CIB 008 - Deception Flashcards
What are the procedures for investigating cheque/credit card fraud?
“IHCFLA”
Interview:
infmt/complainant
Contact bank - account holder name, when opened account history, number
Handwriting sample
CCTV
Forensics (doc section)
Locate offender
Arrest and prosecute
What are the types of investigations in company deception?
Category A - D
A = large scale thefts against employers by employees.
B = dishonesty offences against financial institutions by ppl outside obtaining money via deception
C = commercial deception committed against public
D = dishonesty offences committed by professionals in a position of trust
Liability: takes or obtains any document?
228(1)(a)
1- with intent to obtain any
2- PPSV - property, pecuniary adv, service, valuable consideration
3- dishonestly and
4- w/o COR
5- takes or obtains
6- any document
Intent to obtain?
The def must intend to obtain and obtain by deception
Def: Obtain?
Retain or obtain for themself
Def: property?
Includes real or personal property and any estate interest in such
Caselaw: HAYES v R (pecun adv)
A pecuniary advantage is anything that enhances the accused financial position
Definition of valuable consideration?
Anything capable of being a valuable consideration whether monetary or other kind.
In short moneys worth
Def: dishonestly?
w/o belief in express or implied consent from person entitled to give such consent
Caselaw: HAYES v R (claim of right)
Question is whether belief actually held not whether belief is reasonable.
Evidence of reasonableness may be relevant to issue of belief actually held
Def: COR?
Belief at time of act in a proprietary or possessory right - may be based on ignorance or mistake
Def: taking?
When property is moved by offender
4 parts of nature of belief required to prove in relation to claim of right?
1 - belief in proprietary/possessory right
2- related to property in question
3- belied held at time
4- belief actually held
Def: document?
Document or part of doc in any form and includes:
Paper/material capable being read
Photograph
Disc, tape, wire, card (“DTWC) which info/data recorded
Any other material which info supplied
Caselaw: R v MISIC?
Essentially a document a thing which provides evidence or info or serves as a record
Caselaw: HAYES v R(unsuccessful use doc)
An unsuccessful use of doc is as much use as a successful one. The concept of attempt relates to use not to obtaining a pecuniary advantage
Section 72 (1) - Attempts def?
Having intent to commit offence, does or omits act for purpose accomplishing object whether possible or not.
Section 72(3) - proximate act
Act may constitute attempt if sufficiently proximate and connected with offence
Liability: Using/attempt to use doc?
Section 228(1)(b)
1- with intent to obtain any
2- PPSV - property, pecuniary adv, service, valuable consideration
3- dishonestly and
4- w/o COR
5- uses/attempts to use
6- any document
Liability: obtain by deception?
240(1)(a)
1- by deception
2- w/o COR
3- obtains
4- ownership/possession/control of
5- any PPPSVB directly or indirectly
Liability: obtain credit by deception?
240(1)(b)
1- by deception
2- w/o COR
3- in incurring any debt or liability
4- obtains credit
Liability: altering doc capable pecuniary advantage
240(1)(c)
1- by deception
2- w/o COR
3- induces/causes other person to
4- “ODDAAEEM”
over deliver/destroy/accept/alter/endorse/execute/make
5- any doc capable being used derive pecuniary advantage
Liability: cause loss by deception?
240(1)(d)
1- by deception
2- w/o COR
3- causes loss to any other person
Def: deception? - 240(2)
A false representation oral/documentary/conduct- knowing/reckless it false
An omission to disclose material and duty to disclose
A fraudulent device, trick, stratagem
with intent to deceive any other person
A representation is not defined but what must it be capable of and contain?
Capable of being false so it must contain a proposition of fact
Caselaw: R v MORLEY (intent to deceive requires)
An intention to deceive requires the deception was practiced in order to deceive affected party. Purposeful intent necessary and must exist at time of deception
3 simple things to prove a deception?
A false representation was made
They knew it was false
Intended to deceive
Caselaw: CAMERON v R?
Defendant recognised real possibility actions would bring proscribed result and those actions were unreasonable
Caselaw R v MORLEY
(representations must relate)
Representations must relate to statement of existing fact rather than statement of future intention
What must the prosecution prove in relation to representations?
That the defendant knew the representation was false
How can a defendants knowledge that a representation is false be established?
(3 ways)
Admissions
Implications from circumstances
Propensity evidence
Def: omission?
Is inaction i.e. not acting
Definitions of device and trick and stratagem according to Oxford dictionary?
Device - PST - plan scheme or trick
Trick - ATD - action to deceive
Stratagem - cunning plan to deceive enemy
Caselaw: R v COX (possession)
Possession involves 2 elements the physical is actual or potential possession the 2nd is a combo of knowledge and intent, knowledge the substance is in their possession and an intention to exercise possession
Def: control?
To control something means to exercise authoritative or dominating influence over it
Def: pecuniary advantage?
Economic or monetary advantage
Def: debt?
Money owing from one person to another
Def: liability?
Means a legally enforceable financial obligation to pay
(Eg cost of meal)
Obtaining credit from incurring debt, what must be linked?
There must be a causative link between the debt and the obtaining credit
Caselaw: FISHER v RAVEN?
(Credit refers to)
Credit refers to the obligation on the debtor to pay/repay and the time given for them to do so by the creditor
When must the timing of the intention to deceive exist? (Part of deception def)
The intent to deceive must exist at the time when the deception is perpetrated
Caselaw: R v MCKAY (on appeal held)
On appeal it was held that the credit had been obtained on booking but at that time the accused did not possess an intent to deceive
Def: induces
To persuade bring about or give rise to
Who should prove an inducement and what should they prove?
Person who was induced should prove it.
They should prove the false representation (deception) was believed and because of that belief victim parted with their money
Caselaw: R v LAVERTY
(Necessary prosecution prove…)
Necessary for prosecution to prove that the person parting with property was induced to do so by the false representation
Meanings of:
Deliver over
Execute
Endorse
Alter
Accept
Deliver over - surrender up someone or something
Execute - put course action into effect
Endorse - sign a document
Alter - change something
Accept - receive something
Def: “any other person” element under cause loss offence.
Person incorporates real people and also companies and other organisations
Penalties for deception offences based on value of loss?
Over $1000 = 7 years
$501-$1000 = 1 year
Under $500 = 3 months
What is propensity evidence?
Evidence tends to show a persons propensity to act in a particular way or have a state of mind from evidence of acts omissions events or circumstances which person alleged to been involved
Section 43 - propensity evidence by prosecution about defendant. What is weighed up?
May offer only if probative value of evidence in relation to issue in dispute outweighs risk of prejudicial effect
What does the judge consider when assessing probative value of propensity evidence?
“Funts”
Frequency acts
Unusual acts extent
Number people making allegations
Time - connection
Similarity of acts
Evidence is relevant if?
It has tendency to prove/disprove anything of consequence in proceeding
What does title simply mean?
Legal right to property
Title is not defined in the crimes act how does the Oxford dictionary define title?
A right or claim to the ownership of property
Who never gets title?
A thief never gets title
Voidable title?
Title obtained by deception, fraud, duress or misrepresentation. This title can be voided by others
Section 149: contract and commercial law act 2017 - sale by person who is not owner. Summarise this?
Goods sold by person not owner and without authority or consent
Buyer acquires no better title to the goods than the seller had
Section 151: contract and commercial law act 2017 - sale under voidable title.
Outline how a buyer acquires good title?
(3 steps start to end)
Seller of goods has voidable title to goods
Sellers title has not been void at time of sale
Buyer buys goods in good faith and without knowledge of sellers voidable title
Buyer gets good title!
When can a person keep title of goods fraudulently obtained? 246(4) CA 61
If the deceit offender subsequently sells goods to an innocent buyer (not aware of defect in title) then title has been made legal
Is title obtained on hire purchase?
No, only until goods have been fully paid
Summise title when obtained by deception and what happens to title if it’s bought innocently?
Title will be voidable title in these cases. If an innocent purchaser buys goods obtained by a deception before title has been voided by original owner then the innocent purchaser is entitled to good title
Section 220 theft by person in special relationship.
What are the elements?
1- Received/possession/control of
2- any property
3- terms/circ”s
4- that persons knows requires them to
5- to account to other person for:
- Property received
- proceeds of property received
OR
Deal with:
- property
- proceeds of property
6- and intentionally (do one of above) otherwise than in accordance with those requirements
What are the 2 mental elements of a section 220 theft by person special relationship?
- know acquisition property on terms require defendant account for property
- aware terms effecting freedom of action and intentionally departed from their obligations
Elements of forgery?
section 256 CA 61
- makes a false doc
- with intention of using it to obtain
- PPPSVB
A false document means a document?
(4 things)
Whole or material part altered and purports to be made by any person:
- who did not make it
- did not authorise it’s making
- and doc has been altered by AEIOD and purports done so by person who didn’t
- made in name of person with intention pass as being made by some other person
A false document may be made by making any material alteration to a genuine document. These alterations might involve?
Additions
Erasures
Insertions
Obliterations
Deletions
When is forgery complete?
As soon as the document is made with knowledge and intent
4 examples of forgery?
- Writing exam in name of another
- modifying rego label
- forged letters recommendation for CV
- false statement service on summons
Elements of using a forged document?
- knowing a document to be forged
- use the document to obtain
- PPPSVB
An alteration to a document is a material alteration of it if it does what?
Increases the value or negotiability of a document
How can representations be made?
Orally
Documentary
By conduct
What are the differences in regard to possession between obtaining by deception and theft?
The possession in theft is obtained without the owners consent and no title is obtained
How can you void title re property obtained by some deception or fraud?
Communication to offender - taking of all steps to bring to their attention, letter/text/phone call
Computer crime - define access in relation to any computer system?
Instruct, communicate, store or receive data, from any computer system
What does a computer system mean?
- a computer
- 2 or more interconnected computers
- communication links between computers or to remote terminals
Elements accessing computer system for dishonest purpose?
249 CA 61
- directly or indirectly
- accesses any computer system and thereby
- dishonestly
- w/o COR
- obtains PPPSVB
OR - causes loss to any other person
Elements of accessing computer system without authorisation?
252 CA 61
- intentionally accesses
- directly/indirectly
- any computer system
- w/o authorisation
- knowing/reckless that not authorised to access computer system
Explain what access requires a person to have to “access” a computer system?
Access requires person to have:
form of connection w computer system which instructions/communications may pass
Definition of “lien” and an example?
A right over another’s property to protect a debt charged on that property
Eg
Mechanic repairs another persons vehicle places lien over until debt paid
Def: privelege?
A special right or advantage
Examples of a privelege?
- using another persons gym card to use gym
- access to medical services
- withdrawal of assault charge
- reduction in sentence
Def: incurring debt or liability
The debt or liability must be legally enforceable
Continuing representation?
A representation whether by words or conduct may be of continuing effect
Silence? (Re representations under deception)
If an incorrect understanding is implied to a defendant and they fail to negate that incorrect understanding
Eg:
Cashier processing item for wrong price and def knows but stays silent
Material particular means? (Deception def)
Something important or that matters
Def: loss?
Not defined but most cases involves financial detriment. The loss caused must be a direct loss.
List the case laws to know?
R v HAYES - pecun adv
R v HAYES - attempted use doc
R v HAYES - COR
R v MORLEY - false reps
R v MORLEY - intent deceive @ time
R v MCKAY - on appeal held
R v MISIC - document
R v COX - possession
CAMERON v R - reckless
R v LAVERTY - pros must prove
FISHER v RAVEN - credit refers to
Elements of using forged document?
257(1)
- knowing a document to be forged
- uses the doc to obtain
- PPPSVB
Give 3 examples of valuable consideration?
- monetary payment in return for goods and services
- goods given in return for services provided
- issuing false invoice to receive payments for goods never supplied
Define service
Limited to financial or economic advantage excludes priveleges or benefits
