State the definition of ‘deception’, as set out in s240(2) CA61
Deception means:
• a false representation whether oral, documentary or conduct by a person intending to deceive any other person AND
• the person knows that it is false in a material particular or is reckless as to whether it is false in a material particular.
• an omission to disclose a material particular with intent to deceive any person
• a fraudulent device, trick or stratagem used with intent to deceive any person.
What is required to prove a ‘false representation’?
- there was intent to deceive
- a false representation by the defendant
- the representation was false and the defendant either knew it to be false in a material particular OR was reckless whether it was false in a material particular
When can goods be said to have been ‘obtained’ by a defendant?
Obtain or retain for himself or any other person
Representations can be made in three ways, or a combination of three ways. What are these?
- Orally
- documentary
- by conduct
What are the differences between ‘obtaining property by deception’ and ‘theft’ with regard to possession?
In theft the property is obtained without the owner’s permission and title is not passed on.
Under what circumstances does a person keep title of goods if they have fraudulently induced another to hand over goods with the intention that the title will pass?
- s246(4) CA61 is an exception to the rule that you cannot get a better title than the seller.
- if the original purchaser subsequently sells the goods to an innocent buyer then the title has been made legal.
How can you avoid title?
- Communication to the other person, taking all possible steps to bring it to their notice
- advising police that the property was obtained by fraud
When is forgery complete?
As soon as the document is made with the intent described in s256(1) - using it to obtain any property etc - or with the knowledge and intent described in s256(2) - knowing it to be false, with intent it be used as genuine.
Define Claim of Right, s2 CA61
A belief at the time of the act in a proprietary or possessory right in property in relation to the offence.
What was held in Cameron v R in relation to recklessness?
Recklessness is established if:
• defendant recognized there was a real possibility that:
• their actions would bring about the proscribed result; and/or
• that the proscribed circumstances existed; and
• having regard to that risk that those actions were unreasonable.
