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It is an offence to use deceit to obtain property belonging to another which you intend to keep.
The offence is similar to a charge of theft, but differs in that the accused obtains ownership by deception. In the case of a theft, the accused assumes the rights of the owner.
Like theft, where an owner intentionally relinquishes ownership of property, or ‘abandons’ it, an accused will not be guilty of the charge.
Obtaining Property By Deception
With respect to the actual deception, it is necessary that the accused knew that any representations made were false, and also that the victim believed the representations which led to the obtaining of the property. Representations can be made through spoken or written words, or implied from an accused’s conduct.
Where an accused does not know for certain that the representation is false, but makes it recklessly without any belief in its truth, this is sufficient for a finding of guilt. A court will look at the accused’s state of mind at the time the representation was made to determine whether or not the representation was reckless.
Where an accused makes a representation which is true at the time it is made, but later becomes false, and the accused remains silent about the change, this can be considered in some circumstances to be a deception.
Where the alleged deception is as a result of a broken promise, the Prosecution must show that the accused never intended to keep the promise to be found guilty of the charge.
Deception in this case includes representations made to computers and machines which result in a response which is not authorised.
Separate to the deception, the Prosecution must also prove that the accused was dishonest. Generally the two go hand in hand, but there are some circumstances where a person has been deceitful, but not dishonest because they believed themselves to be the rightful owner of the property.
Obtaining Financial Advantage By Deception
Obtaining property by deception and obtaining financial advantage by deception are separate charges, however the same elements are required for an accused to be found guilty for both charges. A financial advantage includes evading a debt or charge, obtaining an improvement in terms or being granted loan and being given the opportunity to earn greater remuneration.