Obtaining property by deception

There are four elements the prosecution must prove beyond reasonable doubt before an accused person can be held to have obtained property by deception.

Firstly, it must be shown that the accused “obtained property that belonged to someone else”. An individual is considered to have obtained property, if they have taken for themselves or another, ownership, possession or control of that property, and the property belongs to another person. The definition of property for these purposes is comprehensive, and includes money, real property, personal property and even intangible property.

Secondly, the accused must obtain the “property” with the “intention of permanently depriving” the person to whom the property legally belongs. The intention will be evaluated subjectively, meaning that the accused’s own state of mind at the time of the alleged crime will be most relevant to evaluating their intention.

Thirdly, the accused must have engaged in a deception by words or conduct to obtain the property. In order for particular conduct to be considered deceptive for these purposes, the conduct must be intentional, or reckless. Recklessness in the context of deception means to behave in a manner knowing that there is a substantial chance that it is deceptive but persisting with the conduct regardless.

There must be a causative effect between the act of deception, and the accused obtaining the property, meaning the deception enabled the accused to obtain the property.

Finally, the property must have been obtained dishonestly, meaning that the accused person acted without a belief to lawfully obtain the property. That is, they were aware that they lacked a legal claim to the property.

An example of this offence may be the use of a faulty cheque in order to complete purchase of a vehicle. The first element would be satisfied if the individual takes possession of the motor vehicle, which they purport to have validly purchased. The second element would be satisfied if the individual had no intention of returning the property to the seller. The third element of deception would be satisfied, given that to represent that a faulty cheque is valid, it to purport that a state of affairs is true, when it is in fact untrue. If the seller transferred possession of the property to the impugned individual because of the false cheque, then the causative element would be satisfied. Finally, the dishonesty element would be satisfied if the impugned individual knew that the cheque was invalid, and thus they had not paid for the vehicle, yet they took it regardless.

If convicted of obtaining property by deception, an individual may potentially face a maximum of ten years imprisonment.