Deception Element Definitions

Question 1

Define obtain

Answer 1

retain for himself, herself or any other person

comes under their control even though they may not have physical possession

Question 2

Define property

Answer 2

real and personal property, including any other right or interest.

Question 3

define service and what case law

Answer 3

R v Cara - service is limited to financial or economic value and excludes privileges and benefits.

Question 4

define pecuniary advantage and what case law

Answer 4

Hayes v R - anything that enhances the accused’s financial position.

economic or monetary advantage

Question 5

define valuable consideration and what case law

Answer 5

Hayes v R - money or moneys worth

Question 6

define dishonestly

Answer 6

act or omission done without a belief of expressed or implied consent from a person entitled to give consent or authority

Question 7

define claim of right

Answer 7

belief of proprietary or possessory right to property at the time of the act and in relation to the offence.

Question 8

can claim of right be based on mistake or ignorance

Answer 8

yes

Question 9

explain the case law regarding without dishonestly/claim of right

Answer 9

the question is is whether belief is held not that if is reasonable, however reasonableness may be relevant to whether belief was actually is held

Question 10

define takes

Answer 10

offence committed when the offender moves the property or causes it to be moved

Question 11

define document using case law

Answer 11

R v Misic - a document is a thing which provides information or evidence and serves as a record

Question 12

explain use

Answer 12

single or continuing action

Question 13

what does case law state around use and attempted use

Answer 13

Hayes v R - a successful use is as much use as an attempted use

Question 14

what is a brief definition of attempts

Answer 14

having an intent to commit an offences, does or omits an act for the purpose of accomplishing his objective

must be immediate or proximate and a step past preparation

Question 15

define deception

Answer 15

(a) a false representation, whether oral, documentary, or by conduct, where the person making the representation intends to deceive any other person and

knows that it is false in a material particular or 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 another person, in circumstances where there is a duty to disclose it

or

a fraudulent device, trick, stratagem used with intent to deceive any person

Question 16

define material particular using case law

Answer 16

R v Mallett - something important or something that matters

Question 17

define representation

Answer 17

description or portrayal or something in a certain way, may be oral, documentary or by conduct.

Question 18

define false representation

Answer 18

the representation must be false and the defendant must know or believe or be reckless that it is false, including wilful blindness.

Question 19

what are the three main points to prove for deception

Answer 19

an intent to deceive

representation by the defendant

that the representation was false, and the defendant either knew it to be false in a material particular or was reckless either it was false in a material particular

Question 20

define intention to deceive with case law

Answer 20

R v Morley - 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 21

define recklessness using case law

Answer 21

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) the proscribed circumstances existed: and

(b) having regard to that risk those actions were unreasonable

Question 22

what two tests do Cameron v R include

Answer 22

the subjective test - what was the defendant thinking at the time of the act

the objective test - would a reasonable person take that risk in the circumstances known to the defendant

Question 23

what are the two types of intent

Answer 23

an intent to commit a deliberate act and intent to get a specific result

Question 24

explain intent using case law

Answer 24

R v Collister

Circumstantial evidence may infer an offenders intent

words or actions before, during or after the event

the surrounding circumstances

the nature of the act itself

Question 25

explain continuing effect

Answer 25

representation by words or conduct may have a continuing effect, for example ordering food at a restaurant with expectation of payment at the end

Question 26

is absolute certainty of knowing the representation to be false required?

Answer 26

No

Question 27

is silence or non-disclosure regarded as a representation

Answer 27

No, however knowing something to be a false and not bringing attention to it is

Question 28

what are the three ways knowledge can be establised

Answer 28

propensity evidence admission implication from surrounding circumstances

Question 29

define device, trick or stratagem

Answer 29

device - a plan, scheme of trick trick - an action or scheme undertaken to fool, outwit or deceive stratagem - a cunning plan or scheme

Question 30

what is the important distinction between theft and obtained by deception

Answer 30

in theft the property is obtained without the owners permission or consent and title is not passed on.

Question 31

Explain possession using case law

Answer 31

R v Cox possession includes a physical and mental element physical - actual or potential custody or control mental - knowledge the item is in possession and the intention to possess it

Question 32

define control

Answer 32

exercise authoritative or dominating influence or command over something

Question 33

what is ownership

Answer 33

synonymous with title, legal right to possess and pass on the goods

Question 34

define special interest

Answer 34

having an interest in the goods without having actual ownership. e.g a car taken into the mechanic with work completed

Question 35

what is an example of a special interest lien

Answer 35

a clock repairer not giving possession of a fixed clock back to the owner until payment is received

Question 36

define debt

Answer 36

money owing from one person to another

Question 37

define liability

Answer 37

a legally enforceable obligation to pay

Question 38

define credit with case law

Answer 38

Fisher v Raven - refers to the obligation for a debtor to pay or repay, and the time given for them to so by the creditor. Credit does not extend to an obligation to supply services or goods.

Question 39

explain the timing of intention to deceive with case law

Answer 39

R v McKay - the intention to deceive must exist at the time of of the deception. a later decision not to pay is insufficient.

Question 40

can credit be tangible

Answer 40

no, is intangible, must be in respect to a monetary obligation.

Question 41

explain payment withheld

Answer 41

intent to deceive does not exist where payment is withheld due to genuine dissatisfaction.

Question 42

can a person who sells an item on HP early gain title

Answer 42

no, title is only obtained after fully paying off the item

Question 43

explain deception and conversion/theft regarding HP

Answer 43

if something purchased on HP by false representation then its deception. if purchased on HP and sold it is conversion/theft

Question 44

define induces

Answer 44

to persuade, bring about or give rise to

Question 45

what are the two things that must be proved for induces

Answer 45

the false representation was believed that it was the consequence of that belief the victim parted with his or her money

Question 46

explain the case law for inducement

Answer 46

necessary for the prosecution to prove that the person parting with the property was induced to do so by the false representation made

Question 47

explain cause

Answer 47

must be the substantial and operative cause of the delivery

Question 48

define loss

Answer 48

financial detriment to the victim

Question 49

what three things must be proved for cause loss by deception

Answer 49

the loss was caused by the deception it was reasonably foreseeable that some more than trivial loss would occur need not prove the loss was intentionally caused

Question 50

what are the 3 max penalties for s240(1)

Answer 50

over $1000 - 7 years $500-$1000 - 1 year under $500 - 3 months

Question 51

what are the penalties for s228(1)

Answer 51

7 years

Question 52

explain privilege and benefit

Answer 52

a special right or advantage