Deception

Question 1

Section 228(1)(a), CA 61

Answer 1

Dishonestly taking a document

Elements
-dishonestly
-without claim of right
-takes or obtains
-any document
-with intent to obtain any property/service/pecuniary advantage/valuable consideration

R v Misic document
R v collister intent
R v Cara service
Hayes v R PA/VC

Question 2

Section 228(1)(b)

Answer 2

Dishonestly using a document

Elements
-dishonesty
-without claim of right
-uses/attempts to use
-any document
- with intent to obtain any property/serivce/PA/VC

R v Misic document
R v collister
R v Cara
Hayes v R

Question 3

Section 240(1)(a), CA61

Answer 3

Obtaining by deception

Elements
-by any deception
-without claim of right
-Obtains ownership/possession/ control over any…
Service/pecuniary advantage/benefit/valuable consideration
– directly or indirectly

Question 4

Section 240(1)(b), CA61

Answer 4

Obtaining by deception

Elements
– by any deception
– without claim of right
– in incurring any debt or liability
– obtains credit

Question 5

Section 240(1)(d), CA61

Answer 5

Causing loss by deception

Elements
-By any deception
-without claim of right
– causes loss to any other person

Question 6

Obtain

Answer 6

In relation to any person means obtain or retain for himself or herself or for any other person

Question 7

Property

Answer 7

Property includes real impersonal property and any estate or interest in any real or personal property money electricity in any debt and anything in action and any other right or interest

Question 8

Service

Answer 8

Service is limited to activity having financial or economic value, and excludes privileges or benefits

Question 9

Pecuniary advantage

Answer 9

Cash/a discount/avoiding deferring debt payments

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

Question 10

Valuable consideration

Answer 10

Wider scope than pecuniary advantage

Hayes v R
Anything capable of being valuable consideration, whether of a monetary kind or of any other kind, money or moneys worth

Question 11

Dishonestly

Answer 11

In relation to an act or a mission means done or omitted without a belief that there was express or implied consent to, or authority for, the act or a omission from a person entitled to give such consent or authority

Question 12

Claim of right

Answer 12

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 maybe 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 13

Takes or obtains

Answer 13

Is not specifically defined by statute but is the same as theft

Theft is committed by taking when the offender moves the property or causes it to be move

Question 14

Uses/ attempts to use

Caselaw

Answer 14

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 ingredient of the offence. Because the use does not have to be successful it may be difficult to draw a clear line between use in attempted use

Attempt-proximal to actual offence but not complete due to inept or external factor 

Question 15

Document
(Caselaw)

Answer 15

R v Misic

Essentially a document is a thing which provides evidence or information or serves as a record

Question 16

Deception definition

Answer 16

a) a false representation with oral documentary or by conduct with a person intends to deceive any other person and..
i) knows that it is false and a material particular or
ii) is reckless as to whether it is false in a material particular
b) in emission to disclose a material particular within intent to deceive any person in circumstances where there is a duty to disclose it
C) fraudulent device trick or strategem used with intent to receive any person

Question 17

Deception-what is required to be proved?

Answer 17

-that there was intent to deceive
– that there was a representation by the defendant
– that the representation was false, and either they knew it to be false or was reckless whether it was false

Question 18

Intention to deceive Caselaw

Answer 18

R v Morley
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 19

Knowledge +caselaw

Answer 19

Knowledge can be established by
-admissions
-implication from the circumstances
-propensity evidence

Simester and brookbanks- principle of law

Knowing means “knowing or correctly believing “. The defendant may believe something wrongly but cannot know something that is false

Question 20

Duty to disclose caselaw

Answer 20

R v Love
Deliberate failure to disclose some material matter by a person who has a duty to disclose it will come within the definition of deception 

Question 21

Fraudulent device/trick/strategem

Answer 21

Device -plan, scheme, trick
Trick - action or scheme undertaken to fool outwit or deceive
strategem - cunning plan or scheme especially for deceiving an enemy or trickery

Question 22

Privilege or benefit

Answer 22

Special right or advantage

Question 23

Obtains ownership/possession/control over

Answer 23

R v Cox

Physical and mental possession:
Physical -actual and potential

Does not require actual physical control - can be potential physical

‘ 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 position, and an intention to exercise possession .

Question 24

Debt or liability,

Credit

Answer 24

Debt means money owing from one person to another

Liability means illegally enforceable financial obligation to pay e.g. cost of a meal

credit obligation on the debtor to pay or repay, and the time given for them to do so by the creditor

Question 25

Loss definition

What is to be proved? Caselaw

Answer 25

Not defined by statute but in most cases will involve financial detriment to the victim.

R v Morley
‘Prosecution must prove
- Loss was caused by deception
- it was reasonably foreseeable some more than trivial loss would occur
– space the prosecution need not prove the loss was intentionally caused

There is no requirement that there be any benefit to anyone’

Question 26

Obtaining by deception penalties

Answer 26

Under $500 - 3 months
$500-$1000 - 12 months imprisonment
Over $1000 - 7 years

Question 27

Title- theft vs dishonesty

Answer 27

Theft- title is not transferred

Dishonestly obtain - title (voidable) is transferred