or 'benefit'?
- Using another persons gym membership card so that you can use the gym facilities
- Access to medical services
- The withdrawal of an assault charge
- A reduction in sentence for an offence
87
If the 'benefit' or 'privilege' is not monetary, do you need to prove financial loss or injury to the person defrauded?
No
88
When are goods obtained by a defendant?
They are obtained by the defendant if the goods come under their control, even though they may not have physical possession of them.
89
Are goods still obtained if received from a third party?
Yes. Property may still be 'obtained' if the deception made to one person means that the property is then actually obtained from another person, provided that the deception operated on the mind of the person giving up the property.
90
Example of obtaining goods?
Where there is an agreement that the sending of some item (e.g. a cheque by post) shall complete a transaction, the 'obtaining' is complete at the time of posting.
91
What is the distinction between theft and obtaining by deception?
The important distinction is that in theft, the property is obtained without the owners permission and title is not passed on.
92
Ownership definition
Ownership is synonymous with the concept of title
In certain circumstances, a person parting with goods not only relinquishes possession to the other person, but also passes on a legal right of ownership to the goods.
93
Can you possess something without owning / having title to it?
One person often holds possession and ownership at the same time. However, you can possess something without having title to it (e.g. driving some elses car)
94
Possession definition
Frequently, in practice, both 'title to' or ownership of and possession are passed to the offender. In such cases the person parting with the good intends to give the other person both possession and ownership.
95
An example of receiving possession and ownership
Would be the purchase of goods using a valueless cheque. The offender received both possession fo the goods and title to them.
96
Can title transference be avoided in certain circumstances?
yes.
97
"Ideal" possession
To prove possession or "Ideal" possession, you must prove that you must satisfy both the physical and mental elements of possession (R v COX)
98
R v COX - Possession
Possession involves two elements.
The first, the physical element, is actual or potential custody or control. The second, the mental element is a combination of knowledge and intentention; knowledge in the sense of an awareness by the accused that the substance is in his possession and an intentipon to exercise possession.
99
Special Interest
It is sufficient if the person from whom the goods were obtained had some special property or interest in the goods without having actual ownership of them.
100
A special interest 'lien'
A lien is a right over anothers property to protect a debt charged on that property.
101
What was held in R v Cox (Special interest lien)
It was held that the owner of the car who by false pretence induced the garage proprietor to give up his lien over and possession of the car (by allowing the owner to take it away) had obtained the vehicle by false pretences.
102
Control definition
Control means to exercise authoritative or dominating influence or command over it.
103
Does the defendant need to possess an item to have control over it?
Ordinary usage and the dictionary definition show that a defendant does not need to possess something in order to control it.
104
What else has the term 'control' been explored and considered in the context of?
Receiving. And while there are differences between the offences, the analysis should also apply for this offence.
105
Is the property being located in a premises controlled by the defendant sufficient?
No. It is insufficient that the dishonestly obtained property was found at the premises of which the defendant had control. It must be proved that the defendant did in fact exercise some control over the particular property.
106
What does the prosecution NOT need to prove in relation to control?
The prosecution does not need to prove that the accused was in actual possession of the property. It may be sufficient that the accused exercised control over the property through an agent.
107
Pecuniary advantage definition
Economic or monetary advantage
108
Examples of pecuniary advantage
- Cash from stolen goods
- Clothing or cash obtained by a credit or EFTPOS card
- A discount (by using a student ID card)
- Avoiding or deferring payment of debt.
109
What did R v Dakers prove in relation to 'use'?
That while the purpose may be unsuccessful the 'use' was not. In that they had presented the ticket, knowing that it had already been presented and cashed in.
110
Debt definition
Money owing from one person to another
111
Liability incurred definition
Means a legally enforceable financial obligation to pay, such as the cost of a meal
112
What must a debt or liability be?
Legally enforceable.
This means that if the contract is void or illegal, there will be no offence.
113
Under section 240(1)(b) what must you prove?
You must prove the identity of the suspect and that they:
- by deception and without claim of right
- In incurring any debt or liability
- Obtained credit
114
What must there be between the debt or liability and the obtaining of credit?
There must be an obtaining of credit AS A RESULT of incurring any debt or liability. That is, there must be a causative link between the debt or liability and the obtaining of credit.
115
What does 'obtaining credit' require?
It requires a debtor to gain a creditors agreement to the deferred payment of a debt or obligation. The credit obtained must be in respect of a monetary obligation.
116
Obligation to pay case law
Fisher v Raven
Credit refers to the obligation on the debtor to poay 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.
117
Time to pay definition
Credit may involve varying periods of time. Credit can be obtained over lengthy periods, as in loan agreements, or for a matter of minutes, such as the time taken to consume a meal or receive a haircut.
At the end of the period of credit, payment is expected to be made.
118
Credit - 3rd person
While Adams on Criminal law outlines the need for the credit to be obtained by the defendant personally. The broader definition under s217 CA 61 outlines the sufficiency of the defendant obtaining the extension of credit to another person.
119
Examples of credit being obtained
- Obtaining money or a loan
- Extending existing overdraft facilities
- Renting or leasing a dwelling
120
Gaining credit - intention to deceive
Gaining credit is not in itself unlawful unless it is accompanied by an attempt to deceive.
121
What is the timeframe of the inention to deceive in relation to credit?
The intention to deceive is essential and must exist at the time when the deception is perpetrated. So when the credit is obtained, a later decision not to repay is insufficient.
122
R v Mckay - Intention to deceive
On appeal it was held that the credit had been obtained on booking in but, at that time, the accused did not possess an intent to deceive.
123
Intangible thing definition (credit)
Credit is an intangible thing. Credit obtained must be in respect of a monetary obligation.
124
Continuing representations (credit)
A representation, whether by words or conduct, may be of continuing effect. E.G entering a restaurant and ordering a meal would be a representation that one will pay for the meal at the appropriate time. If during the course of the meal, the diner decides to avoid payment, the continuing representation of an intention to pay will become false and any subsequent obtaining of food will come within s240.
125
What is not included as 'deceit' when it comes to non-payment of debt?
Intent to deceive is not disclosed merely because there is:
- Delay or non-payment of the debt, or
- An inability to perform a bona fide intention
E.g, the incur a debt and then be unable to pay through unforeseen circumstances, loss of money or oversight is not deceit.
126
What is not included as 'deceit' when it comes to payment withheld?
Intent to deceive does not exist where payment is withheld because of genuine dissatisfaction with the service.
E.G Where payment of the cost of a meal is refused because of the quality of the food (made prior to the food being wholly consumed)
127
Can hire purchase be deception?
Yes. If goods are obtained on hire purchase by false representation, the offence of deception is committed.
128
If the offender obtains goods by hire purchase and sells the goods to another, what offence do they commit?
They commit the offence of theft by conversion.
129
Does the defendant obtain title if they obtain goods by hire purchase and sell those goods to another?
No, the defendant never receives title for goods fraudulently obtained on hire purchase.
130
Induces (Oxford dictionary) definition
To persuade, bring about or give rise to
131
What does Simmester & Brookbanks suggest regarding the definition of 'induces'?
Simmester and Brookbanks suggests the scope of the induced conduct is very wide.
Another person (who need not be the immediate victim of the deception) must be induced to do any of "deliver over, execute, make, accept, endorse, destroy or alter" the document or thing
132
Proof of inducement
The inducement should be proved whenever possible by direct evidence from the person alleged to have been defrauded.
133
In practice, how is inducement proved?
In practice, the victim of the deception is usually questioned to elicit answers proving:
- That the false representation was believed, and
- That it was the consequence of that belief that the victim parted with his or her money.
134
What was held in R v Granger with regard to Inducement?
It was held that in the absence of direct evidence, however, a reasonable inference can be drawn in certain circumstances, that the owner was induced by the representation to part with his money.
135
R v Laverty - Inducement
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.
136
Discussion around R v Laverty and what this means with regard to Inducement
If the particular false representation is not believed by the person to whom it is made, but he nevertheless still parts with his property as a consequence of it, it cannot be said that the property was obtained by a deception.
In such circumstances, the act was not induced by a belief in the truth of the representation.
137
Examples of circumstances where the offence including "inducement" is not met
If the owner parts with his or her property solely as a means of trapping the person who made the false representation and doesn't believe the representation.
In this case, liability for attempted obtaining by deception may be disclosed.
138
Is it deception if the person to whom the representation is made, believes it to be true, but is not induced by it to part with the property?
An attempt may be disclosed but not the offence of obtaining by deception itself.
139
Causes definition
The defendant, or the act of the defendant, must be the substantial and operative cause of the delivery, execution etc, of any document capable of deriving pecuniary advantage.
The accused must cause the loss.
140
Deliver over definition
To surrender up someone or something
141
Execute definition
to put a course of action into effect
142
Endorse definition
To write or sign a document
143
Alter definition
to change in character or composition, typically in a comparatively small but significant way.
144
Accept definition
To receive something
145
Thing definition
A "Thing" is a broad and encompassing concept. However, the "thing" must be tangible and capable of being used to derive a pecuniary advantage.
146
Loss definition
In most cases will involve financial detriment to the victim and is not defined by statute
147
What must the loss caused by deception be?
It must be int he nature of a direct loss.
148
What is not included in the definition of 'loss'?
Indirect losses, such as expectation loss (loss of a bargain) and loss of anticipated future profits.
149
Will all forms of loss come within S240(1)(d)
Not all forms of loss will come within the section. Property or valuable things will be the subject matter of "loss", but it is less clear where a loss concerns something that is non-quantifiable.
150
What was concluded in the case R v Morley in relation to loss?
It was concluded that "the loss alleged by the victim must have been induced by, or caused 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"
151
What will the court consider in relation to the loss?
They considered that the loss flowing from the deception should be assessed by the extent to which the complainants position before the deception had been diminished or impaired.
152
Who must suffer the loss under S240(1)(d)?
There is no requirement in this section that the person who suffers the loss be the person who is deceived.
153
What does the definition of 'persons' encompass?
It provides a wide definition and incorporates not only real people, but also companies and other organisations.
154
Persons definition
S2 CA.61
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.
155
What must be proved under S240(1)(d) (Causing loss by deception)?
In R v Morley, the court said the prosecution must prove that:
- The loss was caused by a deception
- It was reasonably foreseeable some more than trivial loss would occur, but
- Need not prove the loss was intentionally caused.
Thus, there must be loss to "any other person", but there is no requirement that there be any benefit to anyone.
156
Punishment for deception offences
S241 CA. 61
Everyone who is guilty is liable as follows:
(a) loss caused / value obtained exceeds $1000 - 7 years imprisonment
(b) loss caused / value obtained exceeds $500 but not $1000 - 1 year imprisonment
(c) loss caused / value obtained under $500 - 3 months imprisonment
157
What is the benefit of propensity evidence?
Evidence showing a person has a propensity to act a certain way or to have a particular state of mind may be admissible in a prosecution for causing loss by deception.
Propensity evidence may also be used to disprove a defence of mistake or innocent intention.
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S40(1)(b) Evidence Act - What does propensity evidence not include?
Propensity evidence 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.
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Propensity rule S40(2) Evidence Act
A party may offer propensity evidence in a civil or criminal proceeding about any person.
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Propensity rule S40(3) Evidence Act
However, propensity evidence about
(a) a defendant in a criminal proceeding may be offered only in accordance with section 41 or 442 or 43, whichever section is applicable, and
(b) a complainant in a sexual case in relation to the complainants sexual experience may be offered only in accordance with Section 44.
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Propensity rule S40(4) Evidence Act
Evidence that is solely or mainly relevant to veracity is governed by the veracity rules set out in section 37 and, accordingly, this section does not apply to evidence of that kind.
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Propensity rule (prosecution offering) S43(1) Evidence Act
The prosecution may offer propensity evidence about a defendant in a criminal proceeding only if 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.
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What may the judge take into consideration when assessing the probative value of propensity evidence? S43(3)
(a) the frequency in which the acts, omissions, events or circumstances have occurred;
(b) the connection in time between the acts, omissions, events or circumstances
(c) The extent of similarity
(d) the number of persons making allegations against the defendant
(e) Whether the allegations described in paragraph (d) may be the result of collusion or suggestibility
(f) the extent to which they are unusual
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What must the judge take into consideration when assessing the probative value of propensity evidence? S43(2)
The nature of the issue in dispute
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When assessing the prejudicial effect of evidence on the defendant, what must the judge consider?
(a) Whether the evidence is likely to unfairly predispose the fact-finder against the defendant; and
(b) Whether the fact-finder will tend to give disproportionate weight in reaching a verdict to evidence of other acts or omissions.
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When is propensity evidence admissible?
Propensity evidence, whether on previous or later occasions to the offence charged, is admissible in cases of deception where there is a sufficiently strong connection between the offences.
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Examples of admissibility of propensity evidence
Evidence that other cheques drawn by the defendant were dishonoured may be evidence of the circumstances in which the cheque that is the subject matter of the charge was drawn, and therefore directly relevant to the defendants state of mind (intent) when he or she issued it.
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What is evidence of propensity subject to?
admissibility under s7(3)
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S7(3) in relation to evidence of propensity evidence. Evidence is relevant if ...
Evidence is relevant if it has a tendency to prove or disprove anything that is off consequence to the determination of the proceedings
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What did R v Sharma conclude in relation to propensity evidence admissibility
That the ultimate issue is the degree to which the probative value of the evidence outweighs its prejudicial effect.
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Definition of title
"A right or claim to the ownership of the property" and in other words it simply means a legal right to the property.
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What is the basic rule around title?
A person cannot give better title to property than they own. Whether a seller has no rights of ownership to the goods and who acts without the authority of the true owner, purports to pass title to a buyer, that buyer can receive no greater interest in the goods than the seller had. Section 149 refers.
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Section 149 Contract and Commercial Law Act 2017 - Sale by person who is not the owner (title)
(1) This section applies if goods are sold by a person who
(a) is not the owner of the goods; and
(b) does not sell the goods under the authority or with the consent of the owner.
(2) the buyer acquires no better title to the goods than the seller had, unless the owner of the goods is by the owners conduct precluded from denying the sellers authority to sell.
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What is the difference between dishonesty and deceit?
There is a material difference between theft and obtaining by deceit.
A thief never gets title. However, a person, who by deception or other deceit, induces another to hand over the goods (and title), title will pass. Note however, that there may be limitations on this title.
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What is voidable title?
A title obtained by deception, fraud, duress or misrepresentation is called a 'voidable title'. This means that the title can be voided by the seller.
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How long is title voidable?
Until the title is voidable, the defrauder has voidable title, and can confer good title on anyone who acquires the goods from him or her in good faith and for value.
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Section 151Contract and Commercial Law Act 2017 - voidable title
(1) This section applies if
(a) A seller of goods has voidable title to the goods; but
(b) the sellers title has not become void at the time of the sale.
(2) The buyer acquires a good title to the goods if the buyer buys the goods in good faith and without notice of the sellers defect of title.
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Example of voidable title
The complainant believes an altered gift card given to him to be good and valuable, so he is happy to hand over not only possession of the goods but title to them as well. The result is that the offender obtains title, albeit a voidable title.
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What is the following scenario an example of:
B buys a car from A and pays cash for it
In this situation, B gains possession of the car and title to it
A intends to pass his title to B or 'property in' the car.
Genuine Sale (passing on title)
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What is the following scenario an example of?:
B steals or unlawfully takes a car from A
In this situation, B gains possession of the car but not the title, as A did not intend to pass the title on
Unlawful taking / never receiving title
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What is the following scenario an example of:
A agrees to sell a vehicle to B. B agrees to pay A the sum of $2000 in total (4x instalments of $500).
A has good title to the vehicle and passes it to B in accordance with the terms of their agreement.
B only pays one instalment of $500.
Title remains with B although it is voidable.
To void this title and reclaim ownership, A can bring a claim against B in the Small claims court.
If B has on sold the vehicle to C then C receives good title to the vehicle provided they bought the vehicle in good faith.
Civil action (title)
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What is the following scenario an example of:
B meets with A with the intention of viewing A's vehicle for sale.
B has no intention or means to pay for the vehicle.
B convinces A that he is genuine and that he will pay for the vehicle the following day, providing A with false details of himself and leaves with the vehicle.
B makes no further contact with A and keeps the vehicle.
In this situation B obtains possession of the car and title because A intended to pass over title.
However because A's consent has been obtained by deception, B's title can be regarded as voidable.
B has a title until it is voided by A.
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How must you void title?
You must notify police of the deception and must take civil steps to void the title.
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Section 151 Contract and commercial law - voidable title
Where the seller of goods has voidable title thereto, but his title has not been voided at the time of the sale, the buyer acquires a good title to the goods, provided he buys them in good faith and without notice of the sellers defect of title.
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Section 152(2) Contract and Commercial law act - reverting of property in stolen goods on conviction of the offender
Despite any other enactment, the property in goods obtained by fraud or other wrongful means that does not amount to theft does not revert in the person who was the owner of the goods (or that persons personal representative) by reason only of the conviction of the offender.
This means even though someone is convicted of fraud, if they have on sold the vehicle to another person (who then has good title) then that person will keep ownership of the item.
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What does S246(4) Crimes Act 1961 (Receiving after restoration to owner) outline.
This outlines a 'receivers' liability when receiving property obtained by deception. In that, a receiver cannot be convicted of receiving from a fraudulent offender who has a voidable title to goods dishonestly obtained by means of a deception.
Consider whether the receiver is liable as a party to the false representation or obtaining by deception instead.
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When can a "receiver" be liable (title)
If the voidable title has been voided by a complainant, leaving the fraudulent offender with mere possession only, then a legal title has not been acquired within the meaning of this section (246(4) and a subsequent receiving of those goods is an offence.
The receiver can be charged if they received it in bad faith or knew of the defect in title.
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When someone obtains goods via hire purchase do they receive title?
No, title is not obtained until the full amount is paid. If a deposit is made on a hire purchase through false representation then possession only is obtained.
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What does the difference between theft and obtaining by deception hinge on?
The concept of possession and ownership.
Because in obtaining by deception the owner or person with a special interest in the property has freely given possession and / or owner ship of the property. (Even though this might be voidable title only)
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Theft by conversion
Where goods are obtained by false representation and the offender later sells the goods to another, they commit theft by conversation.
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There may be an offence under S220 where the defendant has intentionally:
- Failed to account to any other person for property received by the defendant
- Failed to account to any other person for the proceeds of property received by the defendant
- Dealt with property received by the defendant otherwise than in accordance with the requirements of some other person
- Dealt with the proceeds of the property received by the defendant otherwise than in accordance with the requirements
