Deception Flashcards
(33 cards)
s228(1)(a) CA61 - elements
Dishonestly
Without claim of right
Takes OR obtains
Any document
With intent to obtain any:
- property OR
- service OR
- pecuniary advantage OR
- valuable consideration
s228(1)(b) - elements
Dishonestly
Without claim of right
Uses OR attempts to use
Any document
With intent to obtain any:
- property OR
- service OR
- pecuniary advantage OR
- valuable consideration
s240(1)(a) CA61 - elements
By any deception
Without claim of right
Obtains
- ownership OR
- possession of OR
- control over
Any
- property OR
- privilege OR
- service OR
- pecuniary advantage OR
- benefit OR
- valuable consideration
Directly or indirectly
s240(1)(b) CA61
By any deception
Without claim of right
In incurring any
- debt OR
- liability
Obtains credit
s240(1)(d) CA61
By any deception
Without claim of right
Causes loss to any other person
Definition of obtain
Means obtain or retain for himself, herself or for any other person
Definition of 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
Definition of service
Service is limited to financial or economic value and excludes privileges or benefits
Case law - defines pecuniary advantage
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”.
Case law - defines 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”
Definition of dishonestly
Means done or omitted without a belief that there was express or implied consent, or authority for, the act or omission from a person entitled to give such consent or authority.
Definition of claim of right
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 which the offence is alleged to have been committed.
Definition of taking
For tangible property, theft is committed by a taking when the offender moves the property or causes it to be moved
Case law - uses or attempts to use
Hayes v R
- attempt is related to the use, not whether anything is obtained
- the line between an attempt and a use is not easy to define
Full case law:
“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 and attempted use”.
Definition of a document (know, not needed verbatim)
(a) any paper or other material used for writing or printing that is marked with matter capable of being read
(b) any photograph, or any photographic negative, plate, slide, film or microfilm, or any photostatic negative
(c) any disc, tape, wire, sound track, card, or other material or device in or on which information, sounds, or other data are recorded, stored (whether temporarily or permanently), or embodied so as to be capable, with or without the aid of some other equipment, of being reproduced
(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
(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
Case law - document definition
R v Misic
Essentially a document is a thing which provides evidence or information or serves as a record
(use for definition of document)
Definition of deception
(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; 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
Definition of representation
It must be capable of being false so it must contain a proposition of fact
What is required to be proved (s240)
- 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 a material particular
Case law - intention to deceive
R v Morley
An intention to deceive requires that the deception is practiced in order to deceive the affected party. Purposeful intent is necessary and must exist at the time of the deception
Definition of material particular
An important, essential or relevant detail or item.
e.g. a matter will be a material particular if it is something important or something that matters
Case law - reckless
Cameron v R
Recklessness is established if:
The defendant recognised that there was a real possibility that:
- his or her actions would bring about the proscribed result, and/or
- that the proscribed circumstances existed, and
Having regard to that risk those actions were unreasonable.
R v Tipple
The offender must know of, or have a conscious appreciation of the relevant risk, and it may be said that it requires a “deliberate decision to run the risk”.
Definition of omission
An omission is inaction, i.e. not acting. A conscious decision not to do something or not giving thought to the matter at all.
Definition of device
A plan, scheme, or trick
