Other Flashcards
(54 cards)
What is required to be proved for ‘Obtains by Deception?’
You must prove:
* 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.
Must there be an intention to deceive?
No offence is committed unless the false statement, non-disclosure or trick etc, 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.
Simester and Brookbanks highlight that it is insufficient that the deception is done in the mere awareness, without so intending, that the victim may be deceived. That would be a case of recklessness rather than intent, and falls outside the scope of s240(2).
Note that the recklessness mentioned in s240(2)(a) only relates to whether a representation is false in a material particular.
What are three ways of deceiving?
Orally (by spoken words)
Example: Verbally claiming to own goods that are in fact subject to a hire purchase agreement.
In the case of R v Caslin9 the defendant was held to have obtained by a false pretence because the representation made by her that she was a prostitute, prepared to prostitute her body and that she had a bedroom available for that purpose were undoubtedly false on that particular occasion.
By conduct
Example: Representing oneself to be a collector for charity by appearing to be carrying an official collection bag.
In R v Barnard10 the defendant entered a shop in a university town wearing a cap and gown to convey the notion that he was a member of the university and as such, able to receive a discount offered to university students.
Documentary
Example: Presenting a false certificate of qualification or completing a valueless cheque on an account in which there are no funds knowing the cheque will not be honoured.
Is silence regarded as representation?
In R v Waterfall, the Court discussed that, as a general rule, silence or non-disclosure will not be regarded as a representation, but there are exceptions to this such as where an incorrect understanding is implied from a course of dealing and the defendant has failed to negate that incorrect understanding.
One controversial exception to the rule on silence is found in “label swapping” cases.
In Police v Dronjak, the defendant was shopping in a department store. He was approached by an assistant who, in reply to his query, advised that the cost of a particular car radio was $695.83. He advised the assistant that he would purchase the item when he went through the checkout.
By the time the defendant arrived at the checkout the item bore two price tags, one for $695.83 the other for $38.88.
The defendant allowed the cashier to charge an incorrect price by not pointing out the higher price tag on the goods. It was argued that this amounted to a representation that the price tag was the correct one.
It was commented that by maintaining silence in the face of a mistake known to him and by deliberately refraining from drawing the checkout assistant’s attention to the mistake, Dronjak had obtained title to the radio by a false pretence (deception).
How can knowledge be established?
Knowledge can be established by:
* an admission
* implication from the circumstances surrounding the event
* propensity evidence
Wilful blindness may also suffice
What happens when there is a duty to disclose but the Defendant doesn’t?
Along with showing an intent to deceive, requires you to show that there was some material particular that was not disclosed, that the defendant was under a duty to disclose and that the defendant failed to perform that duty.
A duty to disclose will often originate in the civil law, for example where the parties are in a contractual relationship.
Examples of privilege or benefit
The words “privilege” or “benefit” are not limited to a privilege or benefit of a pecuniary nature. Both of these words mean a ‘special right or advantage’.
Examples
* Using another person’s gym membership card so that you can use the gym facilities.
* Access to medical services.
* The withdrawal of an assault charge.
* A reduction in sentence for an offence.
Whats the difference between theft and obtaining by deception?
An important distinction between theft and obtaining by deception is that in theft the property is obtained without the owner’s permission and title is not passed on.
When must credit be paid?
Credit may involve varying periods of time. Credit can be obtained over lengthy periods, as in loan agreements, or for a matter of minutes, such as the time taken to consume a meal or receive a haircut. At the end of the period of credit payment is expected to be made.
What are examples of when credit may be obtained?
Examples of situations where ‘credit’ may be obtained include:
* obtaining money on loan
* extending existing overdraft facilities
* renting or leasing a dwelling
What is continuing representations?
In many cases a representation, whether by words or conduct, may be of continuing effect. Thus, entry into a restaurant and ordering a meal would usually be a representation that one will follow the normal practice and pay for the meal at the appropriate time.
If, during the course of the meal, a diner decides to avoid payment, the continuing representation of an intention to pay will become false and any subsequent obtaining of food will come within s240.
Is lack of funds an intent to deceive?
Intent to deceive is not disclosed merely because there is:
* delay or non-payment of the debt, or
* an inability to perform a bona fide intention
For example, to incur a debt and then be unable to pay through unforeseen circumstances, loss of money or oversight is not deceit.
Also,
Intent to deceive does not exist where payment is withheld because of genuine dissatisfaction with the service.
For example, where payment of the cost of a meal is refused because of the quality of the food (made prior to the meal being wholly consumed).
How does hire purchase work with deception
Where goods are obtained on hire purchase by a false representation, the offence committed is deception.
However, if the offender later sells the goods to another, the offender commits theft by conversion. The offender never receives title for goods fraudulently obtained on hire purchase.
Section 240(1)(c) relates to inducing or causing any other person to deliver over, execute, make, accept, endorse, destroy or alter any document or thing capable of being used to derive a pecuniary advantage. Where a person has been induced to deal with a document there will ordinarily be a benefit or a loss to someone resulting from that. Thus, a charge under another part of this section will usually be more appropriate.
What is required to prove inducment?
The inducement should be proved whenever possible by direct evidence from the person alleged to have been defrauded. In practice the victim of the deception is usually questioned to elicit answers proving:
* that the false representation was believed, and
* that it was the consequence of that belief that the victim parted with his or her money
What is required to be proved for 240(1)(d)?
In R v Morley the Court said the prosecution must prove that:
* the loss was caused by a deception
* it was reasonably foreseeable some more than trivial loss would occur, but
* need not prove the loss was intentionally caused.
Thus, there must be loss to “any other person”, but there is no requirement that there be any benefit to anyone.
What is the meaning of ‘to any other person?’
Legislation provides a wide definition of the term “person” that incorporates not only real people, but also companies and other organisations.
Section 2 Crimes Act 1961
Interpretation
Person, owner, and other words and expressions of the like kind, include the Crown and any public body or local authority, and any board, society, or company, and any other body of persons, whether incorporated or not, and the inhabitants of the district of any local authority, in relation to such acts and things as it or they are capable of doing or owning.
What is the penalty for 240 offences?
7 years if the value is over $1,000
1 year for $500-$1,000
3 months for less than $500
What is the propensity rule?
Propensity rule
(1) In this section and sections 41 to 43, propensity evidence—
(a) means evidence that tends to show a person’s propensity to act in a particular way or to have a particular state of mind, being evidence of acts, omissions, events, or circumstances with which a person is alleged to have been involved; but
(b) does not include evidence of an act or omission that is—
(i) 1 of the elements of the offence for which the person is being tried; or
(ii) the cause of action in the proceeding in question.
(2) A party may offer propensity evidence in a civil or criminal proceeding about any person.
(3) However, propensity evidence about—
(a) a defendant in a criminal proceeding may be offered only in accordance with section 41 or 42 or 43, whichever section is applicable; and
(b) a complainant in a sexual case in relation to the complainant’s sexual experience may be offered only in accordance with section 44.
(4) Evidence that is solely or mainly relevant to veracity is governed by the veracity rules set out in section 37 and, accordingly, this section does not apply to evidence of that kind.
When may prosecution offer propensity evidence?
Section 43, Evidence Act 2006
Propensity evidence offered by prosecution about defendants
(1) The prosecution may offer propensity evidence about a defendant in a criminal proceeding only if the evidence has a probative value in relation to an issue in dispute in the proceeding which outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant.
(2) When assessing the probative value of propensity evidence, the Judge must take into account the nature of the issue in dispute
(3) When assessing the probative value of propensity evidence, the Judge may consider, among other matters, the following:
(a) the frequency with which the acts, omissions, events, or circumstances which are the subject of the evidence have occurred:
(b) the connection in time between the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried:
(c) the extent of the similarity between the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried:
(d) the number of persons making allegations against the defendant that are the same as, or are similar to, the subject of the offence for which the defendant is being tried:
(e) whether the allegations described in paragraph (d) may be the result of collusion or suggestibility:
(f) the extent to which the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried are unusual.
(4) When assessing the prejudicial effect of evidence on the defendant, the Judge must consider, among any other matters,—
(a) whether the evidence is likely to unfairly predispose the fact-finder against the defendant; and
(b) whether the fact-finder will tend to give disproportionate weight in reaching a verdict to evidence of other acts or omissions.
When is propensity admissible?
Propensity evidence, whether on previous or later occasions to the offence charged, is admissible in cases of deception where there is a sufficiently strong connection between the offences.
For example, evidence that other cheques drawn by the defendant were dishonoured may be evidence of the circumstances in which the cheque that is the subject matter of the charge was drawn, and therefore directly relevant to the defendant’s state of mind (intent) when he or she issued it.
Evidence of propensity will be subject to the admissibility rules under s7 of the Act.
What is better title?
A person cannot give better title to property than they own. Where a seller, who has no rights of ownership to the goods and who acts without the authority of the true owner, purports to pass title to a buyer, that buyer can receive no greater interest in the goods than the seller had. Section 149 refers;
Section 149, Contract and Commercial Law Act 2017
Sale by person who is not owner
(1) This section applies if goods are sold by a person who—
(a) is not the owner of the goods; and
(b) does not sell the goods under the authority or with the consent of the
owner.
(2) The buyer acquires no better title to the goods than the seller had, unless the
owner of the goods is by the owner’s conduct precluded from denying the seller’s authority to sell.
What is voidable title?
A title obtained by deception, fraud, duress or misrepresentation is called a ‘voidable title’. This means that the title can be voided by the seller.
Until the title is voided, the defrauder has voidable title, and can confer good title on anyone who acquires the goods from him or her in good faith and for value.
Example
The complainant believes an altered gift card given to him to be good and valuable, so he is happy to hand over not only possession of the goods but title to them as well. The result is that the offender obtains title, albeit a voidable title.
Scenario for voidable title (civil action)
A agrees to sell a vehicle to B
A has good title to the vehicle and passes title to B in accordance with the terms of the contract between them. The intention is for title in the vehicle pass from A to B and is confirmed in the in-transfer documents lodged with the Motor Vehicle Registry for transfer of ownership.
In this agreement of sale, B agrees to pay A the sum of $2,000 in total, in 4 equal instalments of $500. Only one instalment is paid, A is owed $1,500. However, title in the vehicle remains with B.
Note, this is different from a hire purchase agreement, where the title remains with the seller until full payment is made.
From a civil perspective, A is an ‘unpaid seller’ and has a claim for price. This means that A may bring a civil claim seeking an order of the Disputes Tribunal that the buyer pay the seller the remaining sale price (or possibly return of the vehicle, depending on A’s wishes).
However, B’s title is voidable by civil action against B. A cannot take back possession of the vehicle from B, as B has title.
If B has on-sold the vehicle to C, and C is unaware of the defect in B’s title, then C receives good title to the vehicle, provided C buys the vehicle in good faith and without notice of B’s defect in title. In this situation A has a remedy against B, not against the ultimate buyer C.
To void B’s title
Scenario for voidable title (Obtain by Deception)
B meets with A with the intention of viewing A’s vehicle for sale. B is a prolific fraudster and has no intention to pay for the vehicle, nor does he have any means to pay the asking price of $15,000.
B manages to convince A that he is genuine and an honest buyer. An agreement is made on a hand shake that B will take the vehicle home and pay the following day. B provides false written details about himself and leaves with the vehicle. B makes no further contact with A and keeps the vehicle.
In this situation, B obtains possession of the car and title because A intended to pass over title.
However, because A’s consent has been obtained by deception, B’s title can be regarded as voidable.
In this example, B has a title until it is voided by A.
Apart from notifying Police of this deception, to void the title, A must take civil steps to do so.
If B sells the car to C before the title is voided, and C buys it innocently and legitimately without knowing of B’s deception, C gains title.
Section 151 Contract and Commercial Law Act 2017
Sale under voidable title, applies:
“Where the seller of goods has a voidable title thereto, but his title has not been voided 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.”
Section 152(2) of the Contract and Commercial Law Act 2017 also applies:
Revesting of property in stolen goods on conviction of offender:
“(2) Despite any other enactment, the property in goods obtained by fraud or other wrongful means that does not amount to theft does not revest in the person who was the owner of the goods (or that person’s personal representative) by reason only of the conviction of the offender.
Sub (2) provides that even if B is convicted for this fraud, C does not lose title to the vehicle, pursuant to s 151 of the C&CLA. Section 151 provides that where B has a voidable title to the vehicle, but A had not taken steps to void B’s title before B sold it to C, C keeps good title to the vehicle.
Note: From a practical perspective, proving intent in this scenario could be difficult and, in many situations, there is a fine line between criminal and civil matters.
