008 Flashcards
Four types of Belief for Claim of Right?
- First, the belief must be a belief in a proprietary or possessory right in property. That is, there must be a belief that relates to an element of ownership of the property in question or a right to take or retain possession of it.
- Secondly, the belief must be about right to the ‘property in relation to which the offence is alleged to have been committed’.
- Thirdly, the belief must be held at the time of the conduct alleged to constitute the offence.
- Fourthly, the belief must be actually held by the defendant. The belief is not required to be reasonable or be reasonably held and may be based on ignorance or mistake.
Subject & Objective test for Recklessness?
When recklessness is an element in an offence the following must be proved.
- That the defendant consciously and deliberately ran a risk (a subjective test)
- The risk was one that was unreasonable to take in the circumstances as they were known
to the defendant (objective test – based on whether a reasonable person would take risk)
Proof of the inducement?
• The inducement should be proved whenever possible by direct evidence from the person alleged to have been defrauded. In practice the victim of the deception is usually questioned to elicit answers providing.
- that the false representation was believed, and
- that it was the consequence of that belief that the victim parted with his or her money.
Define the following terms referred to in section 240(1)(b)? (Debt and Liability)
a) Debt - Debt means money owing from one person to another
b) Liability - Liability means a legally enforceable financial obligation to pay, such as the cost of a meal.
Where a person has been induced to part with goods by deception, what are two steps he can take to avoid the deceiver’s title?
- Take all other possible steps to bring it to the Offender’s notice, e.g. by writing a letter
- Advise the police that the goods were obtained by deception.
To successfully prosecute a person on a charge of (using altered or reproduced documents with intent to deceive) under section 259 of the Crimes Act 1961, name three mental elements you must prove?
- Firstly, the defendant must know that the document had been altered with intent to deceive.
- Secondly, the defendant must have intended by the use of the document, or by causing another to use it, that it would obtain by deception any property, privilege, service, pecuniary advantage, benefit or valuable consideration or to cause loss to any other person.
- Thirdly, there must be an intention to acquire or retain the property etc, or to cause loss, “by deception”.
An offender knowingly presents to the retailer an item with two price tags for different amounts, aware that the higher amount is the correct price, he shows the lower price to the checkout operator and obtains the item for the lower price. He is apprehended by Police some two days later for this offence?
- What offence has the offender committed
- Who has title to the item obtained by the offender
- Obtains by Deception
* Title would belong to the Offender which has been obtained by deception.
The prosecution must establish either the defendant knows or believes his representation is false in a material particular, or is reckless as to whether it is false. State your understanding in relation to the term? (false in a material particular)
In R v Mallett it was held that “A matter will be a ‘material particular’ if it is something important or something that matters.”
Material particular is not defined in the Crimes Act and can be given its usual meaning of an important, essential or relevant detail or item.
The prosecution must establish either that the defendant knows or believes his representation is false in a material particular, or is reckless as to whether it is false. Absolute certainty is not required and willful blindness as to falsity of the statement will suffice.
Knowledge can be established by:
• An admission
• Implication from the circumstances surrounding the event
• Propensity evidence.
Investigations into company fraud complaints will usually involve enquiries with the Ministry of Commerce. State four possible sources available there?
- Registrar of Companies
- Companies Office
- Official assignee
- Insolvency Services.
Propensity evidence may be relevant in some deception cases. When may evidence of propensity be called in cases of deception?
Propensity evidence, whether on previous or later occasions to the offence charged, is admissible in cases of deception where there is a sufficiently strong connection between the offences.
Police investigating the fraudulent use of credit cards or cheques must conduct enquires with the bank where the account is domiciled. List the information an investigator must obtain from the bank accounts manager?
In all cases contact the accounts manager at the bank where the account is domiciled and find out:
· The account holder’s full name, occupation, private and business addresses and telephone numbers
· The date the account was opened
· The account history and how it has been operated
· The date the cheque book or credit card was reported missing
· How and by whom a loss was reported
· The serial numbers of any missing cheques
· Details of any cheques dishonoured and returned
· Whether the account holder is suspected of issuing valueless cheques.
Note: Also find out if there are other banks to which cheques have been returned and, if possible, details of the people and firms defrauded.
When interviewing a victim who alleges they have been defrauded, what two important questions should be asked by the investigator?
- That the false representation was believed, and
* That it was the consequence of that belief that the victim parted with his or her money.
What are the essential ingredients of the forgery offences as set out in section 256(1) of the crimes act 1961?
Everyone is liable to imprisonment for a term not exceeding 10 years who makes a false document with the intention of using it to obtain any property, privilege, service, pecuniary advantage, benefit, or valuable consideration.
You are investigating a cheque fraud series where the account has been opened and a chequebook obtained using fictitious details. Apart from the normal bank enquiries in relation to cheque offences, list four possible enquiries you should make regarding the offender opening the account with the bank
- The account number and the date it was opened
- The nature and amount of the first deposit
- Details of any other deposits
- The details used when the account was opened
- Descriptions of the suspect and any of their associates at the time
- The names and addresses of the employee who opened the account and any other employees who can identify the suspect. Interview these employees and obtain statements
- the serial numbers of the cheques supplied
- details of the dishonored cheques and the people or firms defrauded
What are essential ingredients of section 228 of the crimes act 1961 Taking or Using Documents?
Everyone is liable to imprisonment for a term not exceeding 7 years who, with intent to obtain any property, service, pecuniary advantage, or valuable consideration,—
(a) dishonestly and without claim of right, takes or obtains any document; or
(b) dishonestly and without claim of right, uses or attempts to use any document.
Set out the ingredients of the offence of obtaining credit by deception under section 240(1) (b) of the crimes act 1961
(1) Everyone is guilty of obtaining by deception or causing loss by deception who, by any deception and without claim of right,-
(b) in incurring any debt or liability, obtains credit
What are the two core elements when it comes to an offence under 220 theft by a person in a special relationship?
(a) that he or she have received property on terms or in circumstances which, to the accused’s knowledge, affect what the accused may do with the property or its proceeds or require the accused to act in accordance with the requirements of another person, and
(b) That the accused intentionally departed from the relevant obligation.
What is the difference between forgery and altering and reproduction of a document?
• The differences between the offences of forgery and altering or reproducing a document rest in the varying definitions of ‘document’ and ‘intent’.
• With forgery, an intent to deceive only is required, not an intent to obtain by deception.
• In the offence of altering, concealing, destroying, or reproducing a document, you must prove that the offender intended to obtain by deception.
• Any document can be altered or reproduced in the charge of altering, concealing, destroying, or reproducing a document. However, in a charge of forgery the document must be a ‘false
Document’ as defined in section 255 of the Crimes Act 1961.
List the things a judge may consider when considering propensity evidence?
(a) he frequency with which the acts, omissions, events, or circumstances which are the subject of the evidence have occurred
(b) the connection in time between the acts, omissions, events, or circumstances of the evidence and those of the offence for which the
defendant is being tried
(c) The extent of the similarity between the acts, omissions or events of the evidence and those of the offence for which the defendant is
being tried
(d) the number of persons making allegations against the defendant that are similar to the offence for which the Defendant is being tried
(e) Whether the allegations described in paragraph (d) may be the result of collusion or suggestibility
(f) The extent to which the acts, omissions, events, or circumstances of the evidence and those of the offence for which the defendant is
being tried are unusual
Takes ‘or’ Obtains A Document
Section 228(1)(a) CA1961 – (7yrs)
(With intent to obtain any Property, Service, pecuniary advantage or valuable consideration / Dishonestly / And without Claim Of Right / Takes ‘or’ Obtains any document)
Intent / Obtain / Property or Service or PA (Hayes v R 1) or VC (Hayes v R 2) / Dishonestly / Without Claim of Right / Takes or Obtains / Document / (R v Misic)
Uses or Attempts to use a document
Section 228(1)(b) CA1961 – (7yrs)
(With intent to obtain any Property, Service, pecuniary advantage or valuable consideration / Dishonestly / And without Claim Of Right / Uses ‘or’ attempts to use any document)
Obtaining By Deception (Property),
Section 240(1)(a), CA1961 –
(7yrs – Exceeds $1000 / 1yr - $500-$1000 / 3months – Under $500)
(By deception and without claim of right / obtains ownership or possession of, or control over / Any property, privilege, service, pecuniary advantage, benefit or valuable consideration, directly or indirectly)
Obtaining By Deception (Credit)
Section 240(1)(b), CA1961 –
(7yrs – Exceeds $1000 / 1yr - $500-$1000 / 3months – Under $500)
(By deception and without claim of right / In incurring any debt or liability, obtains credit)
Obtaining By Deception (Altering Documents)
Section 240(1)(c),
CA1961 (7yrs – Exceeds $1000 / 1yr - $500-$1000 / 3months – Under $500)
(By deception and without claim or right / 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)
Obtaining By Deception (Causes Loss)
Section 240(1)(d), CA1961 –
(7yrs – Exceeds $1000 / 1yr - $500-$1000 / 3months – Under $500)
(By deception and without claim or right / Causes loss to any other person)
Computer system means?
(i) A computer, or (ii) 2 or more interconnected computer, or
(iii) Any communication links between computers or to remote terminals or another device, or
(iv) 2 of more interconnected computers combined with any communication links between computers or to remote terminals or any other device; and
(b) Includes any part of the items described in paragraphs (a) and all related input, output, processing, storage, software, or communication facilities, and stored data.
Define Access – Computer offences:
The term ‘access’ in relation to any computer system, means instruct, communicate with, store data in, receive data from, or otherwise make use of any of the resources of the computer system
What actions would involve accessing a computer system?
Access requires that the person instructing or communicating with the computer system has some form of connection with the computer system through which instructions or communications may pass.
For a charge of accessing a computer system for dishonest purposes under section 249(2) to be successful, what intents must be proved?
Prove the offender (a) obtained any property, privilege, service, pecuniary advantage, benefit, or valuable consideration (OR) (b) causes loss to any other person.
What is the distinction between Section 249(1) and 249(2)?
Section 249(1) is directed at the situation where a person has actually accessed a computer system, obtains the offending material or causes loss, whereas Section 249(2) is directed at someone who actually accessed the computer system with that intent regardless of the result.
Describe a situation where a person may not be physically present at a computer to access it?
Person may not be physically present at a computer but can gain access to it via software that remotely infects computers.
Document
Includes part of any document in any form;
+ Paper / Material containing anything that can be read.
+ Photos, negatives and related items
+ Discs, tapes, card or other devices / equipment on which information is stored and can be reproduced.
