Obtaining by deception - property offences

Mens rea (2)

obtain or cause loss by deception

without claim of right

deception

• A false representation, oral - documentary- or by conduct, where the person intends to deceive any other person and – 

  • Knows that it is false in material particular; or 

  • Is reckless as to whether it is false in a material particular

    • Note; remember recklessness test- subjectively knew there was a risk and decided to run it anyway and that running of the risk was unreasonable

False representations of fact:

• Straight up spoken statements

• By conduct - dressing up is sufficient (R v Barnard)

• Silence can be enough to amount to a representation - where they deliberately refrain from drawing attention to a mistake etc (Police v Dronjak)

Intent to deceive;

• Purposeful intent is necessary and must exist at the time of the deception (Morley)

• Must intend the deception to be effective although don’t have to intend the result (no need to show intention for it to cause loss) (R v Morley)

• Subjective intention - honest belief that representation is not false [even if unreasonable] is a defence

Is there a casually salient nexus b/t the obtaining/causing loss and the deception?

• MUST be the FALSE representation that causes the loss

• Doesn’t need to be the only operative factor so long as it played a material part in the outcome (R v Morley)

deceiving a machine?

• Machine is typically not a person so usually no

• BUT if; 

  • You enter false representations into a machine it where a person then makes a decision using that information it can be deception (Xu)

  • AI - Social Securities Act = decisions made by AI are to be treated as being made by a person. 

Without claim of right

Refer to theft stuff on this: 

In sum; 

• Belief that they had a proprietary or possessory right to the property (which the offence is alleged to have been committed)

• Belief can be based on

  • Ignorance

  • Mistake of fact

  • Any mistake of law other than that the alleged offence is enacted by. 

• Defendant can raise that there was a claim of right - passes evidentiary burden then Prosecution is to disprove it BRD

• Not subject to a reasonableness test.

AR - 4

1. obtains ownership or possession of, or control over, any property, or any privilege, service, pecuniary advantage, benefit, or valuable consideration, directly or indirectly; or

2. in incurring any debt or liability, obtains credit; or

3. induces or causes 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; or

4. causes loss to any other person

• All three types of deception in a, b and c all require an intent to deceive

  • Does not apply to honest mistakes

1. causes loss to any other person 

• Defendant does not need to obtain benefit (Morley)

• Does not include expectation loss (Morley)

• Consequential loss is included (Morley)

Obtain:

obtain or retain for themselves or for any other person (s 217)

Pecuniary advantage:

anything that improves the defendant's financial position (R v Hayes)

Property

any land, personal property, and any right or interest in any land or personal property, money, electricity and any debt and any right to a claim in court and any other right or interest including digital files (s 2; Dixon v R)

Service:

an activity that has financial or economic value (R v Cara)

Valuable consideration

anything involving an exchange of value, whether monetary kind or any other. (R v Hayes)

R v Barnard

Facts: person at Oxford - not a member of the uni goes to a shop for the purpose of fraud - wearing a commoner's cap and gown and obtain goods (boots and straps)- did make an oral representation

Just by wearing the cap and gown it would fulfil the conduct requirement -  appearing in a cap and gown is a sufficient false pretense to satisfy the statute, although nothing passed in words.

Police v Dronjak

Seller told him it was 600 dollars and very expensive and he choses to buy it- Dronjak bought a stereo - 2 price tags on it - $600 difference in the price - checkout operator rang up the $38 tag- D noticed this when paying but didn't say anything - discussed matter with friend and decided to keep it as is and not advise the operator about the mistake

Held; He made a representation that the correct price has been rung up and was being charged - deliberately refrained from drawing this to sellers notice.   His silence was enough to amount to a representation Not said anything just followed the directions - interesting because of our typical omissions liability

R v Morley

Morley pretended he could buy expensive houses even though he knew he was insolvent.  Got through to signing sale and purchase agreements

Court is precautious in setting loss too wide - don't want to over criminalize acts that could be just normal commercial actions For unconditional contracts its probably a loss - they make an implied representation that they will be able to settle.  Cf conditional contracts which might be conditional on financing = not sufficient as a misrepresentation.  Where they know or are reckless that this is false they can be liable under s 240 provided that all other elements are proved. Needs to be a loss which affects property rights not one that is merely contractual or expectation losses.