Obtaining By Deception Or Causing Loss By Deception

Question 1

S.240(1)(b)

Answer 1

Obtains credit

Everyone is guilty of obtaining/causing loss by deception:
By any deception, and without claim of right:

• in incurring any debt or liability, obtains credit

Question 2

S.240(1)(c)
DEMADE

Answer 2

Everyone is guilty of obtaining/causing loss by deception:
By any deception, and without claim of right:

• induces/causes any other person to (DEMADE) deliver over, execute, endorse, alters, destroys, make any document/thing capable of being used to derive a pecuniary advantage.

Question 3

S.240(1)(d)

Answer 3

Everyone is guilty of obtaining/causing loss by deception:
By any deception, and without claim of right:

• causes loss to any other person

Question 4

S.240(1)(a)

Answer 4

Everyone is guilty of obtaining by deception or causing loss by deception

Who by any deception and without claim of right

Obtains ownership or possession of or control over, any property, or any privilege, service, pecuniary advantage, benefit or valuable consideration, directly or indirectly.

Question 5

Deception Means 240(2)

Answer 5

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

Question 6

Representation

Answer 6

Not defined, eg, representations of past, present, future fact or event or about an existing intention, opinion, belief, knowledge, state of mind.

It must be capable of being false so it must contain a proposition of fact

Question 7

What do you need to prove under S240(1)

Answer 7

• Intent to deceive
• there was a representation by the defendant
• that representation was false
• and they knew it was false in a material particular or
• They were reckless whether it was false in a material particular

Question 8

S240(2) - deception case law

Answer 8

R v Morely
- an intention to deceive requires that the deception is practiced in order to deceive the affected party. Purposeful intent must exist at the time of the deception.

Question 9

Recklessness - Cameron v R

Answer 9

Recklessness is established if the defendant recognises that there is a real possibility that thier actions would bring about the proscribed result and/or that the proscribed circumstances existed.
Having regard to that risk those actions were unreasonable

Question 10

Intent

Answer 10

In the criminal law context, there are two specific types of intent, an intent to commit the act and the intent to get a specific outcome.

Question 11

3 examples of intent in deception - 240(2)

Answer 11

1. Orally - claiming to own goods that are on hire purchase
2. Conduct - representing yourself as a collector for a charity by carrying an official collection bag
3. Documentary - presenting a false certificate of qualification or a valueless cheque

Question 12

R v Morley - Representations

Answer 12

representations must relate to a statement of existing fact, rather than a statement of future intention

Question 13

Continuing effect of representations
Example

Answer 13

Word or conduct may have a continuing effect
EG: ordering dinner at a restaurant represents that you would have dinner and pay after. If during the course of dinner the diner decides to avoid that payment, the continuing representation will become false and obtaining the food will come within s.240(1)

Question 14

Representation - Silence

Answer 14

• Silence/ non-disclosure is not a representation.
• except when an incorrect understanding is implied from a course of dealings and the defendant fails to negate that incorrect understanding.

Example - price tags on shop items, defendant knowingly allows cashier to scan the much lower price tag without telling them.

Question 15

Knowledge

Answer 15

Knowing or correctly believing, defendant may believe something wrongly but cannot know something that is false

Question 16

Knowledge can be established by…

Answer 16

1. An admission
2. Implied from the circumstances surrounding the event
3. Propensity evidence

Includes - wilful blindness

Question 17

False in a material particular

Answer 17

Am important, essential, relevant detail or item. Something important or something that matters.

Can be a minor detail.

Question 18

Omission

Answer 18

Inaction, not acting, a conscious decision no to do something or not giving though to material at all

Question 19

Duty to disclose 240(2)(b)

Answer 19

Requires proof that there was some material particular that was not disclosed and the defendant had a duty to disclose it, but failed to do so.

Eg a contractual relationship

Question 20

Fraudulent device, trick or stratagem

Answer 20

• conduct must be used with intent to deceive
• covers any fraudulent conduct
• fraudulent - dishonest in a traditional moral sense
• can be a simple trick or ore complex schemes (eg pyramid schemes)

Question 21

Device, trick, stratagem definitions

Answer 21

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

Question 22

Without claim or right

Answer 22

A belief at the time of the act or omission in a proprietary or possessionary right in property relating to the alleged offence committed. The belief may be based on ignorance or mistake of fact or any other matter of law

Question 23

Obtains

Answer 23

Obtain or retain for themselves or any other person

Question 24

Property

Answer 24

Real or personal property or any estate or interest in any real or personal property, money, debt, electricity, anything in action, and any other right or interest.

Question 25

Valuable consideration

Answer 25

Anything capable of having value, Money or money's worth Eg: - money for goods/services - goods for a service provided - issuing a false invoice to receive payment for goods never supplied

Question 26

Pecuniary Advantage - Hayes v R

Answer 26

Anything that enhances the financial position of the accused

Question 27

Privilege or benefit

Answer 27

Special right or advantage Eg: - using someone else's gym card - access to medical services - withdrawal of an assault charge - reduction in sentence for an offence If the benefit or privilege does not involve money there does not need to be financial loss or injury to the person defrauded

Question 28

Obtains ownership

Answer 28

- The goods come under the physical control of the defendant. - can occur through a third party - example - when there is an agreement that a cheque will be sent by post to complete a transaction, the obtaining is complete at the time of posting

Question 29

Distinction between obtaining by deception and theft

Answer 29

In theft the property is obtained without the owners permission and title is not passed on

Question 30

Ownership

Answer 30

- synonymous with title - sometimes a person parting with goods relinquishes the possession and passes on a legal right of ownership (title) for the goods

Question 31

Possession

Answer 31

- a person often holds possession and ownership at the same time and therefore passed on at the same time - can possess something without having title, eg driving someone else's car - eg - goods purchased with a valueless cheque. Both possession and title are transferred

Question 32

Possession - r v Cox

Answer 32

Two elements, the physical is the actual or potential custody or control. The second, the mental element is a combination of knowledge and intention, knowledge in the sense of awareness that the substance is in his possession and an intention to exercise possession.

Question 33

Special interest

Answer 33

the person whose goods were obtained had some special property or interest in the goods, without having actual ownership or them.

Question 34

Special Interest - lien

Answer 34

Eg - when you take a car to the garage they can have a lien until the debt is paid - garage owner can retain possession of the car and gives them a special property or interest in the vehicle

Question 35

Special Interest - lien

Answer 35

Eg - when you take a car to the garage they can have a lien until the debt is paid - garage owner can retain possession of the car and gives them a special property or interest in the vehicle

Question 36

Control

Answer 36

To exercise authoritative or dominating influence or command over it. Do not need to possess it to control it. The defendant must exercise their control of the property

Question 37

Control

Answer 37

To exercise authoritative or dominating influence or command over it. Do not need to possess it to control it. The defendant must exercise their control of the property

Question 38

Pecuniary Advantage - define and 4 examples

Answer 38

An economic or monetary advantage 1. Cash from stolen goods 2. Clothing or cash obtained by a credit/EFTPOS card 3. A discount (student ID) 4. Avoiding or deferring payment of a debt Eg - reusing TAB tickets to obtain a pecuniary advantage. The TAB machine didn't allow it. So, the purpose was unsuccessful, but the use was successful

Question 39

Debt

Answer 39

Money owing from one person to another Must be legally enforceable

Question 40

Debt

Answer 40

Money owing from one person to another Must be legally enforceable (if a contract is void or illegal there is no offence)

Question 41

Liability

Answer 41

Legally enforceable financial obligation to pay

Question 42

Obtaining Credit

Answer 42

- Requires a debtor to gain a creditor's agreement to the deferred payment of a debt or obligation. The credit obtained must be in respect of a monetary obligation. - Obligation must be legally enforceable - may involve varying times to pay

Question 43

Fisher v Raven - obligation to pay

Answer 43

Credit refers to the obligation on the debtor to pay/repay and the time given for them to do so by the creditor. Credit does not extend to an obligation to supply services or goods

Question 44

Examples of obtaining Credit

Answer 44

- obtaining money on loan - extending existing overdraft facilities - renting or leasing a dwelling Must occur with the intent to deceive

Question 45

When must the defendant form the intention to deceive?

Answer 45

R v McKay - the credit had been obtained on booking in but at that time the accused did not possess an intent to deceive - At the time of obtaining credit. - eg - a later decision not to repay is insufficient - eg - must prove that the diner intended to deceive when they entered the restaurant or when they started there meal

Question 46

When must the defendant form the intention to deceive?

Answer 46

R v McKay - the credit had been obtained on booking in but at that time the accused did not possess an intent to deceive - At the time of obtaining credit. - eg - a later decision not to repay is insufficient - eg - must prove that the diner intended to deceive when they entered the restaurant or when they started there meal

Question 47

Credit & 2 examples

Answer 47

- is intangible - must be in respect of monetary obligation Eg - entering a restaurant with no intent to pay = obtaining credit by deception Eg - shopkeeper mistakes ID of person and gives them credit and the person doesn't correct them = obtaining credit by deception

Question 48

Credit & 2 examples

Answer 48

- is intangible - must be in respect of monetary obligation Eg - entering a restaurant with no intent to pay = obtaining credit by deception Eg - shopkeeper mistakes ID of person and gives them credit and the person doesn't correct them = obtaining credit by deception

Question 49

Not obtaining credit by deception if..

Answer 49

- delay or non-payment (loss of money/oversight) - inability to perform a bona fide intention

Question 50

Hire Purchase

Answer 50

- if good are put on hire purchase under a false representation = Deception - if the offender later sells them = theft by conversion - s240(1)(c) covers hire purchase deception

Question 51

Induces

Answer 51

To persuade, bring about or give rise to. - another person must be induced or caused to deliver over, execute, make, accept, alter, destroy, endorse the document or thing

Question 52

Proof of enducement

Answer 52

By the victim: - believing the false representation - that it was the consequence of that belief that the victim parted with their money

Question 53

R v Laverty - induce

Answer 53

It is necessary that the prosecution prove that the person parting with the property was included to do so by the false representation made.

Question 54

R v Laverty - induce

Answer 54

It is necessary that the prosecution prove that the person parting with the property was included to do so by the false representation made.

Question 55

Causes

Answer 55

The defendant or act of the defendant must be the substantial and operative cause of the delivery, execution etc of any document capable of deriving pecuniary advantage - the accused must cause the loss

Question 56

- Deliver over - execute - endorse - alter - accept - make

Answer 56

- deliver over- to surrender up someone or something - execute- put a course of action into effect - endorse - write or sign a document - alter - change in character or composition, typically in a small but significant way - to accept - to receive something

Question 57

- Deliver over - execute - endorse - alter - accept - make

Answer 57

- deliver over- to surrender up someone or something - execute- put a course of action into effect - endorse - write or sign a document - alter - change in character or composition, typically in a small but significant way - to accept - to receive something

Question 58

Document

Answer 58

Anything capable of being used to record information, and derive a pecuniary advantage

Question 59

Thing

Answer 59

- Must be tangible - must be capable of being used to derive a pecuniary advantage

Question 60

Loss

Answer 60

- financial detriment to the victim - must be a direct loss - the loss flowing from the deception should be assessed by the extent to which the complainants' position before deception had been diminished or impaired - the person suffering loss doesn't have to be the person deceived

Question 61

Any other person

Answer 61

Incorporates real people, companies and organisation's, society's, boards, local authority

Question 62

What to prove in S.240(1)(d)

Answer 62

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

Question 63

Penalty

Answer 63

> $1000 = 7 years imp > $500 < $1000 = 1 year imp < $500 = 3 months