DECEPTION Flashcards
Dishonestly takes or obtains a document s228(1)(a)
DISHONESTLY (Acting without a belief that there was expressed or implied consent from a person in a position to give consent or authority)
WITHOUT CLAIM OF RIGHT (A belief that the person has proprietary or possessory right to the property and has exercised this right. It must exist at the time the offence is committed, and the property must relate to the offence. Must be honest and genuine. May be based on ignorance or mistake of fact)
TAKES (Moves the property or causes it to be moved)
OR
OBTAINS (obtain or retain for themselves or another)
A DOCUMENT (Defined by s217 CA 1961, a document or part of a document in any form)
(R v Misic: A document is a thing which contains evidence or information or serves as a record)
WITH INTENT TO OBTAIN (doing a deliberate act with intent to get a specific result)
(R v Collister: Intent inferred by the circumstances, words and actions said before during and after, the surrounding circumstances and the nature of the act)
(R v Morley: Purposeful intent is necessary and must exist at the time of the deception)
PROPERTY (any real or personal, estate, interest, money, electrical, debt)
OR
SERVICE (R v Cara: service is limited to financial or economic value and excludes privileges or benefits)
OR
PECUNIARY ADVANTAGE (The thing must be tangible and capable of being used)
(Hayes v R: Anything that enhances the accused’s financial position)
OR
VALUABLE CONSIDERATION
(Hayes v R: Anything capable of being a valuable consideration, whether of a monetary kind or if any other kind. Money is money’s worth)
Dishonestly uses or attempts to use a document s228(1)(b)
DISHONESTLY (Acting without a belief that there was expressed or implied consent from a person in a position to give consent or authority)
WITHOUT CLAIM OF RIGHT (A belief that the person has proprietary or possessory right to the property and has exercised this right. It must exist at the time the offence is committed, and the property must relate to the offence. Must be honest and genuine. May be based on ignorance or mistake of fact)
USES (To use in any way)
OR
ATTEMPTS TO USE (Does or omits an act for the purpose of accomplishing his object, whether it was possible to commit the offence or not)
(Hayes v R: An unsuccessful use is as much a use as a successful one)
A DOCUMENT (Defined by s217 CA 1961, a document or part of a document in any form)
(R v Misic: A document is a thing which contains evidence or information or serves as a record)
WITH INTENT TO OBTAIN (doing a deliberate act with intent to get a specific result)
(R v Collister: Intent inferred by the circumstances, words and actions said before during and after, the surrounding circumstances and the nature of the act)
(R v Morley: Purposeful intent is necessary and must exist at the time of the deception)
PROPERTY (any real or personal, estate, interest, money, electrical, debt)
OR
SERVICE (R v Cara: service is limited to financial or economic value and excludes privileges or benefits)
OR
PECUNIARY ADVANTAGE (The thing must be tangible and must be capable of being used)
(Hayes v R: Anything that enhances the accused’s financial position)
OR
VALUABLE CONSIDERATION
(Hayes v R: Anything capable of being a valuable consideration, whether of a monetary kind or if any other kind. Money is money’s worth)
Define obtain
To obtain or retain for himself, herself or for any other person
Define property
PRIMED
Real and personal property
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
Example - A ‘thing’ (bike)
Define service (R v Cara)
Service is limited to financial or economic value and excludes privileges or benefits
Example - An activity (going to a mechanic or getting a haircut)
Define pecuniary advantage (R v Hayes)
Anything that enhances the accused’s financial position. It is enhancement which constitutes the element of advantage
Example - If the liability mentions money or cash
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 (R v Hayes)
Anything capable of being valuable consideration, whether of a monetary kind or of any other kind, in short money or moneys worth
Example - not money but used as if it was (exchanging goods)
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 supplied
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
Belief (Hayes v R)
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
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 ignorance or mistake of fact
What are the four things for claim of right?
- Belief in a possessory or proprietary right in property - belief in the ownership of property or a right to take or retain possession of it
- Belief in the rights to the property in relation 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 Document
(R v Misic)
Essentially a document is a thing which provides evidence or information or serves as a record
Must be capable of being used to derive pecuniary advantage
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. Because the use does not have to be successful it may be difficult to distinguish between the two
Obtains property by deception s240(1)(a)
BY ANY DECEPTION (Defined by s240(2) CA 1961, an omission to disclose a material particular with intent to deceive any person)
(R v Morley: 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 deception)
WITHOUT CLAIM OF RIGHT (A belief that the person has proprietary or possessory right to the property and has exercised this right. It must exist at the time the offence is committed, and the property must relate to the offence. Must be honest and genuine. May be based in ignorance or mistake of fact)
OBTAINS (To obtain or retain for themselves or any other person)
-
OWNERSHIP OF (title, a legal right or claim)
OR
POSSESSION OF (R v Cox: Possession involves two elements. Actual or potential physical control and mental, the awareness of possession and an intent to exercise)
OR
CONTROL OVER (Power of directing, demand)
-
PROPERTY (Any real or personal, estate, interest, money, electrical, debt, anything in action, any other right or interest)
OR
SERVICE (R v Cara: Service is limited to financial or economic value and excludes privileges or benefits)
OR
PECUNIARY ADVANTAGE (The thing must be tangible and must be capable of being used)
(R v Hayes: Anything that enhances the accused’s financial position)
OR
VALUABLE CONSIDERATION (Hayes v R: Anything capable of being a valuable consideration, whether of a monetary kind or if any other kind. Money is money’s worth)
OR
PRIVILEGE (A special right or advantage, not limited to pecuniary/ monetary/ financial gain)
OR
BENEFIT (A special right or advantage)
DIRECTLY OR INDIRECTLY
(example: for privilege or Benefit - using someone’s else gym membership to use the gym)
Obtains credit by deception s240(1)(b)
BY ANY DECEPTION (Defined by s240(2) CA 1961, an omission to disclose a material particular with intent to deceive any person)
(R v Morley: 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 deception)
WITHOUT CLAIM OF RIGHT (A belief that the person has proprietary or possessory right to the property and has exercised this right. It must exist at the time the offence is committed, and the property must relate to the offence. Must be honest and genuine. May be based in ignorance or mistake of fact)
IN INCURRING ANY
DEBT (Money owing from one person to another)
OR
LIABILITY (a legally enforceable financial obligation to pay)
OBTAINS (To obtain or retain for themselves or any other person)
CREDIT (Obligation on the debtor to pay or repay and the time given for them to do so by the creditor)
(example: someone going into a restaurant and walking out without paying)
Inducing or causing to deliver over by deception s240(1)(c)
BY ANY DECEPTION (Defined by s240(2) CA 1961, an omission to disclose a material particular with intent to deceive any person)
(R v Morley: 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 deception)
WITHOUT CLAIM OF RIGHT (A belief that the person has proprietary or possessory right to the property and has exercised this right. It must exist at the time the offence is committed, and the property must relate to the offence. Must be honest and genuine. May be based in ignorance or mistake of fact)
INDUCES (to persuade, bring about or give rise to)
(R v Laverty: It was the consequence of the belief of the false representation that caused the victim to part with their money)
OR
CAUSES ANY OTHER PERSON TO
-
DELIVER OVER (to surrender up someone or something)
EXECUTE (to put a course of action into effect)
MAKE
ACCEPT (to receive something)
ENDORSE (to write or sign on a document)
DESTROY (to end the existence of)
ALTER (to change in character or composition)
-
ANY DOCUMENT (Defined by s217 CA 1961, a document or part of a document in any form)
(R v Misic: A document is a thing which contains evidence or information or serves as a record)
OR
THING CAPABLE OF BEING USED TO DERIVE A PECUNIARY ADVANTAGE (The thing must be tangible and must be capable of being used)
(R v Hayes: Anything that enhances the accused’s financial position)
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 on a document
Define ‘alter’
To change in character or composition
Define ‘accept’
To receive something
Causing loss by deception s240(1)(d)
BY ANY DECEPTION (Defined by s240(2) CA 1961, an omission to disclose a material particular with intent to deceive any person)
(R v Morley: 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 deception)
WITHOUT CLAIM OF RIGHT (A belief that the person has proprietary or possessory right to the property and has exercised this right. It must exist at the time the offence is committed, and the property must relate to the offence. Must be honest and genuine. May be based in ignorance or mistake of fact)
CAUSES LOSS (direct loss caused by the deception, includes financial detriment to the victim and includes property or valuable things)
TO ANY PERSON (includes not only real people but also companies and other organisations)
(R v Morley: The loss alleged by the victim must have been induced by, or caused in reliance, upon the deception. But the deception need not be the only operative factor, so long as it played a material part in occasioning the loss)
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 OR
- A fraudulent device, trick or stratagem use with intent to deceive any person
Define ‘to any other person’
Includes not only real people but also companies and other organisations
How do you prove a false representation?
You must prove there was
- An 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
- was reckless whether it was false in a material particular
Intent to deceive (R v Morley)
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
Recklessness
(Cameron v R)
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 to that risk those actions were unreasonable
What are the two elements of intent?
- Intention to commit the act
- To get a specified result
What are three ways representations can be made and examples?
Orally: Verbally claiming to own goods that were subject to a higher purchase agreement
Conduct: Representing oneself to be a collector for a charity
Documentary: Completing a valueless cheque on an account knowing that there are no funds
Representation (R v Morley)
Representations must relate to a statement of existing fact, rather than a statement of future intention
What is an example of a continuing effect (representation)
Ordering food in a restaurant represents that the diner 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 the obtaining of 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
For example: Label swapping or changing price tags and allowing the cashier to charge the incorrect price
How can knowledge be established?
- An admission
- Implication from the circumstances surrounding the event
- Propensity evidence
Knowing is correctly believing. The defendant may believe something wrongly, but cannot know something that is false (Simester and Brookbanks)
What must prosecution prove in relation to knowledge
That the defendant knows or believes his representation is false in a material particular OR is reckless as to whether it is false
What is a material particular
An important, essential or relevant detail or item
A matter will be a material particular if it is something important or something that matters (R v Mallett)
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 Device
A plan, scheme or trick
Define trick
An action or scheme to fool, outwit or deceive
Define stratagem
A cunning plan or scheme to deceive an enemy or trickery
What are examples of benefit or privilege
- Access to medical services
- The withdrawal of an assault charge
- Reduction in sentence for an offence
- Using another person’s gym membership to access gym facilities by
Does not need to involve financial 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
Possession (R v Cox)
Possession involves two elements:
Physical - actual or potential physical custody or control
Mental - Knowledge by the accused that the substance is in his possession AND an intention to exercise possession
Special interest
Goods obtained by someone who doesn’t have ownership of them
For example: A garage owner had a right over the persons car until the payment of debt was made
Examples of pecuniary advantage
Economic or monetary 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, this means if the contract is void or illegal there will be no offence
Define liability
A 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
Obligation to pay
(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
For example where credit may be obtained include:
- obtaining money on a loan
- extending existing overdraft facilities
- renting or leasing a dwelling
What makes gaining credit unlawful?
When it is accompanied by an intent to deceive
Timing of intention to deceive
(R v Mckay)
The intention to deceive must exist at the time when the deception is perpetrated, a later decision not to pay is insufficient
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
This offence is obtaining credit by deception
What are two cases where intent to deceive is not disclosed
- Delay or non-payment 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, is not deceit
What are the rules when goods are purchased by hire purchase with a false representation
The offence is deception
If they later sell the goods to another the offender commits theft by conversion
The offender never receives title for goods fraudulently obtained in hire purchase
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 caused 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 it was the consequence 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
The accused must cause the loss
Define ‘thing’
A broad and encompassing concept, tangible, and capable of being used to derive a pecuniary advantage
What is included in loss?
Loss involves financial detriment to the victim and is 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 diminished 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 but
- Don’t need to prove there was intent to cause loss
There must be loss to any other person but there need not be any 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 persons 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
Propensity (R v Sharma)
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
Define title
A right or claim to the ownership of property
A legal right to the property
Another term for title is ‘property in’
What is a voidable title?
A title obtained by deception, fraud, duress or misrepresentation. This means the title can be voided by the seller
The defrauder (seller) has voidable title and the buyer acquires the good title of the goods if bought in good faith and without notice of the sellers defect of title (s151)
Genuine sale
B buys car from A and pays cash for it
B gains possession of the car and title to it
A intends to pass his title to B
Unlawful taking/ theft
B steals car from A
B gains possession but not title, as A DID NOT INTEND to pass the title on
(a thief never gains title to the goods they steal)
Civil action
A agrees to sell car to B
A passes on good title to B (confirmed by documents lodge by motor vehicle registry)
B to pay A $500 in four instalments, but only one instalment has been paid
To void B’s title and reclaim ownership, A can bring a claim in the small claims tribunal
Obtained by deception
B views A’s car that is for sale
B is a prolific fraudster and has no intention to pay for the car
B convinces A he is a genuine and honest buyer and they shake hands agreeing B can take the car home and pay A the following day (A is induced to part with the car willingly)
B gives false details and avoids further contact with A
B obtains possession and title of the car because A INTENDED to pass over title
However, A’s CONSENT has been obtained by deception so B’s title is regarded as voidable
A must notify Police as well as take civil steps to void the title
What is the difference between theft and obtaining by deception?
Ownership and possession - The offender has gained property by deception because the owner has freely given it to the offender (however title is voidable)
Possession - if offender has gained property by theft and without the owners knowledge or consent (no ownership or title)
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 acquires a good title to the goods, provided he buys them in good faith and without notice of the sellers defect of title (s151)
What is the exception to the rule “you cannot get a better title than the seller” s246(4)
Title, obtained by a false pretence is still a ‘legal title’
If the original purchaser sells goods to an innocent buyer, then title has been made legal
A person cannot be convicted of ‘receiving’ from a fraudulent offender who has voidable title to goods he obtained by means of deception, unless they received it in bad faith or knew of the defect in title
When does title change hands with a hire purchase?
When A pays the full amount, then they get title
If A pays a deposit, then only possession is obtained
If A sells to B and B has guilty knowledge that A has not yet paid the full amount then B can be guilty of the offence of receiving as B has no title
A commits theft by conversion
What are the two core elements for the offence ‘Theft by person in special relationship’ (s220)?
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
The defendant intentionally departed from the relevant obligation
What are four circumstances of ‘Theft by person in special relationship’ (s220)?
The defendant intentionally:
- Failed to report to any other person for property AND the proceeds of property received by the defendant
- Dealt with property AND the proceeds of the property received by the defendant otherwise than in accordance with the requirements of some other person
The mere fact of intentionally failing to perform one’s only if actions is sufficient for liability. No need to prove they acted dishonestly or without claim of right
What are the two mental elements of ‘Theft by person in special relationship’ (s220)?
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
- have intentionally departed from their obligations (this is sufficient for liability, there is no requirement that the accused is shown to have acted dishonestly or without claim of right)
Forgery 256(1)
Not exceeding 10 years
Makes a false document with intent of using it to obtain:
- any property, privilege, service, pecuniary advantage, benefit, or valuable consideration
Forgery 256(2)
Not exceeding 3 years
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
(a false document must lie about itself or intend to convey a lie)
When is forgery complete?
Forgery is complete when the document is made with intent s256(1) or with knowledge and intent s256(2)
Forgery is complete even though the document may be incomplete but was made as to indicate that it was intended to be genuine
Define false document
The whole or any material part claiming to be made, or altered or reproduced, by any person or on behalf of any person who did not authorise it’s making, or on behalf of a fictitious person
There is no requirement that the defendant use the document, as long as the intention to do so is present and the defendant knows that the document is false
What is an example of a false document?
A painted copy of a Goldie painting trying to pass off as the original
Define alteration
A document is altered if it is changed in some manner
Define destruction
To end the existence of
Define reproduction
Producing a copy or representation of, or made in imitation
To prove deception, the prosecution must:
- prove that there was an intent to deceive
- there was a representation by the defendant
- the representation was false and the defendant either:
- knew it to be false
OR - was reckless whether it was false
Define authorisation
Conferred on a person by or under an enactment or a rule of law, or by an order of a court or judicial process
Define benefit
Includes any advantage and is not limited to financial or pecuniary advantage
Loss (R v Billingsley)
The person who suffers loss does not have to be aware of the loss at the time of the offence
What are examples of making material alterations to genuine documents?
Additions
Insertions
Deletions
Obliterations
Erasures
Removal of material or otherwise
An alteration increases the value or negotiability of a document
A false document can be made by making material alterations to a genuine document
If you photocopy a false document is this a forgery?
No because the document does not ‘tell a lie about itself’
When is forgery complete?
As soon as the document is made with knowledge and intent (you do not need to intend that a person will be affected by the forged document)
To go on to use the document will be a separate offence
What is the specified intent needed for forgery?
Intent to deceive is not an element of forgery
Prosecution must prove that at the time of the alleged act the defendant knew the document was false and had intended:
- to use the false document to obtain
OR
- that the false document be use or acted on as genuine
It is not enough that the maker knows the document is false, they also must have the intent to deceive by means of that which is false
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
Using forged documents s257
Not exceeding 10 years
Knowing a document to be forged:
- uses the document to obtain any property, privilege, service, pecuniary advantage, benefit, or valuable consideration
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
To prove the document is a forgery, you must prove:
- the document was false
- the user knew that the document had been made with the knowledge and intent required under s256
What are the three requirements for concealing something?
In Police v Boyd the word conceal included:
- the actual hiding of a document
- the denial of its existence
- the withholding of it in the face of a positive duty to produce it
Altering, concealing, destroying or reproducing documents with intent to deceive (s258)
Not exceeding 10 years
- with intent to obtain by deception any property, privilege, service, pecuniary advantage, benefit or valuable consideration
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: An intention to deceive is required, not an intent to obtain by deception (the document must be a false document for a forgery charge)
- In altering a doc: you must prove that the offender intended to obtain by deception (any document can be altered or reproduced for this charge)
Using altered or reproduced document with intent to deceive (s259)
Not exceeding 10 years
- 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 s259, 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 for ‘Using altered or reproduced document with intent to deceive’ (s259)?
- The defendant must know the relevant matters relating 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
- The intention to acquire or retain the property or to cause loss by deception
All that is required is an intention to deceive another person by a lie or a deliberate failure to disclose the truth
What do you need to prove a forgery charge under s256(1)?
The suspect:
- made a false document
- with intent to use it to obtain property etc
What do you need to prove a forgery charge under s256(2)?
The suspect:
- 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
How do you avoid a title?
- Communication to B (bringing it to B’s attention by writing a letter, text, phone call)
- Advise the police that the property was obtained by fraud
Define access in relation to a computer system?
Means instruct, communicate with, store data in, receive data from, or make use of any of the resources of the computer system
It covers all interactions with a computer system such as:
- using a computer at work
- viewing a website
- using a virus
Access requires that the person instructing or communicating with the computer system has some form of connection with the computer system through which instructions of communications may pass
A person is not required to be physically present to access a computer system, they can gain access to it via software that remotely infects computers
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 ‘Accessing computer system for dishonest purpose’ s249(1) and s249(2)
The distinction is reflected by the words ‘thereby’ and ‘obtains’
249(1) - A person accesses the computer system and obtains the offending material, or causes loss
249(2): A person accesses the computer system with intent, regardless of the result
(to prove s249(2) charge the offender intended to obtain PSPAVCPB or cause loss to any other person)
What is needed to prove a charge of ‘Accessing a computer system for dishonest purpose’ s249(2)?
The offender:
- obtained any property, privilege, service, pecuniary advantage, benefit, or valuable consideration
OR
- causes loss to any other person
What is the difference s250(1) and s250(2) ‘Damaging or interfering with a computer system’?
s250(1): criminalises the destruction, damaging or altering of a computer system that the defendant knows or ought to know would endanger life
s250(2): makes it an offence to damage any computer system and the defendant acted without authority with the knowledge they are not authorised or reckless as to whether they are authorised
s250(2)(b): the defendant has arranged matters that the victim, or the acts of third parties, will cause damage to the victims computer system
s252 Accessing computer system without authorisation
Intentionally gained access,
directly or indirectly,
to a computer system where access was not authorised,
Knowing that they are not authorised to access it, or being reckless as to whether or not they are authorised to access it
- the offence does not apply to a person who has authorisation but accesses the computer for a purpose other than the one for which they are given access
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 receivers
- NZ customs
- Financial markets authority
What are the steps in investigating deception regarding credit card and cheque offences
- Interview the informant
- Contact the account manager at the bank
- Find out information when the account has been opened with fictitious details
- Obtain suspects handwriting on bank documents
- Interview the account holder and obtain a statement (in order to prosecute you must establish an intent to defraud)
- Contact other police stations and fraud squads that may hold related complaints and information
- Find out if there is CCTV images of the offender
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
For cheque and credit card fraud, what must you not do with documents needing to be fingerprinted?
- punch, fold or crease them
- use staples, pins or cello tape
- make impressions on them
You should place them on file in a clear plastic bag
When must you notify the Serious Fraud Office?
All fraud complaints:
- with an actual or potential loss in excess of $2,000,000
- where the facts, law or evidence is of great complexity
- of great interest or concern (fraud involving a public figure)
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 book was reported missing
