Deception Flashcards
Obtain
In relation to any person, means to obtain or retain for himself or herself or for any other person
Property
Includes any real or personal property or any estate or interest is any real or personal property, money, electricity and and deb and anything in action and any other rights or interest
R v HAYES (Pecuniary advantage)
A PA is anything that enhances the accused financial position. It is that enhancement which constitutes the element of advantage.
EG. Cash from stolen goods, clothing or cash from credit card, a discount using student ID
Valuable consideration
Anything capable of being VC, whether of a monetary kind or of any other kind. In short money or money’s worth
Dishonesty
In relation to act or omission, means done or omitted without belief that there was expressed or implied consent to or authority for the act or omission from a person entitled to give consent or authority
R v HAYES (belief)
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.
Claim of right
In relation to any act means a belief at the time of the act of possessory right in the property in relation to the offence which is alleged
Nature of belief in claim of right
1) the belief must be belief in a possessory right in the property
2) belief must be about rights to the property in relation o which the offence is alleged to have been committed
3) the belief must be held at the time of the conduct alleged to constitute the offence
Taking
For tangible property, theft is committed by taking when the offender moves the property or causes it to be moved
Document
A document or part of a document”
a) paper or other material used for writing or printing
b) photograph or any photographic negative, film, negative etc
c) disc, tape, card in which sounds can be recorded on
d) any material derived, directly or not from any equipment
R v MISIC
“misc docs”
Essentially a document is a thing which provides evidence or information or serves as a record
228(1)(a) - Dishonestly taking or using a document
Dishonestly
Without claim of right
Takes OR obtains
Any document
With intent to obtain any:
- property
- service
- pecuniary advantag
- valuable consideration
228(1)(b) - Dishonestly taking or using a document
Dishonestly
Without claim or right
Uses or attempts to use
Any document
With intent to obtain any:
- property
- service
- pecuniary advantage
- valuable consideration
Proving uses or attempts to use
Must prove the offender used or attempted to use the document with the intent to obtain property, service, valuable consideration or pecuniary advantage
R v HAYES (uses or attempts to use)
An unsuccessful use of a document is as much use as a successful one
240(1)(a) - Obtaining by deception or causing loss by deception
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
240(1)(b) - Obtaining by deception or causing loss by deception
By any deception
Without claim of right
In incurring any debt or liability
Obtains credit
240(1)(c) - Obtaining by deception or causing loss by deception
By any deception
Without claim of 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
240(1)(d) - Obtaining by deception or causing loss by deception
By any deception
Without claim of right
Causes loss to any other person
Deception
Section 240(2)
a) A false representation, oral, documentary or by conduct where the person making the representation intents to deceive any other person and knows that it is false material or is reckless as to whether it is false in material
b) Omissions to disclose a material particular, with intent to deceive any person, in circumstances where there is a duty to disclose it
c) A fraudulent device, trick or stratagem used with intent to deceive any person
R v MORLEY
(rick n morty time travel)
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
R v CAMERON
Reckless is established if:
a) the defendant recognised that there was a real possibility that:
i) His/her actions would result in the proscribed circumstances
ii) The proscribed circumstances exists
b) Having regard to that risk, the actions are unreasonable
Part A is subjective, the defendant recognises the risk being possible
Part B is subjective and objective. Were the Defendant’s actions reasonable given the circumstances and social utility.
Intent
Two types of intent. An intention to commit the act and an intention to get a specific result
Representation
Not defined. Can include past/present facts, future event, exiting intention, opinion, belief, knowledge or other state of mind
The Defendant must ______ or _______ that the representation is ______ or is ______ about it. Includes wilful ________
Know
Believe
False
Reckless
Blindness
What must be proved for deception?
1) There was an intent to deceive
2) There was a representation from the defendant
3) The representation was false and the defendant knew about the false material particular OR reckless in material particular
Examples of oral/conduct/documentry
1) Claiming goods are yours but it’s hire purchase
2) Claiming you’re from uni to get discounts
3) False certificate of qualification
Allows to look beyond the literal meaning
R v MORLEY
Representations
Representations must relate to a statement of existing fact, rather than a statement of future intention
Continuing effect
Representation by words or conduct may have a continuous effect. Eg. Eating at a restaurant you have a expectation of paying, however if you decide to not pay then the continuing representation will become false
Silence/Non disclosure
Will not be regarded as a representation but there are exceptions.
EG. Label swapping, maintaining silence and deliberately not informing of incorrect price
Proving knowledge of false representation
Must prove the Defendant knew the representation was false in material particular or was reckless to it. Absolute certainty not required
- admission
- propensity evidence
- implication from the circumstances surrounding the event
Wilful blindness counts as well (putting head in the sand)
Material Particular
Something that is important, essential or of relevant detail or item
Omission
Means inaction, not acting. Can be a conscious decision of not acting or giving no thought
Device/Trick/Stratagem
- plan, scheme or trick
- an action or scheme undertaken to fool, outwit or deceive
- cunning plan or scheme to deceive
Privilege/Benefit in 240(1)(a)
A special right or advantage. There does not need to be a financial loss
Goods are obtained when….
The goods come under their control
Theft vs obtain
Theft is when property is obtained without owners permission and title is not passed on
R v COX
Possession has two elements. First the physical element of actual or potential physical custody or control. The second is the mental element which is the knowledge and intention of possessing an item
Lein
Lein is a right over another persons property to protect debt charged on that property.
EG. a garage owning a car until repair payments are paid off
Control
To exercise authoritative or dominating influence.
Just because it’s found at a premise, it is insufficient that the defendant had control
Debt & Liability
Debt - money owning from one person to another
Liability - legally enforceable financial obligation to pay eg. a meal
Both must be legally enforceable.
FISHER v RAVEN
(Credit)
Refers to the legally enforceable 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
Proving 240(1)(b)
- ID of suspect
- By deception and without claim or right
- Incurring any debt or liability
- Obtained credit
Credit may be obtained
- Loan
- Renting/leasing a dwelling
- Extending existing overdraft
R v McKAY
YipeKayay
Credit had been obtained on booking in but at that time the accused did not possess an intent to deceive
No intent to deceive when
- delay or non payment of debt
EG. incurring a debt and unable to pay off due to unforeseen circumstances - payment without because of dissatisfaction of services
EG. food not up to standard - Hire purchase
EG. goods sold from hire purchase = theft by conversion.
Induces
240(1)(c)
To persuade, bring about or give rise to
Inducement
Should be proved from the person that was defrauded
- false representation was believed
- that consequence of the belief is that they parted ways with their money
Also no deception if the false representation is not believed by the person to whom it is made even tho he still parts ways with his money
R v LAVERTY
(Lavatory, parting away)
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
Deliver/execute/endorse/alter/accept
Deliver - Surrender up someone or something
Execute - Put a course of action into effect
Endorse - Write or sign a document
Alter - Change in character or composition, typically in a small but significant way
Accept - Receive something
Causes
240(1)(c)
The cause must be substantial and caused the delivery, execution etc.
Loss
240(1)(d)
- Usually involve a financial loss
- Must be direct loss, does not include expected loss/anticipated future profits
- Loss must be induced by deception but it does not have to be the only factor
- Loss measures the extent of the victims position prior to the deception
Person
240(1)(d)
Could be a person or company or other organisations
Proving 240(1)(d)
- Loss caused by deception
- Reasonable foreseeable some more than trivial loss would occur
- Need to prove the loss was intentionally caused
Punishment
Section 241 CA1961
$1000 plus - 7 years
$500 - $1000 - 1 year
Under $500 - 3 months
Propensity defined
Section 40 Evidence Act 2006
Evidence that shows a persons acts a certain way or particular state of mind. Evidence of act, omissions or circumstances in which the person has been involved in
Assessing the value of propensity
Section 43 Evidence Act 2006
When assessing the value of propensity evidence:
- frequency of acts, omissions, events or circumstances [AOEC]
- connection in time in between AOEC
- similarities between AOEC
- number of similar allegations against defendant
Propensity admissibilty
Courts to decide if it is propensity. Better chance of propensity with specific offences with a unique methodology or pattern
Title
Legal right to the property
Voidable title
Is when title is obtained by deception, fraud, duress or misrepresentation. The title can be voided by the seller.
However if someone buys the goods innocently before the title is voided then the buyer obtains good title
Section 149 Contract and Commercial Law Act 2017
Sale by person not the owner
Sale by person not the owner
Section 149 Contract and Commercial Law Act 2017
Goods sold by person not the owner and has no authority or consent from the owner to sell. The buyer acquires no better title unless the owner’s conduct prevents them from denying the sellers authority to sell
Sale under voidable title
Section 151 Contract and Commercial Law Act 2017
The seller of the goods has voidable title, but the title has not been voided at the time of sale. Then the buyer will receive good title providing the buyer purchased the goods in good faith and unaware of the defect of title
Theft vs obtaining by deception
A thief never gets title. However if a person obtains something by deception the title will pass (voidable title)
Voidable title
Any title that has been obtained by deception, fraud, duress or misrepresentation. Title can be voided by the seller
Section 151 Contract & Commercial Law act 2017
Sale under voidable title
Receiving and title
If title has been voided then the buyer could be liable to receiving
Theft by conversion
Goods obtained on hire under false representation is deception, then the selling of these goods is theft by conversion
Section 220 - Crimes Act 1981
Theft by person in a special relationship
Proving theft by person in a special relationship
1) Defendant has received property on terms or conditions on what he/she can do with the property or proceeds or act in any way
2) Intentionally departed from the relevant obligation
Mental elements of theft by person in a special relationship
1) Defendant must know acquisition of the property was on terms and requirements. Such as account for the property or proceeds or to deal with the property or its proceeds in accordance with the direction of another person.
i) This will be met if the Defendant is aware there are terms of some kind affecting the freedom of action
2) Intentionally departed from the obligations
What section is Forgery
Section 256(1), CA1961 - 10 year offence
Makes a false document
With intent to use it
Obtain any
Property, privilege, service, benefit, PA, VC
When is forgery complete
As soon as the document is made with knowledge and intent, even if the document is uncompleted (256(4))
Forgery 256(2) CA1961
256(2), CA1961 - 3 year offence
Makes a document
Knowing it to be false
With the intent that it in any way be used or acted upon in NZ or elsewhere, as genuine
Essentially means no real financial or other advantage but only to mislead with the false document
Does defendant need to use a document in forgery?
No need to use a document in forgery, as long as there is intention to use it. Defendant must know the document is false
False document
A document that lies about itself or intended to convey a lie where it has been written by someone intending to pass it off
Alterations for a false document may involve
ROADIE
Removal of material or otherwise
Obliterations
Additions
Deletions
Insertions
Erasures
Examples of forgery
- Doing an exam for another person and writing their name
- Forging letters of recommendation in CV
- Falsely completing a witness statement
Is an intent to deceive an essential element of forgery?
No, the defendant must only know the document was false and:
- intended to use it to obtain….or
- used or acted it to be genuine
Section 257 - Using forged document
10 years
- Uses obtain any P/S/P/B/VC/PA
- Uses if it was was genuine
- causes any other person to use it as if it was genuine
Knowledge in using a forged document
- Must know the document was forgery (a false document)
- It is actually a false document
- Defendant knew the document was made with knowledge and intent
Can using a forged document made/altered overseas be an offence under 257?
Yes
Section 258 - CA 1961
10 year offence
With intent to obtain by deception
Any P/S/P/B/PA/VC
or cause loss to any other person
- CARD or causes any document to CARD
- Makes a document or causes a document to be made that is a reproduction
Meaning of CARD in Section 258 - CA 1961
Concealing - actual hiding, denial of it or not producing it
Alteration - changed in some matter
Reproduction - producing a copy or imitation
Destruction - end existence of
Meaning of causes to CARD in Section 258 - CA 1961
Causes CARD means:
- arranging the necessary actions by another
- by a computer system or device that may CARD the document
When is Section 258 - CA 1961 complete?
As soon as the alteration or document is made with intent to CARD
Mental elements for Section 258 - CA 1961
1) An intent to obtain by deception any P/S/P/B/PA/VC
or
2) An intent to cause loss
Cause loss in Section 258 - CA 961
Loss does not have to be via deception. It can be the destruction of documents cause the loss.
Forgery vs CARD documents with intent to decieve
In Forgery only intent to deceive is required not an intent to obtain by deception
In CARD a document, must prove that the offender intended to obtain by deception
Section 258 - CA 1961
Concealing, altering, reproducing or destroying any documents with intent to deceive
Section 259 - CA1961
Using altered or reproduced document with intent to deceive
Section 259 CA 1961 - Using altered or reproduced document with intent to deceive
10 year offence
- Knowing any document made or altered in the manner and intention in section 258
- With intent to obtain any
- P/S/P/B/PA/VC
or
- Cause loss to any other person
Uses or deals with or acts upon the document or causes anyone to use to deal with or act upon the document
Is it an offence using a document that was altered or reproduced overseas in NZ?
Yes
Mental elements in Section 259 CA 1961
1) Know that the document has been altered with intent to deceive
2) Intended by the defendant or cause any other person to obtain by deception any P/S/P/B/PA/VC
3) Intention to acquire or retain the property or to cause loss
CA1961
256
257
258
259
256 - Forgery
257 - Using forged document
258 - Concealing, altering, reproducing or destroying a document with intent to deceive
259 - Using altered or reproduced document with intent to deceive
Access (computer crime)
Means instruct, communicate with, store data in, receive data from, or otherwise make use
Widely defined and covers almost all interactions.
Authorisation
Granting authorisation on a person or under a rule of law or court
Computer system
(a) A computer; OR
Two or more interconnected computers; OR
Any communication links between computers or to remote terminals or another device; OR
Two or 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 in paragraph (a) and all related input, output, processing, storage, software or communication facilities and stored data
Section 249 - CA 1961
Accessing computer system for dishonest purpose
(1) 7 year offence
- directly or indirectly
- access any computer system
- THEREBY
- dishonestly or by deception
- without claim or right
- obtains any P/S/B/P/PA/VC
or
- causes loss to any other person
(2) 5 year offence
- directly or indirectly
- access any computer system
- with intent to
- dishonestly or by deception
- without claim of right
- obtains any P/S/B/P/PA/VC
or
- causes loss to any other person
Differences between 249 (1) and (2) - Accessing computer systems for dishonest purpose
(1) - thereby, which means accessing and obtains the offending material or causes loss
(2) - intent, which means accessing with the intention to obtain material or cause loss, regardless of result
The benefit in Section 249 not only includes financial or pecuniary advantage but also….
Non pecuniary eg.
Police v Le Roy - a male gained access to ex partners email even when a protection order was in place. This constitutes a form of benefit
Section 250 - CA 1961
Damaging or interfering with a computer system
(1) 10 years
- intentionally or recklessly destroys, damages or alters any computer system and knows or ought to knows that danger to life would be a result
(2) 7 years
- intentionally or recklessly and without authorisation
(a) deletes, damages or modify any data or software in a computer system
(b) causes any data or software to be deleted, damaged or modify
(c) causes any computer system to fail or deny service to authorised user
Difference between 250(1) 250(2) 250(2b)
250(1) - knows or oughts to know that the destruction of computer system would be a danger to life
250(2) - damages computer system and that the defendant knew they had no authority
250(2b) - defendant has arranged the computer system to be damaged
Section 252 - CA 1961
Accessing computer system without authorisation
2 years
- intentionally accesses, directly or indirectly any computer system without authorisation, knowing or being reckless that he/she does not have that authorisation
Does a person have to be physically present to access a computer system?
No, it can be remote access.
