Section 81 of The Crimes Act 1958.
Section 81 of the Crimes Act 1958
creates the offence of obtaining property by deception. It states;
(1) A person who by any deception dishonestly obtains property
belonging to another, with the intention of permanently depriving the other of
it, is guilty of an indictable offence and liable to level 5 imprisonment
(10 years maximum).
(2) For purposes of this section a person is to be treated as obtaining
property if he obtains ownership, possession or control of it, and obtain includes obtaining for
another or enabling another to obtain or to retain.
(3) Subsections (12) and (13) of section 73 shall apply for purposes of
this section, with the necessary adaptation of the reference to appropriating,
as it applies for purposes of section 72.
(4) For the purposes of this section, deception—
(a) means any deception (whether deliberate or
reckless) by words or conduct as to fact or as to law, including a deception as
to the present intentions of the person using the deception or any other person;
and
(b) includes an act or thing done or omitted to be
done with the intention of causing—
(i) a computer system; or
(ii) a machine that is designed to operate by means
of payment or identification—
to make a
response that the person doing or omitting to do the act or thing is not
authorised to cause the computer system or machine to make.
When investigating and potentially
prosecuting a charge under this section of the Crimes Act, investigators and
prosecutors need to be mindful of the essential elements of the offence which
need to be proven. These are well set
out in “Bourke’s Criminal Law – Victoria”
2010, Lexis Nexis Butterworths, at P. 289-94 and are as follows;
1. That the accused engaged in a
deception
2. That the accused did so dishonestly
3. As a result of the deception the
accused
a. Obtained ownership, possession or
control of property; or
b. Obtained for another, or enabled
another to obtain or to retain, the ownership, possession or control of
property;
4. That the property in question
belonged to a third party;
5. That the accused intended to deprive
the third party of that property.
The first element of this charge is
that there must be a deception. This
deception can be by words or by conduct and it can be either deliberate or
reckless, but there must be a causal connection between the deception and the
obtaining. As cited in Director of Public Prosecutions v Ray
[1974] AC 370,
“The deception must have the effect of inducing the victim to
part with his property or to do or refrain from doing something as a result
which the accused obtains property for himself or for another”
While there are numerous other
authorities which all support this contention of a causal connection required
between the deception and the obtaining, the authorities also state that even
where a victim suspects or even believes that they are being swindled at the
time they part with money as a result of a deception does not mean that the
obtaining has not resulted from the deception as per R v Miller (1992) 95 Cr App R 421.
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