Deception Flashcards
What offence is under section 228(1)(a)
Dishonestly taking or using a document
Everyone who with intent to obtain any property, service, pecuniary advantage, or valuable consideration dishonestly and without claim of right, takes or obtains any document
What offence is under section 228(1)(b)
Everyone who with intent to obtain any property, service, pecuniary advantage or valuable consideration dishonestly and without claim of right, uses or attempts to use any document.
Define obtain
Section 217 CA 1961
Obtain, in relation to any person, means obtain or retain for himself or herself or for any other person
Define property
Section 2 Crimes Act 1961
Property includes any real and personal property, any estate or interest in any real or personal property, money, electricity, and any debt and anything in action and any other right or interest
Define service
Service is limited financial or economic value and excludes privileges or benefits
Define pecuniary advantage
Hayes v R
A pecuniary advantage is “anything that enhances the accusers financial position. It is that enhancement which constitutes the element of advantage.
Define valuable consideration
Money or moneys worth.
Define dishonestly
Dishonestly in relation to any act or omission, means done or omitted without a belief that there was expressed or implied consent to, or authority for, the act or omission from a person entitled to give such consent or authority.
Define without claim of right
Section 2 CA 1961
Claim of right in relation to any act, means a belief at the time of the act in a proprietary or possessory right in property in relation to which the offence is alleged to have been committed, although that belief may be based on ignorance or mistake of fact or of any matter of law other than the enactment against which the offence is alleged to have been committed
Define Document
R v misic
Essentially a document is a thing which provides evidence of information or serves as a record
Define use or attempts to use
Hayes v r
An unsuccessful use of a document is as much use as a successful one.an unsuccessful use must not be equated conceptually with an attempted one. The concept of attempt relates to use not to the ultimate obtaining of a pecuniary advantage, which is not a necessary element of the offence. Because the use does not have to be a successful it may be difficult to draw a clear line between use and attempted use.
Definition of attempts
- Everyone who, having an intent to commit an offence, does or omits an act for the purpose of accomplishing his objective, is guilty of an attempt to commit the offence intended, whether in the circumstances it was possible to commit the offence or not.
- The question whether an act done or omitted with intent to commit an offence is or is not only preparation for the commission of that offence, and too remote to constitute an attempt to commit it, is a question of law.
- An act done or omitted with intent to commit an offence may constitute an attempt if it is immediately or proximately connected with the intended offence, whether or not there was an act unequivocally showing the intent to commit that offence.
Obtaining by deception or loss by deception
Section 240 (1), CA 1961
Everyone is who by any deception and without claim of right,
(a) obtains ownership or possession of, or control over, any property or any privilege, service, pecuniary advantage, benefit or valuable consideration directly or indirectly; or
(b) in incurring any debt or liability obtains credit; or
(c) 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; or
(d) causes loss to any other person.
Obtains by deception or causing loss by deception Sec 240(1A)
Every person is liable to imprisonment for a term not exceeding 3 years who without reasonable excuse, sells, transfers, or otherwise makes available any document or thing capable of being used to derive a pecuniary advantage knowing that, by deception and without claim of right, the document or thing was, or was cause to be, delivered, executed, made, accepted, endorsed, or altered.
Definition of Deception per section 240 (2) CA 1961
(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 a false 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.
R v Morley intent
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.
Representation r v Morley
Representation 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 continuing affect. For example, entering a restaurant and ordering dinner represents that the diner will follow the normal practice and pay for the meal. If during the course of dinner the diner decides to avoid that payment, the continuing representation will become false, and the obtaining of food will come within 240
Knowledge
Means knowing it correctly believing, may believe something wrongly but cannot know something that is false.
Particular
An important, essential or relevant detail or item.
R v Mallet - a matter will be a material particular if it is something important or something that matters.
Omission
Not acting, inaction it can be a conscious decision not to do something. Or not giving thought to the matter
Device
A plan, scheme or trick
Trick
An action or scheme undertaken to fool, outwit or deceive
Stratagem
A cunning plan or scheme especially for deceiving an enemy or trickery
Obtaining property by deception
Section 240(1)(a) CA 1961
Everyone who by any deception and without claim of right
(a) obtains ownership or possession of, or control over, any property, or any privilege, service, pecuniary advantage, benefit, or valuable consideration directly or indirectly
Privilege or benefit
are not limited to of a pecuniary nature. Both of these words mean a special right or advantage
eg. Using another persons gym membership
Access to medical services
Possession
Possession involves two elements. The first. The physical element is actual or potential, physical custody or control. The second. The mental element is a combination of knowledge and intention, knowledge in the sense of an awareness by the accused that the substance is in his possession and an intention to exercise possession
Control
To control, something means to exercise, authoritative, or dominating influence or command over it.
Pecuniary advantage
Economic or monetary advantage
Cash from stolen goods
Clothing or cash obtained by a credit or eftpos card
Obtaining by credit
240(1)(b) CA 1961
Everyone who by any deception and without claim of right
(b) in incurring any debt or liability, obtains credit
Debt or liability
Debt - money owing from one person to another
Liability- means legally enforceable financial obligation to pay such as the cost of a meal
Must prove under section 2401(b)
Identity of the suspect and that they
By deception and without claim of right
In incurring any debt or liability
Obtained credit
Cameron v R
Recklessness is established if
(a) the defendant recognised that there was a real possibility that:
- his or her actions would bring about the proscribed result and/or
- the proscribed circumstances existed; and
(b) having regard to that risk those actions were unreasonable.
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.
In relation to section 240 deception you must prove
- that there was an intent to deceive
- that there was a representation by the defendant
- that the representation was false, and that the defendant either:
- knew it to be false in a material particular or
- was reckless whether it was false in a material particular
R v MCKAY
On appeal it was held that the credit had been obtained on booking in but at that time the accused did not possess an intent to deceive
Obtaining by deception altering documents
Section 2401(c) CA 1961
(1) Everyone by any deception and without claim of right
(c) 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.
Define induces
To persuade, bring about or give rise to
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
Obtaining by deception causing loss
Sec 240 (1)(d)
(1) Everyone who by any deception and without claim of Right
(d) causes loss to any other person
Loss defined
Involves financial detriment to the victim and must involve a direct loss.
Propensity evidence
- In this section and sections 41 to 43, propensity evidence
(a) means evidence that tends to show a person’s propensity to act in a particular way or to have a particular state of mind, being evidence of acts, omissions, events or circumstances with which a person is alleged to have been involved but
(b) does not include evidence of an act or omission that is
(I) 1 of the elements of the offence for which the person is being tried; or
(ii) the cause of action in the proceeding in question
(2) a party may offer propensity evidence in a civil or criminal proceeding about any person
(3) how ever propensity evidence about -
(a) a defendant in a criminal proceeding may be offered only in accordance with section 41 or 42 or 43, which ever section is appllicable and
(b) a complainant in a sexual case in relation to the complainants sexual experience may be offered only in accordance with section 44
(4) evidence that is solely or mainly relevant to veracity is governed by the veracity rules set out in section 37 and accordingly, this section does not apply to evidence of that kind
Define title
A right or claim to the ownership of property a legal right to the property
Section 151 contract and commercial law Act 2017 sale under voidable title
(1) this section applies if
(a) a seller of goods has a voidable title to the goods; but
(b) the sellers title has not become void at the time of the sale
(2) the buyer acquires a good title to the goods if the buyer buys the goods in good faith and without notice of the sellers defect of title
Forgery
Sec 256, CA 1961
(1) everyone who makes a false document with the intention t of using it to obtain any property, privilege, service, pecuniary advantage, benefit, or valuable consideration
(2) everyone who makes a false document, knowing it to be false, with the intent that it in any way be used or acted upon, whether in New Zealand or elsewhere, as genuine
(
Using a forged document
Sec 257 CA 1961
(1) everyone who knowing a document to be forged
(a) uses the document to obtain any property, privilege, service, pecuniary advantage, benefit or valuable consideration or
((b) uses, deals with or acts upon the document as if it were genuine
(C) cause any other person to use, deal with or act upon it as if it were genuine
Altering or reproducing documents
Sec 258 CA 1961
(1) everyone who with intent to obtain by deception any property privilege service pecuniary advantage benefit or valuable consideration or to cause loss to any other person
(a) alters conceals or destroys any document or causes any document to be altered concealed or destroyed
(b) the document causes a document to be made that is in hole or in part a reproduction of any other document
