Deception

Question 1

Dishonestly taking or using a document (take or obtains)

Answer 1

Section 228(1)(a) CA 1961
- With intent to obtain any
a) Property
b) Service
c) Pecuniary advantage
d) Valuable consideration
- Takes or Obtains
- Any document
- Dishonestly
- Without claim of right

Question 2

Dishonestly using a document (uses or attempts to use)

Answer 2

Section 228(1)(b) CA 1961
- With intent to obtain any
a) Property
b) Service
c) Pecuniary advantage
d) Valuable consideration
- Uses or attempts to use
- Any document
- Dishonestly
- Without claim of right

Question 3

Obtaining by Deception 240(1)(a) CA1961

Answer 3

Obtaining by Deception Section 240(1)(a) CA 1961

• By any deception
• Obtains
  a) Ownership
  b) Possession
  c) Control over
• Any
  a) Property
  b) Privilege
  c) Pecuniary advantage
  d) Benefit
  e) Valuable consideration,
• Directly or Indirectly
• Without claim of right

Question 4

Define Property

Answer 4

S2 CA1961 - 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.

Question 5

R v Misic - Document def

Answer 5

A document is “A thing which provides evidence or information or serves as a record”

Question 6

Hayes v R [x3]

Answer 6

A pecuniary advantage is - “Something that enhances the accused financial position”.

Valuable consideration is - “Anything that is money or monies worth. “

Attempts - “Unsuccessful use of a document is as much of an attempt as a successful one”.

Question 7

R v Morley - intent

Answer 7

• “Intention to deceive requires purposeful intent at the time the deception is practiced.”

Question 8

Define Deception (false representation)

Answer 8

Deception as defined in s240(2) CA1961

Deception means;

(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.

Question 9

Under deception (false representation) what are the three requirements that need to be proved?

Answer 9

• There was an intention to deceive
• There was a representation by the defendant
• The representation was false; and that the defendant either:

  (1) knew it to be false in a material particular OR
  
  (2) was reckless whether or was false in a material particular

Question 10

Define title

Answer 10

A right or claim to the ownership of property

Question 11

Define “Claim of Right” ?

Answer 11

A belief at the time of the act that you either owned or had a right to possess the property in question although it may be based on ignorance of law or fact

Question 12

Nature of belief required for claim of right

Answer 12

1. Belief in proprietary or possessory right in the property - a right of ownership.
2. The belief must be about rights to the property in relation to which the offence is alleged to have been committed.
3. The belief must be held at the time of the offence.
4. The belief must be actually held by the defendant. The belief is not required to be reasonable and may be based on ignorance or mistake.

Question 13

Define Obtain

Answer 13

Obtain means to retain for themself or any other person

Question 14

Define dishonestly

Answer 14

An act or omission without belief that there was express or implied consent or authority from a person entitled to give such consent or authority.

Question 15

Defines take

Answer 15

to move or cause property to be moved.

Question 16

Define Intent

Answer 16

Deliberate act or omission with intent to obtain a specific result. Must be more than involuntary or accidental.

Question 17

Hayes v R - Use of a document

Answer 17

An unsuccessful use of a document amounts to use of that document. Because the use does not have to be successful it may be difficult to draw a clear line between use and attempted use.

Question 18

Difference between theft and obtaining by Deception

Answer 18

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

Question 19

R v Cox - Possession

Answer 19

Possession involves two elements:
1. The physical element - actual or potential physical control.
2. Mental Element - Knowledge of the item and intent to exercise control over it.

Question 20

Timing of intent to deceive

Answer 20

The defendant must hold the intention to deceive at the time the credit or debit is obtained. The intent cannot be formed at a later date / time.

Question 21

Define Induces

Answer 21

To persuade, bring about or give rise to.

Question 22

Define Loss

Answer 22

Financial detriment to the victim.

Question 23

Cameron v R

Answer 23

Recklessness is established if:

(a) the defendant recognised 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.