Deception definitions Flashcards Preview

DDC - July 2021 - NHDJ27 > Deception definitions > Flashcards

Flashcards in Deception definitions Deck (64)
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1
Q

What is the required factor with regard to deception of an offender’s ‘intent to obtain’?

A

They must intend to obtain BY the deception.

2
Q

Obtain

A

To obtain or retain for himself or herself or for any other person.

3
Q

Property

A

Property includes any 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.

4
Q

R v Cara

A

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

5
Q

Hayes v R - pecuniary advantage?

A

A pecuniary advantage is ‘anything that enhances the accused’s financial position. It is that enhancement which constitutes the element of advantage.’

6
Q

Hayes v R - valuable consideration

A

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’.

7
Q

What are three examples of valuable consideration?

A
  1. Monetary payment for goods or services
  2. Goods given in return for services provided
  3. Issuing a false invoice to receive payment for goods never supplied
8
Q

Dishonestly

A

Acting without a belief that there was expressed or implied consent from a person in a position to give such consent or authority.

9
Q

Claim of right

A

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.

It must exist at the time the offence is commtted and must relate to property that the offence relates to.

It must be honest and genuine.

That belief may be based on ignorance or mistake of fact or of any matter of law other than the enactment against which the offender is alleged to have been committed.

10
Q

Takes

A

Moves the property or causes it to be moved

11
Q

Document

A

R v Misic - a document is a thing which contains evidence or information or serves as a record.

S217 CA - a document, or part of a document, in any form.

12
Q

Use

A

To use in any way

13
Q

Attempts

A

In having an intent to commit an offence;

Does or omits an act for the purpose of accomplishing his object;

Whether in the circumstances it was possible to commit the offence or not.

14
Q

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.

15
Q

Control over

A

Oxford dictionary: ‘The power of directing, command.’

16
Q

Privilage/Benefit

A

A special right or advantage

17
Q

Debt

A

Money owing from one person to another

18
Q

Credit

A

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

19
Q

Deliver over

Execute

Make

Accept

Endorse

Destroy

Alter

A

Deliver over - to surrender something

Execute - to put a course of action into effect

Make - (‘make’ it up)

Accept - to receive something

Endorse - to write or sign on a document

Destroy - (make it up)

Alter - to change in character or composition

20
Q

Loss

A

Financial detriment to the victim

21
Q

Morley v R in relation to loss

A

“The loss alleged by the victim must have been induced by, or caused in 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.”

22
Q

Thing capable of being used to derive a pecuniary advantage

A

Simester and Brookbanks - The thing must be tangible AND must be capable of being used to derive a pecuniary advantage

23
Q

To any other person

A

Someone other than the defendant

24
Q

What is false representation?

A

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.

25
Q

What are the three points that are required to be proved with regard to deception?

A
  1. That there was an intent to deceive
  2. That there was a representation by the defendant
  3. 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.
26
Q

R v Morley - deception

A

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.

27
Q

Obtains - in relation to obtaining by deception

A

Goods are obtained by a defendant if the goods come under their control, even though they may not have physical possession of them.

Property may be obtained if a 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.

28
Q

What is an example of false representation orally?

A

Verbally claiming to own goods that are in fact subject to a hire purchase agreement.

29
Q

What is an example of false representation by conduct?

A

Representing oneself to be a collector for charity by appearing to be carrying an official collection bag.

30
Q

What is an example of documentary false representation?

A

Presenting a false certificate or qualification, or completing a valueless cheque on an account in which there are no funds knowing that the cheque will not be honoured.

31
Q

Is silence or non-disclosure regarded as a representation? Are there any exceptions to this? Case law?

A

Generally not, however there can be exceptions, such as in R v Dronjak or Rao v Police.

32
Q

What does Police v Dronjak state regarding maintaining silence? (Defendant allowed a cashier to charge a lower price shown on a second price tag on a car radio that he knew to be worth more than the price on that second tag)

A

By maintaining silence int he face of a mistake known to him and deliberately refraining from drawing the checkout assistant’s attention to the mistake, Dronjak had obtained title to the radio by a false pretence (deception).

33
Q

What does Rao v Police state regarding false representation?

A

The defendant had removed price tags and replaced them with cheaper ones. Here the Court held the representation the appellant made was the representation inherent in his conduct that the price tickets on the articles handed to the checkout operator were the same tickets as those placed on the goods by the store.

34
Q

What must the prosecution prove regarding knowledge of a false representation on the part of the defendant?

A

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.

35
Q

In what three ways can knowledge of a false pretence be established?

A
  1. An admission 2. Implication from the circumstances surrounding the event 3. Propensity evidence
36
Q

What does it mean to act “recklessly”?

A

To act recklessly involves consciously and deliberately taking an unjustifiable risk.

37
Q

Where will a duty to disclose with regard to material particulars usually originate?

A

Civil law, such as parties in a contractual relationship.

38
Q

What are the definitions of ‘device’, ‘trick’ and ‘stratagem’?

A

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.

39
Q

When discussing a ‘privilege’ or ‘benefit’, are they limited to those of a pecuniary nature? Examples?

A

No. Some examples could be:

  • Using another person’s gym card to access.
  • Access to medical services.
  • Withdrawal of an assault charge.
  • Reduction in sentence for offence.
40
Q

What is the distinction between theft and obtaining by deception?

A

In theft, the property is obtained without the owner’s permission and title is not passed on.

41
Q

What concept is ownership synonymous with?

A

That of ‘title’.

42
Q

Discuss possession referencing the physical and mental elements of it

A

The physical element requires the physical custody or control over the item in question and can be “actual” or “potential”

Actual - When the thing in question is in a person’s physical custody.

Potential - When the person has the potential to have the thing in question, in their control. For example, storing the thing in question at an associate’s house or through an agent.

The mental element is a combination of both knowledge that the person possesses the item in question and an intention to possess the item.

43
Q

What are some examples of ‘pecuniary advantage’?

A
  • Cash from stolen goods
  • Clothing or cash obtained by a credit/EFTPOS card
  • A discount from a student ID card
  • Avoiding or deferring payment of debt
44
Q

What is the condition placed on the ingredient of ‘debt or liability incurred’ when obtaining credit by deception? What is the meaning of ‘debt’ and ‘liability’?

A

The debt or liability incurred must be legally enforceable. A debt is money owing from one person to another A liability is a legally enforceable financial obligation to pay, such as the cost of a meal.

45
Q

What does Simester and Brookbanks: Principles of Criminal Law state regarding the legality of a debt or liability incurred?

A

That the debt or liability must be legally enforceable - if the contract is void or illegal there will be no offence.

46
Q

What does Fisher v Raven state regarding obligation to pay?

A

‘Credit’ refers to the obligation on the debtor to pay or repay, and the time given for them to do so by the creditor.

47
Q

What are the restrictions on time to pay regarding credit obtained?

A

It may involve varying periods of time, such as the time of a loan agreement, or the time taken to consume a meal or receive a haircut.

48
Q

In cases of obtaining credit, would it be sufficient if the defendant obtained the extension of credit to another (3rd) person?

A

Yes - the extended definition of ‘obtain’ means this will be sufficient.

49
Q

What are three examples of situations where credit may be obtained?

A
  1. Obtaining money on a loan 2. Extending existing overdraft facilities 3. Renting or leasing a dwelling
50
Q

Is credit a tangible or intangible thing?

A

Intangible - credit obtained must be in respect of a monetary obligation.

51
Q

Gaining credit is not in itself unlawful. What must it be accompanied by to be unlawful?

A

An intent to deceive.

52
Q

What must be the timing of intention to deceive when obtaining credit?

A

The intention to deceive must exist at the time when the deception is perpetrated.

53
Q

What does R v McKay state regarding obtaining credit? (The defendant booked into a motel and offered to pay in advance. He was told to pay in the morning when leaving although the following morning he left without paying)

A

On appeal it was held that the credit had been obtained on booking in but at that time the accused did not possess the intent to deceive.

54
Q

What section of the CA1961 specifies the punishments for obtaining or causing loss by deception?

A

S241.

55
Q

Is propensity evidence admissible in cases of obtaining by deception?

A

Yes, where there is a sufficiently strong connection between the offences - persistent honesty across the board would be unlikely to bring the propensity rule into play.

56
Q

What are the two concepts on which the difference between theft and obtaining by deception hinges?

A
  1. Possession 2. Ownership
57
Q

What is “title”?

A

A legal right to property.

58
Q

Can a seller pass title on to a buyer when they have no rights of ownership to the goods themselves?

A

They can pass on no better title to property than they themselves own - the buyer can receive no greater interest in the goods than the seller had.

59
Q

What is the name of a title obtained by deception?

A

A “voidable title” - this means that the title can be “avoided” or vacated by the seller, however until the title is avoided, the defrauder has a title (albeit a voidable one) and can confer good title on anyone who acquires the goods from him or her in good faith.

60
Q

What are the two necessary actions to avoid title?

A
  1. Communication with the defrauder. 2. By advising the Police.
61
Q

What happens when voidable title is passed on before it is avoided? Which piece of legislation comes into play?

A

S25 Sale of Goods Act 1908 - where the seller of goods has a voidable title thereto, but his title has not been avoided 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 seller’s defect of title.

62
Q

Does a thief ever obtain title to stolen goods?

A

No.

63
Q

R v Love

A

A deliberate failure to disclose some material matter by a person who has a duty to disclose it will come within the definition of deception

64
Q

Penalties for deception

A

Exceeds $1,000 - 7 years

$500-$1000 - 1 year

Less than $500 - 3 months