Deception Flashcards
Dishonestly taking or using a document (take or obtains)
Section 228(1)(a) CA 1961
- Dishonestly
- Without claim of right
- Takes or Obtains
- Any document
- With intent to obtain any:
- Property, Service, Pecuniary advantage, Valuable consideration
Dishonestly using a document (uses or attempts to use)
Section 228(1)(b) CA 1961
- Dishonestly
- Without claim of right
- Uses or attempts to use
- Any document
- With intent to obtain any:
- Property, Service, Pecuniary advantage, Valuable consideration
Obtaining by Deception 240(1)(a) CA1961
Obtaining by Deception Section 240(1)(a) CA 1961
- By any deception
- 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
Obtaining by Deception 240(1)(b) (obtains credit)
Obtaining by Deception Section 240(1)(b) CA 1961
- By any deception
- Without claim of right
- In incurring any debt or liability
- Obtains credit
Obtaining by Deception 240(1)(c)
Obtaining by Deception Section 240(1)(c) CA 1961
- By any deception
- Without claim of right
- Induces or causes any other person to deliver over, execute, endorse, accept, alter, make or destroy
- any document OR thing capable of being used to derive a pecuniary advantage
Causing Loss by Deception Section 240(1)(d)
Causing Loss by Deception Section Section 240(1)(d) CA 1961
- By any deception
- Without claim of right
- causes loss to any other person
Define Property
S2 CA1961 - Real and personal property, and any estate or interest in any real or personal property, (money, electricity) and any debt, and any thing in action, and any other right or interest.
R v Misic - Document def
A document is “A thing which provides evidence or information or serves as a record”
Hayes v R [x3]
A pecuniary advantage is - “Something that enhances the accused financial position”.
Valuable consideration is - “Anything that is money or monies worth. “
Attempts - “Unsuccessful use of a document is as much of an attempt as a successful one”.
R v Morley - intent
- “Intention to deceive requires purposeful intent at the time the deception is practiced.”
Define Deception (false representation)
Deception as defined in s240(2) CA1961
Deception means;
(a) 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; 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.
Under deception (false representation) what are the three requirements that need to be proved?
- There was an intention to deceive
- There was a representation by the defendant
- The representation was false; and that the defendant either:
(1) knew it to be false in a material particular OR (2) was reckless whether or was false in a material particular
Define title
A right or claim to the ownership of property
How is title Avoided?
Communicating it to the deceiver.
Taking all possible steps to bring it to the deceivers notice, by writing, letter, text etc.
Reporting the deception to the Police.
Define “Claim of Right” ?
A belief at the time of the act that you either owned or had a right to possess the property in question although it may be based on ignorance of law or fact
Nature of belief required for claim of right
- Belief in proprietary or possessory right in the property - a right of ownership.
- The belief must be about rights to the property in relation to which the offence is alleged to have been committed.
- The belief must be held at the time of the offence.
- The belief must be actually held by the defendant. The belief is not required to be reasonable and may be based on ignorance or mistake.
Define Obtain
Obtain means to retain for themself or any other person
Define dishonestly
An act or omission without belief that there was express or implied consent or authority from a person entitled to give such consent or authority.
Defines take
to move or cause property to be moved.
Define Intent
Deliberate act or omission with intent to obtain a specific result. Must be more than involuntary or accidental.
Hayes v R - Use of a document
An unsuccessful use of a document amounts to use of that document. Because the use does not have to be successful it may be difficult to draw a clear line between use and attempted use.
Difference between theft and obtaining by Deception
In theft the property is obtained without the owners permission and title is not passed on.
R v Cox - Possession
Possession involves two elements:
1. The physical element - actual or potential physical control.
2. Mental Element - Knowledge of the item and intent to exercise control over it.
Fisher v Raven
Credit is an obligation on the debtor to repay the creditor within the given timeframe.
Credit does not include supplying goods and services.
Timing of intent to deceive
The defendant must hold the intention to deceive at the time the credit or debit is obtained. The intent cannot be formed at a later date / time.
R v McKay
The accused did not possess an intent to deceive at the time of obtaining the credit (booking a motel room).
Define Induces
To persuade, bring about or give rise to.
Proof of inducement
- There was a false representation that was believed.
- It was a consequence of that belief that the victim parted with their money.
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.
Define deliver over
To surrender up someone or something
Define execute
To put a course of action into effect
Define endorse
To write or sign a document
Define Alter
To change in character or composition.
Define Accept
To receive something.
Define Loss
Financial detriment to the victim.
What did the court state the prosecution must prove in R v Morley in relation to causing loss by deception?
The prosecution must prove that;
- The loss was caused by deception.
- It was reasonably foreseeable that a more than trivial loss would occur, but
- The prosecution need not prove the loss was intentionally caused.
Thus, there is no requirement that there be any benefit to anyone.
How can you avoid title?
- Communicate title is void with the deceiver.
- Take all possible steps to bring it to the deceivers’ attention. eg. writing a letter.
- Advise Police that the item was obtained by deception.
What are some examples of forgery?
- Completing an exam using someone elses name.
- Pre- dating a deed to give it priority over another.
- Forging letters of recommendation in a CV
- Falsely completing a statement of service on a summons.
Define credit
Credit refers to a legally enforceable obligation on the debtor to pay or repay the debit within a timeframe.
To prove a charge of forgery under section 256(1) you need to prove what?
- They made a false document
- With intent to use it to obtain property, etc
To prove a charge of forgery under section 256(2) you need to prove what?
- Made a false document
- Knowing it to be false.
- with intent that it be used or acted upon as genuine
- A false document must lie about itself or intend to convey a lie.
When a person alters a document they might make what?
Additions, insertions deletions, obliterations, erasures or removal of material.
An alteration is a material alteration of a document?
Increases the value of or negotiability of the document or instrument.
When are goods ‘obtained’ by the defendant?
Goods are obtained by a defendant if the goods come under their control, even though they may not have physical possession of them. eg when an item is posted in the mail.
A representation can be made in three ways, or a combination of three ways. What are these?
A representation can be oral, documentary or by conduct, or a combination of all three.
When is forgery complete?
Forgery is complete as soon as the document is made with the relevant intent.
The intents are:
- Intent to obtain any property, privilege, service, pecuniary advantage, benefit or valuable consideration.
- Intent it will be used or acted upon as genuine.
Cameron v R
Recklessness is established if:
(a) the defendant recognised there was a real possibility that;
(i) his or her actions would bring about the proscribed result; and / or
(ii) The proscribed circumstances existed; and
(b) Having regard to that risk those actions were unreasonable.
Define Computer System
A computer or two or more interconnected computers and any communication links between computers or to remote terminal or other device; or
Two or more interconnected computers combined with any communication links between computers or to remote terminals or any other device.
Includes any input, output, processing, storage, software or communication facilities of the above.
Define access in relation to a computer system
In relation to any computer system access means to instruct, communicate with, store data in, receive data from or otherwise make use of any of the resources of the computer system.
Accessing Computer System for Dishonest Purpose Section 249(1)(a)&(b)
Accessing Computer System for Dishonest Purpose Section 249(1)(a)&(b)
- A person
- Directly or Indirectly
- Accesses any computer system
- And thereby
- Dishonestly or by Deception
- Without claim of right
(a) Obtains any property, privilege, service, pecuniary advantage, benefit or valuable consideration; or
(b) To cause loss to any other person.
Accessing Computer System for Dishonest Purpose Section 249(2)(a)&(b)
Accessing Computer System for Dishonest Purpose Section 249(2)(a)&(b)
- A person
- Directly or Indirectly
- Accesses any computer system
- With intent
- Dishonestly or by Deception
- 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.
What actions would involve accessing a computer system?
Having some form of connection with the computer system through which instructions or communications may pass.
To prove a charge of theft by a person in a special relationship under section 220(1), it is necessary to prove that the person knew they had to?
They had an obligation to:
- account to any other person for the property, or proceeds arising from the property.
OR
- deal with the property or proceeds of property in accordance with the requirements of some other person
And
They intentionally departed from the relevant obligation.
Define Fraudulent
Dishohnest in the traditional moral sense.
Define Debt
Debt means money owing from one person to another.
Define Liability
Liability means a legally enforceable financial obligation to pay, such as the cost of a meal.
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, what are the three mental elements you must prove?
- The defendant knows the document had been altered with intent to deceive.
- The defendant must intend to use the document to obtain any property, privilege, service etc or cause loss to any other person.
- There must be an intention to acquire or retain the property or to cause loss by deception.
How is the term representation interpreted (not defined) by the courts?
Examples of a ‘representation’ have included representations about:
- a past or present fact
- a future event
- an existing intention, opinion, belief, knowledge or other state of mind.
It must be capable of being false so it must contain a proposition of fact:
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.
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.
What information must be obtained from a bank in cases of credit card or cheque fraud?
• 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.
For propensity evidence to be admissible the ultimate issue is what?
The degree to which the probative value of the evidence outweighs the prejudicial effect
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 enquiries can be made regarding the opening of a fraudulent account?
• 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 the suggested sources of specialist information for fraud cases?
- Police accountants and legal section
- SFO
- MBIE (Ministry of Business, Innovation and Employment)
Ministry of Commerce
- Registrar of Companies, Companies office, Official assignee, Insolvency services.
- Commerce Commission (FTA & Pyramind Selling)
- Financial Markets Authority
- NZ Customs
- Liquidators and receivers.
R v Morley - Representations
Representations must relate to a statement of existing fact, rather than a statement of Future intention.
Define Debt
Money owing from one person to another
Define Liability
A legally enforceable financial obligation to pay, such as the cost of a meal.
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Hayes v R - Reasonableness re Dishonestly
Belief needs to be actually held, not reasonably held. Although reasonableness may be relevant when deciding if the belief was actually held
