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Deception CIB008 > Obtaining By Deception Or Causing Loss By Deception > Flashcards

Obtaining By Deception Or Causing Loss By Deception Flashcards

1
Q

S.240(1)(b)

A

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
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2
Q

S.240(1)(c)
DEMADE

A

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.
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3
Q

S.240(1)(d)

A

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

  • causes loss to any other person
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4
Q

S.240(1)(a)

A

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.

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5
Q

Deception Means 240(2)

A

(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

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6
Q

Representation

A

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

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7
Q

What do you need to prove under S240(1)

A
  • 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
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8
Q

S240(2) - deception case law

A

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.

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9
Q

Recklessness - Cameron v R

A

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

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10
Q

Intent

A

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.

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11
Q

3 examples of intent in deception - 240(2)

A
  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
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12
Q

R v Morley - Representations

A

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

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13
Q

Continuing effect of representations
Example

A

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)

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14
Q

Representation - Silence

A
  • 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.

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15
Q

Knowledge

A

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

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16
Q

Knowledge can be established by…

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

Includes - wilful blindness

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17
Q

False in a material particular

A

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

Can be a minor detail.

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18
Q

Omission

A

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

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19
Q

Duty to disclose 240(2)(b)

A

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

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20
Q

Fraudulent device, trick or stratagem

A
  • 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)
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21
Q

Device, trick, stratagem definitions

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

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22
Q

Without claim or right

A

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

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23
Q

Obtains

A

Obtain or retain for themselves or any other person

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24
Q

Property

A

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.

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25
Q

Valuable consideration

A

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

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26
Q

Pecuniary Advantage - Hayes v R

A

Anything that enhances the financial position of the accused

27
Q

Privilege or benefit

A

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

28
Q

Obtains ownership

A
  • 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
29
Q

Distinction between obtaining by deception and theft

A

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

30
Q

Ownership

A
  • synonymous with title
  • sometimes a person parting with goods relinquishes the possession and passes on a legal right of ownership (title) for the goods
31
Q

Possession

A
  • 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
32
Q

Possession - r v Cox

A

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.

33
Q

Special interest

A

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

34
Q

Special Interest - lien

A

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

35
Q

Special Interest - lien

A

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

36
Q

Control

A

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

37
Q

Control

A

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

38
Q

Pecuniary Advantage - define and 4 examples

A

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

39
Q

Debt

A

Money owing from one person to another

Must be legally enforceable

40
Q

Debt

A

Money owing from one person to another

Must be legally enforceable (if a contract is void or illegal there is no offence)

41
Q

Liability

A

Legally enforceable financial obligation to pay

42
Q

Obtaining Credit

A
  • 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
43
Q

Fisher v Raven - obligation to pay

A

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

44
Q

Examples of obtaining Credit

A
  • obtaining money on loan
  • extending existing overdraft facilities
  • renting or leasing a dwelling

Must occur with the intent to deceive

45
Q

When must the defendant form the intention to deceive?

A

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
46
Q

When must the defendant form the intention to deceive?

A

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
47
Q

Credit & 2 examples

A
  • 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

48
Q

Credit & 2 examples

A
  • 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

49
Q

Not obtaining credit by deception if..

A
  • delay or non-payment (loss of money/oversight)
  • inability to perform a bona fide intention
50
Q

Hire Purchase

A
  • 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
51
Q

Induces

A

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
52
Q

Proof of enducement

A

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

53
Q

R v Laverty - induce

A

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

54
Q

R v Laverty - induce

A

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

55
Q

Causes

A

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
56
Q
  • Deliver over
  • execute
  • endorse
  • alter
  • accept
  • make
A
  • 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
57
Q
  • Deliver over
  • execute
  • endorse
  • alter
  • accept
  • make
A
  • 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
58
Q

Document

A

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

59
Q

Thing

A
  • Must be tangible
  • must be capable of being used to derive a pecuniary advantage
60
Q

Loss

A
  • 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
61
Q

Any other person

A

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

62
Q

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

A
  • 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
63
Q

Penalty

A

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

Deception CIB008 (4 decks)

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