Deception - DEFINED

Question 1

240(2) Meaning of Deception

Answer 1

240(2) Crimes Act 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, or
b) An omission to disclose a material particular, with intent to deceive any person, in circumstances where there is duty to disclose it, or
c) A fraudulent device, trick or stratagem used with intent to deceive any person.

Question 2

Representation

Answer 2

Includes statements about a past or present fact, or about an existing intention, opinion, belief, knowledge, or other state of mind.
It must be capable of being false, so it must contain a proposition of fact.

Question 3

False Representation

Answer 3

Must be false, 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.

Question 4

False representation - What must be proved?

Answer 4

The falsity of the representation must be proved.
Carlos v R - more than one false representation, it was directed that each misrepresentation should be included in a separate count.

Question 5

Deception - What is required to be proved? (3 Things)

Answer 5

• 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.

Question 6

Case law for Intention to deceive

Answer 6

R v Morley
An intention to deceive requires that the deception is practiced in order to deceive the affected party.
Purposeful intent of deception is necessary and must exist at time of deception.

Question 7

Deception - no offence unless…

Answer 7

The false statement (representation) (240(2)(a)), non-disclosure (240(2)(b)), or trick etc (240(2)(c)) 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.

Question 8

Intention to deceive cannot include what?

Answer 8

Being reckless.

Reckless in 240(2)(a) only relates to whether a representation is false in a material particular

Question 9

Four ways a representation can be made?

Answer 9

Oral, documentary, conduct, or by any combination thereof.

Question 10

Silence and representation

Answer 10

General rule, silence or non-disclosure is not regarded as a representation (R v Waterfall) but there are exceptions when they fail to negate incorrect understanding. (Label swapping in R v Dronjak)

Question 11

Knowledge and representation

Answer 11

Prosecution must prove defendant had knowledge the representation was false in a material particular or was reckless.
Knowing or correctly believing.

Question 12

Knowledge can be established by what three things?

Answer 12

• An admission.
• Implication from the circumstances surrounding the event.
• Propensity evidence.

Question 13

Caselaw for wilful blindness equalling knowledge for a representation.

Answer 13

R v Crooks

Question 14

Define material particular

Answer 14

An important, essential or relevant detail or item.
(R v Mallett - Something that is important or something that matters)

Question 15

Define: Omission

Answer 15

An inaction, not acting. Conscious decision not to do something, or not give thought to the matter at all.

Question 16

Device, trick or stratagem

Answer 16

Covers any form of fraudulent conduct and must be accompanied by an intent to deceive.

Question 17

Define: Device, Trick & Stratagem

Answer 17

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