DECEPTION - Definitions

Question 1

False Representation

Answer 1

False Representation

Must be false and the defendant must know or believe

• That it is false in a material particular, or
• Be reckless whether it is false
• Absolute certainty is not required, and
• Wilful blindness will suffice

Question 2

Intent to Deceive + Case Law

Answer 2

Intent to Deceive

Offender must know representation is false and intend other person to act upon it as genuine.

R v MORLEY

An intention to deceive requires that 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 3

Claim of Right

Answer 3

Claim of Right – Section 2 Crimes Act 1961

In relation to any act, means a belief at the time of the act in a proprietary or possessory right in property in relation to which the offence is alleged to have been committed, although that belief may be based on ignorance or mistake of fact or of any matter of law other than the enactment against which the offence is alleged to have been committed.

Question 4

Obtain

Answer 4

Obtain - Section 217 Crimes Act 1961

In relation to any person means obtain or retain for him/her self or for any other person.

Question 5

Possession

Answer 5

Possession

May be actual or constructive.

Question 6

Actual Possession + Case Law

Answer 6

Actual Possession

• The thing in question is in a person’s physical custody; or
• It is on or about their person, or immediately at hand.

WARNER v MET POL COMMISSIONER

Ideal possession is:

• Complete physical control
• Knowledge of existence, situation, qualities.

Question 7

Constructive Possession + Case Law

Answer 7

Constructive Possession

• When something is not in a person’s physical custody, but
• They have ready access to it or can exercise control over it.

SULLIVAN V EARL OF CAITHNESS

“[Possession includes} not merely those who have physical custody of firearms … but also those who have firearms under their control at their behest, even though for one reason or another they may be kept at [another location].”

Question 8

CONTROL

Answer 8

CONTROL

To exercise authoritative or dominating influence or command over it

Question 9

Property

Answer 9

Property - Section 2, Crimes Act 1961

Property includes 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 10

Privilege or Benefit

Answer 10

Privilege or Benefit

Special right or advantage.

Question 11

Pecuniary advantage + Case Law

Answer 11

Pecuniary advantage

Economic or monetary advantage.

R v HAYES

A pecuniary advantage is “anything that enhances the accused’s financial position.

Question 12

Valuable Consideration + Case Law

Answer 12

Valuable Consideration:

• Receiving compensation or a fee

R v HAYES

• “Anything capable of being valuable consideration, whether of a monetary kind or any other kind; in short, money or money’s worth”.

Question 13

Value

Answer 13

Value

Value must be established to determine max penalty.

Question 14

Credit/Obligation to pay 2 x Case Law

Answer 14

Credit / Obligation to pay

FISHER v RAVEN

Refers to the obligation on the debtor to pay or repay in the time given to do so by the creditor. The obligation to pay must be legally enforceable

R v MCKAY

Intention to deceive must exist when credit obtained.

Question 15

Recklessness + Case Law

Answer 15

Recklessness

A conscious and deliberate taking of an unjustifiable risk.

R v HARNEY

Recklessness involves foresight of dangerous consequences that could well happen together with an intention to continue the course of conduct regardless of the risk.

Question 16

MATERIAL PARTICULAR

Answer 16

MATERIAL PARTICULAR

An important, essential or relevant detail.

Prosecution must establish that the defendant knows or believes that his:-

• Representation is false in a material particular, or
• Is reckless as to whether it is false.

A minor detail may amount to a “material particular” if it is of consequence to the facts of the case.

Question 17

Document + Case Law

Answer 17

Document - Section 217 Crimes Act 1961

A document includes:

• Paper/material containing anything that can be read
• Photos, negatives and related items
• Discs, tapes, cards or other devices/equipment on which information is stored and can be reproduced

R v MISIC

A document is a thing, which provides evidence or information or serves as a record.

Question 18

Loss + Case Law

Answer 18

LOSS

Is likely to include

• Financial and property losses
• Emotional, cultural and intellectual losses.
• May include financial or non-financial loss.

R v MORLEY

The loss alleged by the victim must have been:-

• As a result of the deception.
• It doesnt to be the only operating factor,
• As long as it played a part in causing the loss.”

Question 19

Dishonestly + Case Law

Answer 19

Dishonestly - Section 217, Crimes Act 1961

• An act or omission, done or omitted
• Without consent, or authority
• From a person entitled to give such consent or authority.

R v HAYES

The question is

• Whether the belief was actually held,
• Not whether that belief was reasonable.
• Reasonableness may be relevant evidence on whether the belief was actually held.

Question 20

Takes

Answer 20

Takes – Section 219(4) Crimes Act 1961

• Theft is committed by a taking of the property, or
• When the offender moves or causes it to be moved.

Question 21

Uses + Case Law

Answer 21

Uses

“Use” can include a single action such as the handing over of a document or the continuing use of a document.

R v HAYES

An unsuccessful use of a document is as much a “use” as a successful one.

• An attempt relates to the “use” not the obtaining of advantage
• Therefore it may be difficult to draw a line between use and attempted use.

Question 22

Attempts

Answer 22

Attempts – Section 72, Crimes Act 1961

Everyone who, having attempted to commit an offence

• Does or omits an act for the purpose of accomplishing his object,
• Is guilty of an attempt to commit the offence intended,
• Whether in the circumstances it was possible to commit the offence or not.

Question 23

Concept of title

Answer 23

Concept of title

A legal right to the property.

Question 24

Dishonesty other than deceit

Answer 24

Dishonesty other than deceit

The difference between theft and obtaining by deceit.

• A thief never gets title.
• A deceiver causing another to hand over goods with the intention of passing on title does.

Question 25

Voidable title

Answer 25

Voidable title A title obtained by deception, fraud, duress or misrepresentation is called a voidable title. This means that the title can be avoided by the seller.