Deception Flashcards
Liability
Dishonestly taking a document
Section 228(1)(a) 7 Years Imprisonment
With intent to obtain any property OR service OR pecuniary advantage OR valuable consideration Dishonestly and without claim of right Takes OR Obtains Any document
Hayes v R - Pecuniary Advantage
A pecuniary advantage is anything that enhances the accused’s financial position. It is that enhancement which constitutes the element of advantage
Define Valuable Consideration
Hayes v R
The scope of valuable consideration is wider than a pecuniary advantage.
Hayes v R
Anything capable of being valuable consideration, whether of a monetary kind or of any other kind; in short money or money’s worth
For example
- monetary payment in return for goods and services
- goods given in return for services provided
- issuing a false invoice to receive payment for goods never supplied
Define Dishonestly
In relation to any act or omission, means done or omitted without a belief that there was expressed or implied consent to, or authority for, the act or omission from a person entitled to give such consent or authority
Hayes v R
Belief in relation to dishonesty
The question is whether the belief is actually held, not whether that belief is reasonable. However, reasonableness may be relevant as evidence on the issue of whether the belief was actually held
Belief may be either:
- that the act or omission was, expressly or impliedly, consented to by a person entitled to give consent or
- that the act or omission was authorised by a person entitled to authorise it
Belief has to be reasonable or based on reasonable grounds and is significant
Define Claim of Right
Claim of right, in relation to any act, means a belief at the time of the act in a proprietary or possessory right in property in relation to which the offence is alleged to have been committed, although that belief may be based on ignorance or mistake of fact or of any matter of law other than the enactment against which the offence is alleged to have been committed
What was the amendment to Claim of Right in the Crimes Amendment Act 2011
Where previously the defendant was required to have a belief that the act was lawful the revised wording of the definition requires that the defendant have, at the time of the act alleged to constitute the offence, a belief in a proprietary or possessory right in the property in relation to which the offence is alleged to have been committed
What are the four elements required for belief?
First, the belief must be a belief in a proprietary or possessory right in property
Secondly, the belief must be about rights 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
Define takes or obtains
Obtains means to obtain or retain for themselves or any other person.
Takes is not defined but taking is when the offender moves the property or causes it to be moved
Define document using R v Misic
Essentially a document is a thing which provides evidence or information or serves as a record
Define uses or attempts to use
Hayes v R
An unsuccessful use of a document is as much use as a successful one. An unsuccessful use must not be equated conceptually 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 element of the offence. Because the use does not have to be successful it may be difficult to draw a clear line between use and attempted use
Define relevant points of S72, Attempts
A question of law to decide whether an act is done or omitted with an intent to commit an offence
An act done or omitted with intent to commit an offence may constitute an attempt if it is immediately or proximately connected
Liability
Obtaining by Deception
Section 240(1)(a), CA1961
By any deception and without claim of right
Obtains ownership or possession of, or control over
Any property, or any privilege, service, pecuniary advantage, benefit or valuable consideration
Directly or indirectly
Define deception as per S240(2)
2 parts ((b) and (c))
(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
Define representation as per Simester & Brookbanks
It must be capable of being false so it must contain a proposition of fact
What must be proved for deception?
3 points
- 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
What is R v Morley in relation to an intention to deceive
An intention to deceive requires that the deception is practised in order to deceive the affected party. Purposeful intent is necessary and must exist at the time of the deception
Define false representation
Under the current law the representation must be false and the defendant 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.
In Carlos v R it was directed that each alleged misrepresentation should be included in a separate count
When is the offence of deception complete?
The defendant had the purpose of deceiving the victim or knew that the victim was virtually certain to be deceived
Note the recklessness in s240(2)(a) only relates to whether a representation is false in a material particular
State R v Morley in relation to representations by the defendant
Representations must relate to a statement of existing fact rather than a statement of future intention
Define the continuing effect for representations
In many cases representation by words or conduct may have a continuing effect. Eg ordering food at a restaurant represents that the diner will follow normal practice and pay for the meal afterwards - if they don’t pay the it would be a false representation and fall within s240
Define silence
As a general rule silence or non-disclosure will not be regarded as a representation, but there are exceptions to this such as where an incorrect understanding is implied from a course of dealing and the defendant has failed to negate that incorrect understanding
eg being told a price of an item then taking it to the checkout where a cheaper sticker price is on it, paying the cheaper option and being silent - guilty
Define knowledge in relation to representation
The prosecution must prove that the defendant knew that the representation was false in a material particular or was reckless as to its falsity. Absolute certainty is not required
Knowledge as per Simester & Brookbanks - knowing or correctly believing
May also be held to account if conduct has amounted to wilful blindness
How can knowledge be established
3 points
- an admission
- implication from circumstances surrounding the event
- propensity evidence
Define material particular
Not defined by the crimes act and can be given its usual meaning of an important, essential or relevant detail or item
What is R v Harney - recklessness
Recklessness means the conscious and deliberate taking of an unjustified risk. In NZ it involves proof that the consequence complained of could well happen, together with an intention to continue the course of conduct regardless of risk
When is the defendant liable by recklessness
If they are reckless as to whether the representation was false in a material particular. This means that the defendant was conscious of the risk that the representation was false in a material particular
What is the subjective/objective test for recklessness
Must be proved -
- That the defendant consciously and deliberately ran a risk (subjective test)
- That the risk was one that was unreasonable to take in the circumstances as they were known to the defendant (objective test)
Define an omission
Not defined by the act, an omission is an inaction. It can either be a conscious decision not to do something or not giving thought to the matter at all
Define a duty to disclose when it comes to deception
Along with showing an intent to deceive , s240(2)(b) the defendant was under a duty to disclose and that the defendant failed to perform that duty
Often originate in civil law for example a contractual relationship
Define a device, trick and stratagem
Device - a plan, scheme or trick
Trick - an action or scheme undertaken to fool, outwit, or deceive
Stratagem - a cunning plan or scheme especially for deceiving an enemy, or trickery
Underlying each term are the concepts of deceit and dishonesty
Note too that the scheme or trick must be fraudulent and here this means dishonest in the traditional moral sense
When is obtaining complete in relation to sending something by post
Complete at the time of posting
Define possession referring to R v Cox
R v Cox
Possession involves two elements. The first, the physical element, is actual or potential physical custody or control. The second, the mental element is a combination of knowledge and intention: knowledge in the sense of an awareness by the accused that the substance is in his possession and an intention to exercise possession
Define actual and potential possession
Actual possession arises where the thing in question is in a persons physical custody or control
Potential possession arises when the person has the potential to have the thing in question in their control
Define control
To control something means to exercise authoritative or dominating influence or command over it
Give four examples of pecuniary advantage
Basically means economic or monetary advantage
- cash from stolen goods
- clothing or cash obtained by a credit or eftpos card
- a discount (by using a student ID)
- avoiding or deferring payment of a debt
Define debt and liability incurred
The debt or liability (incurred) must be legally enforceable
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 must you prove for s240(1)(b) (debt, liability obtained credit)
- Identify the suspect
- They by deception and without claim of right
- In incurring any debt or liability
- Obtained credit
Define obtaining credit
Obtaining credit requires a debtor to gain a creditors agreement to the deferred payment of a debt or obligation. The credit obtained must be in respect of a monetary obligation
Define obligation to pay referring to 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
Define legally enforceable
The obligation to pay must be legally enforceable against whomever the credit is obtained (usually the defendant)
Define 3rd person credit
Adams on Criminal Law held that credit must be obtained by and given to the defendant personally
3 situations of 3rd person credit
- obtaining money on loan
- extending existing overdraft facilities
- renting or leasing a dwelling
Define the intention to deceive in relation to gain credit
Gaining credit is not of itself unlawful unless it is accompanied by an intent to deceive
Define the timing of the intention to deceive referring to R v Mckay
Intention to deceive must exist at the time when the deception is perpetrated.
R v McKay
On appeal it was held that the credit had been obtained on booking in but at that time the accused did not possess an intent to deceive
Give two examples of obtaining credit
To enter a restaurant, sit at a table and order a meal without any intention of paying for it later is obtaining credit by deception
If a shopkeeper mistakes the customer for someone else and gives credit, the customer is guilty of obtaining credit by deception if they are aware of the mistake and accept the credit with no intention of paying later
Give an example where a non-payment of debt is not deceit
Unable to pay due to unforeseen circumstances, loss of money or oversight is not deceit
Define deception through a hire purchase
Where goods are obtained on hire purchase by a false representation the offence committed is deception.
However, if the offender later sells the goods to another, the offender commits theft by conversion. The offender never receives title for goods fraudulently obtained on hire purchase
How to prove inducement
Victim questioned to get answers
- 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 is R v Laverty in relation to inducement
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
Give the definitions of deliver over, execute, endorse, alter and accept
- Deliver over is to surrender up someone or something
- Execute is to put a course of action into effect
- Endorse is to write or sign on a document
- Alter is to change in character or composition, typically in a comparatively small but significant way
- Accept is to receive something
Define loss
Loss caused by deception must be a direct loss, indirect loss is not included
There is no requirement in s240(1)(d) that the person who suffers the loss be the person who is deceived
Define to any other person
Legislation provides a wide definition of the term person that incorporates not only real people, but also companies and other organisations
What needs to be proved for s240(1)(d) causing loss to any other person
R v Morley
3 points
R v Morley said that:
- the loss was caused by a deception
- it was reasonably foreseeable some more than trivial loss would occur but
- need not prove the loss was intentionally caused
There must be loss to any other person, but there is no requirement that there be any benefit to anyone
What are the deception penalties
- exceeds $1000 - 7 years
- $500 - $1000 - 1 year
- under $500 - 3 months
Define propensity
Propensity - evidence that tends to show a persons propensity to act in a particular way or have a particular state of mind, being evidence of acts, omissions, events, or circumstances with which a person is alleged to have been involved
Does not include evidence of an act or omission that is
- 1 of the elements of the offence for which the person is being tried or
- the cause of action in the proceeding in question
A party may offer propensity evidence in a civil or criminal proceeding about any person
Define when the prosecution can offer propensity evidence against the defendant
- The prosecution may offer propensity evidence about a defendant only if the evidence has a probative value in relation to an issue in dispute which outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant
When assessing the probative effect the judge may consider:
- the frequency
- the connection in time
- the extent of the similarity
- the number of persons making allegations
When assessing the prejudicial effect the judge MUST consider:
- whether the evidence is likely to unfairly predispose the fact-finder against the defendant and
- whether the fact-finder will tend to give disproportionate weight in reaching a verdict to evidence of other acts or omissions
When is propensity admissible in deception cases
Whether previous or later occasions to the offence charged is admissible where there is a sufficiently strong connection between the offences
The ultimate issue is the degree to which the probative value of the evidence outweighs its prejudicial effect
Define title
Title simply means a legal right to the property
Difference between theft and obtaining by deceit
A thief never gets title
Define voidable title
A title obtained by deception, fraud, duress or misrepresentation is called a voidable title. This means that the title can be avoided by the seller
What do you need to do to avoid title?
To avoid the title one must do one of the following:
- communicate with the seller
- take all other possible steps to bring it to the sellers notice by writing a letter, text, phone call etc
- advise the police that the vehicle was obtained by deception
What are the two parts to receiving after restoration to owner
(a) any property stolen or obtained by any other imprisonable offence has been returned to the owner or
(b) legal title to any such property has been acquired by any other person, a subsequent receiving of it is not an offence, even though the receiver may not know that the property had previously been stolen or obtained by any other imprisonable offence
Define money when it comes to title
Money gets a good title even though it may be clearly proved to have been stolen
Does the deceiver get title?
Yes if obtained by deception when they get possession because the giver of goods consents
Define Theft by person in special relationship
s220(1) This section applies to any person who has received or is in possession of, or has control over, any property on terms or in circumstances that the person knows require the person-
(a) to account to any other person for the property, or for any proceeds arising from the property or
(b) to deal with the property, or any proceeds arising from the property, in accordance with the requirements of any other person
Whats needed to prove theft by person in special relationship
7 years imprisonment no matter the value
- that he or she have received property on terms or in circumstances which, to the defendants knowledge, affect what the accused may do with the property or its proceeds or require the defendant to act in accordance with the requirements of another person and
- that the defendant intentionally departed from the relevant obligation
Define forgery s256
(1) 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
(2) Everyone is liable to imprisonment for a term not exceeding 3 years who makes a false document, knowing it be false, with the intent that it in any way be used or acted upon, whether in NZ or elsewhere, as genuine
What is the test for a document
May be whether the writing conveys the same message as the spoken word in the minds of all people able to read it
Define using a document when it comes to forgery
There is no requirement that the defendant use the document, as long as the intention to do so is present. The defendant must know that the document is false
List alterations to make a false document
additions insertions deletions obliterations erasures removal of material otherwise
A false document can be made by making material alterations to a genuine document
An alteration is a material alteration if it increases the value or negotiability of a document or instrument
When is forgery complete
Complete as soon as the document is made with the knowledge and intent
Intent for forgery
Knowing the document was false they intended:
- to use the false document to obtain or
- that the false document be used or acted on as genuine
It must also be proved that the offender intended to deceive by means of that which is false also intended that the document be used to mislead
There is no requirement that the document be put to its intended use
The forgery may be complete even if the document is not completed or is not in a legally effective form
Give examples of forgery
- writing an examination paper in the name of another person who is required to sit the exam
- pre-dating a deed to give it priority over another
- forging letters of recommendation for inclusion in a CV that are necessary to obtain a position
- falsely completing a statement of service on a witness summons
What do you need to have for s257 using forged documents
You must prove that the defendant knew the document was a forgery the time of the physical act of using, dealing with or acting upon it
Also must prove:
- the document was false
- the user knew that the document had been made with the knowledge and intent required under s256
Define the difference between forgery and altering
With forgery, an intent to deceive is only 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
What must be proved for using altered or reproduced document with intent to deceive s259
The prosecution must prove that the document in question had previously been altered with intent to deceive, though it would not seem to be a need to identify the person or persons who had altered it
What is a computer
Computer system means
- a computer or
- 2 or more interconnected computers or
- any communication links between computers or to remote terminals or another device or
- 2 or more interconnected computers combined with any communication links between computers or to remote terminals or any other device and
- includes any part of the items described above and all related input, output, processing, storage, software, or communication facilities, and stored data
It encompasses one computer, a network of computers or a computer connected to the internet with the potential of connecting to millions of networked computers
Define access in computer crime
Covers almost all interactions with a computer system such as using a computer at work and more remote forms of access such as viewing a website or using a virus
Access requires that the person instructing or communicating with the computer system has some form of connection with the computer system
Define the distinction between s249(1) and s249(2) (Accessing computer system for dishonest purpose)
s249(1) is directed at the 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 that intent regardless of the result
Define s250 damaging or interfering with a computer system
(1) intentionally or recklessly destroys, damages, or alters any computer system where danger to life is likely to result
(2) intentionally or recklessly, without authorisation, knowing not authorised, or being reckless as to whether authorised -
- damages, deletes, modifies or interferes software or data
- causes the same above but in another computer
- causes any computer to fail or deny service to an authorised person
Define s252 accessing computer system without authorisation
2 years for person who intentionally accesses, directly or indirectly, any computer system without authorisation, knowing that he or she is not authorised to access that computer system, or being reckless as to whether or not he or she is authorised to access that computer system
Does not apply to person who has authorisation
Liability
Dishonestly using a document
Section 228(1)(b) 7 Years Imprisonment
With intent to obtain any property OR service OR pecuniary advantage OR valuable consideration Dishonestly and without claim of right Uses OR Attempts to use Any document
Liability
Obtaining by deception (1)(b)
s240(1)(b) CA1961
By deception and without claim of right
In incurring any debt or liability
Obtained credit
Inducing or causing to deliver etc by deception s240(1)(c)
Ingredients
By deception and without claim of right
Induced or caused 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
Liability
Causing loss by deception
s240(1)(d) CA1961
By deception and without claim of right
Caused loss to any other person
Steps for investigating deception offences
Interviewing
- interview informant/complainant
- contact account manager
- obtain a sample of the suspects handwriting
- obtain CCTV
Ongoing enquiries
- liaise with investigations officer
- handle documents correctly
- inform colleagues
Locating offender
- check relevant addresses
- follow up obvious leads - regos, phone numbers
- if no suspects fingerprint cheques/vouchers
- interview suspect
Preparing the prosecution
- obtain supervisors authority to charge
- prepare the file
People who can help
Police accountants and legal officers MBIE Commerce Commission Financial Markets Authority NZ Customs Liquidators and receivers
What are the four categories of deception offences
Category A
- large scale thefts and other dishonesty offences against employers by employees - usually people such as accountants and mangers who use their position to manipulate the company’s financial systems
Category B
- dishonesty offences committed against financial institutions by people outside the institution obtaining money through deception. Includes GST deception against IRD by businesses
Category C
- commercial deception committed against the public by people who, either as individuals or through the guise of a company, entice people to invest money
Category D
- dishonesty offences committed by professional people in a position of trust, such as solicitors and accountants, against their clients
