Access Flashcards
Define access under s248
Define the term access under S248
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
Explain 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 purpose to be proved under S249(2) to be successful what intents must be proved?
For a charge to be successful it must be proved that the offender accessed any computer system with INTENT, dishonestlt or by deception and without claim of right
(a) to obtain any property, privilege, service, pecuniary advantage, benefit or valuable consideration: or
(b) to cause loss to any other person
Explain the distinction between offences under S249(1) and 249(2)
S249(1) is directed at a situation where a person has actually accessed a computer system, obtains the offending material or causes loss, whereas S249(2) is directed at someone who actually accesses the computer system with intent regardless of the result
Describe a situation where a person nay not be physically present at a computer to access it
A person may not be physically present at a computer but can gain access to it via sofrwarebthat remotely infects computers
Deception S240(2)
(a) a false representation, whether oral, documentary or by conduct where the person making the representation I tends to deceive any other person and
(i) knows that it is false in a material particular; or
(ii) is reckless as to whether it is false in a material particular; or
(b) an omission to disclose a material particular, with intent to deceive any person, in circumstances where there is a duty to disclose it; or
(c) a fraudulent device, trick or stratagem used with intent to deceive any person
What is required to prove a false representation?
That there was an intent to deceive
That there was a representation by the defendant
That the representation was false and that the defendant either
Knew it to be false in a material particular or was reckless whether it was false in a material particular
Obtain
Obtain, in relation to any person, means obtain or retain for himself or herself or for any other person
Representations can be made in three ways or a combination of three ways. What are these?
Orally, documentary or by conduct
What are the differences between obtaining property by deception and theft with regard to possession?
An important distinction between theft and obtaining by deception is that in theft the property is obtained without the owners permission and title is not passed on
Under what circumstances does a person keep title of good if they have fraudulently induced another to hand over goods with the intention that title will pass
Section 246(4) is an exception to the rule that you cannot get a better title than the seller. If the original purchase subsequently sells the goods to an innocent buyer then the title has been made legal
How can you avoid title?
Take all possible steps to bring it to the drivers notice eg phone, text, email, letter
By advising police that the property has been obtained by deception
When is forgery complete
Forgery is complete as soon as the document is made with the intent described in subs(1) of S256 or with the knowledge and intent described in subs(2)
Define claim of right
Claim or right, in relation to any act, means a belief at the time of the act is a proprietary or possessor right in property in relation to which the offence is alleged to hVe been committed, although that belief may be based on ignorance or mistake of fact or any matter of law other than the enactment against which the offence is alleged to have been committed
Define Cameron v R
Recklessness is established if:
(a) the defendant recognised that there was a real possibility that:
(i) his/her actions would bring about the procmscrived result; and/or
(ii) that the proscribed circumstances existed; and
(b) having regards to that risk those actions were unreasonable
What was held in R v MORLEY with regard to intent
The intention to deceive requires that the deception be practices in order to deceive the affected party. Purposeful intent must exist at the time of the deception
Actual possession
Potential possession
Actual possession arises where the thing in question is in a person’s physical custody or control
Potential possession arises when the person has the potential to have the thing in question in their control
Property
Includes real and personal property and any estate or interest in any real or wrongly property, money, electricity, and any debt and anything in action and any other right or interest
Privilege or benefit
Special right or advantage
Pecuniary advantage R v HAYES
A pecuniary advantage is anything that enhances the accused’s financial position. It is that enhancement which constitutes the element of advantage
Valuable consideration R v HAYES
A valuable consideration is anything capable off being valuable consideration whether of a monetary kind or of any other kind; in short, money or money’s worth
Dishonestly
In relation to an act or omission, means done or omitted without a belief that there was express or implied consent to or authority for the act or omission from a person entitled to give such consent or authority
Attempted use R v HAYES
An unsuccessful use of a document is as much use as a successful one. An unsuccessful use must not be equated conteptually with an attempted one. The concept of attempt relates to use not to the ultimate obtaining of a pecuniary advantage, which is not a necessary ingredient of the offence. Because use does not have to be successful it may be difficult to draw a clear line between use and attempted use.
Document
Includes part of a document in any form and includes:
Paper/material containing anything that can be read
Photos, negatives and related items
Discs, tapes, cards and other devices/equipmeng on which information is stored and can be reproduced
R v Misic
Essentially a document is a thing which provides evidence or information or serves as a record
Define debt
Define liability
Debt means money owing from one person to another
Liability means a legally enforceable financial obligation to pay, such as the cost of a meal
What is a material particular
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
State four sources available through MBIE
Registrar of companies
Companies office
Official assignee
Insolvency services
What knowledge must an accuses have to be liable for making a false representation?
How can knowledge be established?
The accused must know or believe that it is false in a material particular, or be reckless whether it is false. Absolute certainty is not required and wilful blindness as to falsity of the statement will suffice.
Knowledge can be established by:
Admission
Implications from circumstances surrounding the event
Propensity evidence
Define computer system
(i) a computer; or
(ii) 2 or more interconnected computers; or
(iii) any communication links between computers or to remote terminals or another device; or
(iv) 2 or more interconnected computers combined with any communication links between computers or to remote terminals or any other device; or
(b) includes any part of the items described in para(a) and all related input
When may propensity evidence 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
Investigating credit card/cheque fraud. List info to be gathered from bank accounts manager
Account holders detaila
Date the account was opened
Account history and how operated
Date the credit card/cheque was reported missing
How and who reported it
Serial numbers of missing cheques
Details of chairs dishonoured and returned
Whether account holder is suspected of issuing valueless cheques
For propensity evidence to be admissible the ultimate issue is
The degree to which the privatise value of the evidence outweighs the prejudicial effect
List ingredients in forgery S256
Everyone is liable to imprisonment for a term not exceeding 10yrs who makes a false document with the intention of using it to obtain any property, privilege, service, pecuniary advantage, benefit or valuable consideration
When interviewing a victim who alleges that they have been defrauded what are two important questions that should be asked by an investigator?
That the false representation was believed and
That it was the consequence of that belief that the victim parted with her or her money
What are two core elements when it comes to an offence of theft under S220 theft by person in 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 it’s 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
Define false representation under S240(2)
A false representation, whether oral, documentary, or by conduct, where the person making the representation intends to deceive any other person and
(i) knows that it is false in a material particular; or
(ii) is reckless as to whether it is false in a material particular
Define credit Fisher V Raven
Credit refers to the obligation on the debtor to pay or repay and the time given for them to do so by the creditor. Credit does not extend to an obligation to supply services or goods
R v LAVERTY
It is necessary for the prosecution to prove that the person parting with the property was induced to do so by the false representation made
List the resources available to police in company fraud investigations
Police accountants and legal officers MBIE Commerce commission Financial markets authority Nz customs Liquidators and receivers
Company fraud: Cat a Cat b Cat c Cat d
A - large scale theft against employers by employees, usually people such as accountants and managers who use their position to manipulate the company’s financial systems
B - dishonestly offence committed against financial institutions by obtaining money through deception or GST fraud
C - commercial fraud committed against the public by people who through the guise of a company, entice people to invest money
D - dishonesty offence committed by professional people, solicitors and accountants, against their clients
Records available through SW or PO
Details of cheque or eftpos transactions or bank statements
Diary notes
Copies of letters sent to customers
The cheque register which may be comouterised
Stop payment notices
