Deception Flashcards
Section 228(1)(a)
Dishonestly
Without claim of right
Takes OR
obtains
Any document
With intent to obtain any property, pecuniary advantage, service, or valuable consideration
Section 228(1)(b)
Dishonestly
Without claim of right
Uses OR
Attempts to use
Any document
With intent to obtain any property, pecuniary advantage, service, or valuable consideration
Define obtain
To obtain or retain for himself, herself or any other person
Define property
Includes real and personal property, and any real estate or interest in any real estate or personal property, money, electricity, and any debt and anything in action and any other right or interest
Define service
Service is limited to financial or economic value and excludes privileges or benefits (R v Cara)
Define pecuniary advantage
Anything that enhances the accused’s financial position. It is enhancement which constitutes the element of advantage (R v Hayes)
What is the difference between pecuniary advantage and valuable consideration?
Pecuniary advantage can amount to a favourable consideration when it involves monetary advantage however the scope of valuable consideration is wider than pecuniary advantage
Define valuable consideration
Anything capable of being valuable consideration whether of a monetary kind or of any other kind, in short money or moneys worth (R v Hayes)
What are three examples of valuable consideration
-monetary payment in return for goods or services
-goods given in return for services provided
-issuing a false invoice to receive payment for goods never supplies
Define 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 consent or authority
R v Hayes - belief
The question 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
Define claim of right
Belief at the time of any act in a proprietary or possessory right in relation to the offence is to have allegedly been committed. Although belief may be based on if ignorance or mistake of fact
What are the four things for claim of right?
-Belief in a possessory or proprietary right in property - can be belief in someone else’s right
-Belied in relation to the property to which the offence is alleged to have been committed
-Belief held at the time of the conduct alleged to constitute the offence
-Belief must be actually held by the defendant
Define taking
For tangible property theft is committed by a taking when the offender moves the property or causes it to be moved
Define a document
Essentially a document is a thing which provides evidence or information or serves as a record (R v Misic)
The definition starts with ‘means’ rather than ‘includes’ because the definition is exhaustive
Define uses or attempts to use
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. Because the use does not have to be successful it may be difficult to distinguish between the two
Section 240(1)(a)
Obtaining property by deception
-by any deception
-without claim of right
-obtains ownership/possession/control over
-any property, pecuniary advantage, privilege, service, benefit, valuable consideration
-directly or indirectly
Section 240(1)(b)
Obtains credit by deception
-by any deception
-without claim of right
-incurring any debt or liability
-obtains credit
Section 240(1)(c)
Altering documents capable of deriving pecuniary advantage
-by any deception
-without claim of right
-induces any other person to deliver, make, execute, accept, endorse, destroy or alter
-any document or thing capable of being used to derive pecuniary advantage
Section 240(1)(d)
Causing loss by deception
-by any deception
-without claim of right
-causes loss to any other person
Define deception
-false representation, whether oral, documentary, or by conduct with intent to deceive any other person and knows that it is false or is reckless to it being false OR
-An omission to disclose material particular, with intent to deceive when they should disclose it
-A fraudulent device, trick or stratagem use with intent to deceive
How do you prove a false representation?
-intent to deceive
-there was a representation by the defendant
- the representation was false and the defendant knew it to be false In a material particular OR
-The defendant was reckless whether it was false in a material particular
What are the differences in obtaining by deception and theft in relation to possession?
With theft the property is obtained without the owners permission and title is not passed on
R v Morley - intent to deceive
An intention to deceive requires that the deception is practiced in order to deceive the affected party. Purposeful intent is necessary and must exist at the time of deception
R v cameron
Recklessness is established if;
The defendant recognized that there was a real possibility that his or her actions would bring about the proscribed result and/or
That the prescribed circumstances existed and having regard that risk those actions were unreasonable
What are the two elements of intent?
Intention to commit the act to get a specified outcome
What are three ways representations can be made?
Orally, conduct and documentarily
R v Morley - representation
Representations must relate to a statement of existing fact, rather than a statement of future intention
What is an example of continuing effect (representation)
Ordering food in a restaurant represents that the dinner will follow the normal practice and pay for the meal. If during the course of the dinner the diner decides to avoid that payment , the continuing representation will become false and obtaining the food will come within S240
What is the general rule when it comes to silence or non disclosure?
It will not be regarded as a representation, but there are exceptions to where there is an incorrect understanding implied from a course of dealing and the defendant has failed to negate that incorrect understanding
How can knowledge be established?
An admission
Implication from the circumstances surrounding the event
Propensity evidence
What must prosecution prove in relation to knowledge
The defendant knew the representation was false in a material particular or was reckless as to it’s falsity. Absolute certainty is not required
What is a material particular
An important, essential or relevant detail or item. Something that matters
What is an omission
A conscious decision not to do something or not giving thought to the matter at all
Where does a duty to disclose originate from?
Often from civil law, for example where the parties are in a contractual relationship
Define fraudulent device
A plan scheme or trick
Define trick
An action or scheme undertaken to fool, outwit or deceive
Define fraudulent stratagem
A cunning plan or scheme especially for deceiving an enemy or trickery
What are examples of benefit or privilege
Access to medical services
Reduction in sentence for an offence
Using another person’s gym membership to access gym facilities
Does not need to involves money or loss or injury to the person who has been defrauded
If the item that is being obtained is being sent by post when is the obtaining complete?
At the time of posting
R v Collister
Circumstantial evidence where an offenders intent can be inferred includes:
Offenders actions before during and after
Surrounding circumstances
Nature of the act itself
R v cox
Possession is two elements, mental and physical;
Mental possession is knowledge that you possess the item and an intention to possess the item
Physical possession requires physical custody or control over the item and is actual or potential possession
Special interest
It is sufficient if the person from whom the goods were obtained had some special property or interest in the goods without having actual ownership of them
E.g. a mechanic withholding a vehicle for payment and someone comes and takes the vehicle by false pretences
Examples of pecuniary advantage
Cash from stolen goods
Clothing or cash obtained by credit or EFTPOS card
A discount by using a student ID
Avoiding or deferring payments of a debt
Define debt
Money owing from one person to another. Must be legally enforceable
Define liability
Legally enforceable financial obligation to pay such as the cost of a meal
Define credit
Obligation on the debtor to pay or repay, and the time given for them to do so by the creditor
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
Credit - 3rd person
Credit can be obtained for themselves or another person
What makes gaining credit unlawful?
The presence of an intention to deceive at the time the deception is done
R v Mckay
Credit had been obtained on booking in but at that time the accused did not possess an intent to deceive
When does someone have to form their intent to deceive in relation to meals at restaurants?
When they either entered the restaurant or started their meal
What are two cases where intent to deceive is not disclosed
Delay or nonpayment OR
An inability to perform a bona fide intention
For example getting a loan and not being able to pay it back through unforseen circumstances, loss of money or oversight
What are the rules when goods are purchased by hire purchase with a false representation
The offence is deception. However if they later sell the goods to another the offender commits theft by conversion
Define induces
To persuade, bring about or give rise to. Another person (who doesn’t have to be the immediate victim) must be induced or cause to deliver over, execute, make, accept, endorse, destroy or alter the document or thing
How do you prove inducement?
By direct evidence from the person that was defrauded;
-that the false representation was believed AND
-that is was the consequences of that belief that the victim parted with his or her 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 causes
The defendant or an act by the defendant must be the substantial and operative cause of the delivery, execution etc, of any document capable of deriving pecuniary advantage
Define ‘thing’
A thing has a broad meaning must be tangible and capable of being used to derive pecuniary advantage
What is included in loss?
Loss involves financial detriment to the victim and it’s a direct loss
It doesn’t include expectation loss(loss of a bargain) and loss of future anticipated profits
In R v Morley what did the court conclude in relation to loss?
The loss alleged by the victim must have been induced by, or cause in reliance, upon deception. But the deception need not be the only operative factor, so long as it played a material part in occasioning the loss.
Loss should be assessed by the extent the complainants position before the deception has been deminished or impaired
Under 240(1)(d) does the person who suffers the loss need to be the person deceived?
No
What is required to be proven for causing loss by deception?
The loss was caused by deception
It was reasonably foreseeable some more than trivial loss would occur
Need not prove the loss was intentionally caused
There must be loss to any other person but there need not be benefit to anyone
What are the punishments for obtaining by deception or causing loss by deception
Over $1000 = 7 years
Between $500 and $1000= 1 year
Under $500 = 3 months
When assessing the probative value of propensity evidence, what may the judge consider?
The frequency
The connection in time between the acts
The extent of the similarity between the acts
The number of person’s making allegations against the defendant are the same or similar
Whether the allegations in paragraph above are a result of collusion
The extent in which the acts are unusual
When is propensity evidence admissable in cases of deception
Where there is a sufficiently strong connection between the offences
When is evidence relevant?
If it has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding
R v Sharma (propensity)
The ultimate issue is the degree to which the probative value of the evidence outweighs it’s prejudicial effect’
What is the difference in transfer of title when something is stolen or something is obtained by deceit?
A thief never gets title
What is a voidable title?
A title obtained by deception, fraud, duress or misrepresentation. This means the title can be voided by the seller
If person B obtains a vehicle by deception and therefore gains voidable title, then they sell it to person C in good faith what happens to title?
Person C obtains a good title if they purchase the vehicle with no knowledge of the defect of title
What is the exception to the rule “you can it get a better title than the seller”
Section 246(4) - if you purchase the goods from someone who has obtained it deceitfully, and you don’t know about it then you get good title, not voidable title
When does title change hands with a hire purchase?
When the full amount it paid
What are the two core elements for an offence under section 220?
That they have received property on terms or circumstances which, to the defendants knowledge, affect what the defendant may do with the property or it’s 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
What are four circumstances of an offence under section 220?
If the defendant intentionally;
-failed to account to any other person for property received by the the defendant
-failed to account to any other person for the proceeds of property received by the defendant
-dealt with property received by the defendant otherwise than in accordance with the requirements of some other person
-dealt with the proceeds of the property received by the defendant otherwise than in accordance with the requirements of the other person
What are the two mental elements of an offence under section 220?
The defendant must know that they are required to deal with the property or it’s proceeds OR account for the property or proceeds in accordance with the direction of the other person AND
intentionally departed from their obligations
Forgery 256(1)
Makes a false document
With intent of using it to obtain any
Property, privilege, pecuniary, service, valuable consideration
256(2)
Makes a false document
Knowing it to be false
With intent that it in any way be used or acted upon
Whether in NZ or elsewhere
as genuine
When is forgery complete?
Forgery is complete when the document is made with knowledge and intent
Forgery is complete even though the document isn’t complete
Define false document
The whole or any material part purports to be made, or altered or reproduced, by any person or on behalf of any person who did not authorise it’s making or in behalf of a fictitious person
What are examples of making alterations to genuine documents?
Additions
Insertions
Deletions
Obliterations
Erasures
Removal of material or otherwise
If you photocopy a false document is this a forgery?
No because the document doesn’t ‘tell a lie about it self’
When is forgery complete?
As soon as the document is made with knowledge and intent. To go on to use the document will be a separate offence
What is the specified intent needed for forgery?
At the time of the alleged act the defendant knew the document was false had intended either;
-to use the false document to obtain
-that the false document be use or acted on as genuine
What are examples of forgery?
-writing an exam in the name of another person
-Predating a deed to give it priority over another
-forging letters of recommendation to obtain a position
-falsely completing a statement of service in a witness summons
Section 257
Using forged documents
Uses the document to obtain PPPSV
OR
uses it as a genuine document OR
Causes any other person to use it or act upon it as if it was genuine
What must you prove in relation to the use of a forged document?
The defendant knew the document was forged at the time of using, dealing with or acting upon it
-the document was false
-the user knew that the document had been made with the knowledge and intent required under section 256
What are the three requirements for concealing something?
-the actual hiding of it
-the denial it exists
-the withholding of it in the face of a positive duty to produce it
Section 258
Altering, concealing, destroying, or reproducing documents with intent to deceive
-with intent to obtain by deception any PPPBSV OR
Cause loss to any other person
Alters, conceals, or destroys any document or causes any document to be altered, concealed or destroyed OR
Makes a document or causes a document to be made, that is in whole or part, a reproduction of any document
What is the difference between forgery and altering/reproducing a document
The definitions of document and intent
Forgery and intention to deceive is required, you don’t have to obtain anything
In altering a doc you must prove that the offender intended to obtain by deception
Any document can be altered or reproduced in the charge of altering. In a forgery charge the document must be a false document
Section 259
Using altered or reproduced document with intent to deceive
Knowing any document to have been made or altered in the manner, and with intent to obtain by deception any PPPBSV OR
Cause loss to any other person
Uses or dealt with or acts upon the document OR
causes any person to use or deal with, or act upon, the document
Under section 259, using an altered or reproduced document, where can it be produced
It can be altered or reproduced outside NZ, if it is being used, dealt with or acted upon within NZ
What are the three mental elements of an offence under section 259
-the defendant must know the relevant matters relation to the document, that the document had been altered with intent to deceive
-the defendant intended by the use of the document, or by causing another to use or rely on it to obtain by deception PPPSVB
-intention to acquire or retain the property or to cause loss by deception
What do you need to prove a charge of forgery 256(1)?
Made a false document
With intent to use it to obtain property etc
What do you need to prove a charge under section 256(2)
Made a false document
Knowing it to be false
With intent that it in any way be used or acted upon, as genuine
Essentially, a false document must lie about itself or intended to convey a lie
When is a material alternation
If it increases the value or negotiability of a document or instrument or
How do you avoid a title?
Take all possible steps to contact A
Advise the police the property is obtained by fraud
Define access in relation to a computer system?
Covers almost all interactions with a computer system. 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
Define computer system
All related input, output, processing, storage, software, or communication facilities and stored data. It can encompass one computer or a network of computers or a computer connected to the internet with the potential of connecting to millions of networked computers
What is the difference between the offence 249(1) and 249(2)
249(1) the person accesses the computer system and obtains the offending material or causes loss
249(2) the person accesses the computer system with intent regardless of the result
What is the difference between section 250(1) and 250(2)
(1) is forms of arson or wilful damage that endangers life
(2) is an offence to damage any computer system and the defendant must act without authority with the knowledge they are not authorised or reckless whether they are authorised
-250(2)(b) defendant arranges matters that the victims own operation of their computer system or the acts of third parties, will cause damage to the victims computer system
In company deception what are the types of investigation:
A: large scale thefts and other dishonesty offences against employers by employees
B: Dishonesty offences committed against financial institutions by people outside the institution obtaining money from it through deception
C: commercial deception committed against the public who entice people to invest money
D: dishonesty offences committed by professional people in a position of trust against their clients
Who do you seek advice from when investigating company deception?
Police accountants and legal officers
Ministry of business and employment
Commerce commission
Liquidators and investors
NZ customs
Financial markets authority
What are the three steps in investigating deception
Interview the informant
Contact the account manager at the bank
Find out information when the account has been opened with fictitious detail
What do you find out from the accounts manager at the bank?
Account holders full name and details Date account was opened
Account history
How and who reported the loss
Serial numbers of missing cheques
Date the credit card or cheque bok was reported missing
When an account has been opened with fictitious details what details do you find out?
Account number and date opened.
Nature and amount of first deposit
Any other deposits
Details used when it was opened
Details of suspect
Employees who can ID the suspect
