Deception Flashcards
Elements of Dishonestly TAKING a document
S228(1)(a)
- Dishonestly
- Without Claim of Right
- Takes OR Obtains
- Any Document
- With intent to obtain any:
-Property
-Service
-Pecuniary Advantage
-Valuable Consideration
Elements of Dishonestly USING a document
S228(1)(b)
- Dishonestly
- Without Claim of Right
- Uses OR Attempts to Use
- Any Document
- With intent to obtain any:
-Property
-Service
-Pecuniary Advantage
-Valuable Consideration
Elements of Obtaining by Deception (standard)
S240(1)(a)
- By Any Deception
- Without Claim of Right
- Obtains:
-Ownership
-Possession
-Control over - Any:
-Property
-Privilige
-Service
-Pecuniary Advantage
-Benefit
-Valuable consideration - Directly or Indirectly
Elements of Obtaining by Deception (credit)
S240(1)(b)
- By any Deception
- Without Claim of Right
- In incurring any Debt OR Liability
- Obtains Credit
Causing Loss by Deception
S240(1)(d)
- By any Deception
- Without Claim of Right
- Causes Lose to any other person
Definition of Obtain
Obtain or retain for himself of any other person - S217
Definition of property
Real and Personal property - S2
Definition of Service
Service is limited to financial or economic value, and excludes privileges or benefits
R v Cara
Definition of ‘Pecuniary Advantage’
Anything that enahnces the accused’s financial position - Hayes v R
Definition of Valuable Consideration
Anything capable of being valuable consideration, whether or not of a monetary kind - Hayes v R
Hayes v R (document use)
An unsuccessful use of a document is as much use as a successful one.
R v Misic
A document is a thing which provides evidence or information or serves as a record.
Definition of deception
S240(2)
(a) A false representation, with the intent to deceive, knowing or being reckless to whether it is false in a material particular
(b) An omission to disclose something, with intent to deceive, when there is a duty to disclose it.
(c) a fraudulent device, trick, stratagem used with intent to deceive
R V Morley (deception)
An intention to deceive requires that the deception is practised to deceive the affected party.
Define ‘debt’ and define ‘liability’
Debt means money owing from one person to another
Liability means a legally enforceable financial obligation to pay.
Define ‘title’
A right or claim to the ownership of property
Definition of Dishonestly
Done or omitted without a belief that there was expressed or implied consent.
Definition of Without Claim of Right
Without a belief at the time to a proprietary or possessory right to property
Cameron v R
Recklessness is established if the defendant recognised that there was a real possibility that:
1. His or her actions would bring about the proscribed result
2. The proscribe circumstances existed
And having regard to that risk, those actions were unreasonable.
R v Morley (representations)
Representations must relate to a statement of existing fact, rather than a statement of future intention
R v Morley (intention)
The intention to deceive requires that the deception is practised in order to deceive the affected party.
R v Cox (possession)
Possession involves two elements. Physical is custody and control. Mental is knowledge and intention.
Fisher v Raven
Credit is the obligation on the debtor to pay and the time given to them by the creditor.
R v McKay
You must prove an intent to deceive at the time of obtaining credit.
Elements of Inducing or causing to Deliver over etc. by Deception
S240(1)(c)
- By Any Deception
- Without claim of right
- Induced or cause any person to
-Endorse,
-Alter
-Deliver over,
-Execute,
-Make,
-Accept,
-Destroy, - Any document or thing capable of being used to derive a pecuniary advantage
Definition of induced
Persuade, bring about, give rise to
R v LAVERTY
It must be proven that the person parting with the property was induced to do so by the false representation
Obtaining by deception penalties?
$1,000 + is 7 years
$500 - $1,000 is 1 year
Under $500 is 3 months
Act describing title?
Contract and Commercial Law Act 2017
Definition of title?
A legal right to property. A person cannot give better title to property than they own.
How complainant can void title?
-Communicate with offender
-Take all other possible steps to bring it to offender’s notice, eg by writing a letter
-Advise the police that the vehicle was obtained by deception
Which of these methods of acquiring property transfer title?
- Buying
- Theft
- Obtaining by deception
1 & 3.
A thief never gets title, but a deceiver does.
What is the difference between theft by using and obtaining by deception?
Deception is when the victim gives ownership of the property to the offender.
What is a material alteration in respect to forgery?
ROADIE
Removals
Obliterations
Additions
Deletions
Insertions
Erasures
What is a false document?
A document that must lie about itself.
Elements of accessing a computer system for dishonest purpose
S249(1)
- Directly or Indirectly
- Accessed any computer system
- Dishonestly and without claim of right obtained any Property, Privilige, Service, Pecuniaruy Advantage, Benefit, Valuable Consideration OR caused loss to any other person.
Definition of access
Instruct, communicate with, store data in, receive data from, or otherwise make use of any of the resources of the computer system.
Elements of accessing a computer system for dishonest purpose (intent)
S249(2)
- Directly or Indirectly
- Accessed any computer system with intent to
- Dishonestly and without claim of right obtain any P, S, PA, B, VC
OR
Cause loss to another person
The difference between this and 249(1) is that this covers attempts.
Elements of damaging or interfering with computer system (likely to endanger life)
S250(1)
- Intentionally or recklessly
- Destroys, damages or alters
- Any computer system
- Knowing or ought to know that dnager to life is likely to result
What is an alteration with regards to forgery?
A material alteration (ROADIE) that increases the value or negotiability of a document
What is required to be proved in regards to accessing a computer system?
That there was some form of connection.
Hayes v R (Dishonesty)
The question is whether the belief was held, not whether it was reasonable.
When is propensity evidence admissible for deception cases?
When there is sufficiently strong connection between the offences.
How would you investigate company fraud (dishonesty offences by employee)
- Obtain documents from the complainant
- Trace the suspect’s actions
- Establish where the money went
- Execute production orders / Search Warrants
- Interview suspect
How would you investigate company fraud (dishonesty offences against the public by a company)
- Confirm company officer details
- Interview victims
- Identify the details of the suspect’s bank account
- execute production orders or search warrants
- Interview suspects
Elements of forgery?
(For gain)
S256(1) - Forgery
- Make
- A false document
- With intent to use it to obtain any P,P,S,PA,B,VC
When is forgery complete?
As soon as the document is made with intent
What makes a document false?
It must tell a lie about itself
What external agencies can assist in company fraud investigations?
- Police Accountants & Legal Officers
- MBIE (registry of companies)
- Commerce Commission (Fair Trading Act)
TITLE
A is deceived by B.
B sells to genuine buyer C
A voids title
Who is liable and who gets the car?
B is liable
C is not liable
C keeps car
TITLE
A is deceived by B.
A voids title
B sells to genuine buyer C
Who is liable and who gets the car?
B is liable
C is not liable
A keeps car
TITLE
A is deceived by B.
B sells to receiver C
A voids title
Who is liable and who gets the car?
B is liable
C is not liable
A keeps car
TITLE
A is deceived by B.
A voids title
B sells to receiver C
Who is liable and who gets the car?
B is liable
C is liable
A keeps car
