Deception Flashcards
Section and elements - taking a document
S228(1)(a) Crimes Act 1961
-Dishonestly
-Without claim of right
-Takes OR obtains
-Any document
-With intent to obtain any property OR service OR pecuniary advantage OR valuable consideration
Section and elements - using a document
S228(1)(b) Crimes Act 1961
-Dishonestly
-Without claim of right
-Uses OR attempts to use
-Any document
-With intent to obtain any property OR service OR pecuniary advantage OR valuable consideration
Section and elements - obtaining by deception or causing loss (debt an credit)
S240(1)(b) Crimes Act 1961
-By any deception
-Without claim of right
-In incurring any debt OR liability
-Obtains credit
Section and elements - obtaining by deception or causing loss (generic)
S240 (1)(a) Crimes Act 1961
-By any deception
-Without claim of right
-Obtains ownership OR possession of OR control over
-Any Property OR privilege OR service OR pecuniary advantage OR benefit OR valuable consideration
-directly or indirectly
Section and elements - obtaining by deception or causing loss (document)
S240(1)(c) Crimes Act 1961
-By any deception
-Without claim of right
-Induces or causes any other person to deliver over OR execute OR make OR accept OR endorse OR destroy OR alter
-any document or thing capable of being used to derive a pecuniary advantage
Define obtain
to obtain or retain for himself or herself or any other person
Section and elements -obtaining by deception or causing loss (causing loss)
S240(1)(d) Crimes Act 1961
-By any deception
-Without claim of right
-Causes loss to any other person
Define property
includes real and personal property, any 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 to financial or economic value and excludes privileges or benefits
Case law - Pecuniary advantage
Hayes v R
A pecuniary advantage is anything that enhances the accused’s financial position. It is that enhancement which constitutes the element of advantage
Define valuable consideration
Anything capable of being valuable consideration, whether of a monetary kind or of any other kind; in short, money or money’s worth
eg.
-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
Without 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
Case law - Dishonestly
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 without claim of right
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
* 4 defenses around nature of belief*
-belief in p&p over property
-held at time
-held in relation to the offence
-need not be reasonable
Define taking/takes
For tangible property, theft is committed by a taking when the offender moves the property or causes it to be moved
Case law - R v Misic
Essentially a document is a thing which provides evidence or information or serves as a record
Define document
Summarised from S217 CA 61
Document means a document, or part of a document, in any form; and includes
-paper
-photograph
-disc, tape, wire, sound track, card
-any material by means of which information is supplied
Case law - 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.
Define attempts
While having an intent to commit an offence, does or omits an act for the purpose of accomplishing his object
Define deception
a false representation whether oral, documentary or by conduct where the person making the representation intends to deceive any other person and
-knows that it is false in a material particular OR
-is reckless as to whether it is false in a material particular OR
-an omission to disclose a material particular, with intent to deceive any person, in circumstances where there is a duty to disclose it OR
-a fraudulent device, trick, or stratagem used with intent to deceive any person
Notes around false representation
Defendant must know or believe that it is false. Absolute certainty is not required and wilful blindness as to falsity of the statement will suffice.
Case law - intent to deceive
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 the deception
Case law - Cameron v R
Recklessness
Recklessness is established if the defendant recognised that there was a real possibility that his or her actions would bring about the proscribed results and/or the proscribed circumstances existed and having regard to that risk those actions were unreasonable
Case law - representation
R v Morley
Representations must relate to a statement of existing fact, rather than a statement of future intention
3 examples of representation
ORAL - verbally claiming to own goods that are in fact subject to a hire purchase agreement
CONDUCT - representing oneself to be a collector for charity by appearing to be carrying an official collection bag
DOCUMENTARY - presenting a false certificate of qualifications
Notes around silence
Silence or non-disclosure will not be regarded as representation, but there are exceptions such as where an incorrect understanding is implied from a course of dealing and the defendant has failed to negate that incorrect understanding
Prosecution must prove that the defendant knew that the representation was false or reckless as to its falsity. How can knowledge be established ?
-an admission
-implications from the circumstances surrounding the event
-propensity evidence
The accused may also be liable if their conduct has amounted to wilful blindness
Define material particular
A matter will be ‘material particular’ if it is something important or something that matters
Define device, trick and stratagem
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
Distinction between theft and obtaining by deception
Theft is property obtained without the owner’s permission and title is not passed on
Case law - R v Cox
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.
Define lien
a lien is a right over another’s property to protect a debt charged on that property
Define control
to exercise authoritative or dominating influence or command over it.
Define pecuniary advantage
economic or monetary advantage
Examples
-cash from stolen goods
-clothing or cash obtained by a credit or EFTPOS card
-a discount (using a false ID)
-avoiding or deferring payment of a debt
Define debt
money owing from one person to another
*the debt or liability must be legally enforceable
Define liability
legally enforceable financial obligation to pay, such as the cost of a meal
*the debt or liability must be legally enforceable
Define credit
Refers to the obligation on the debtor to pay or repay, and the time given for them to do so by the creditor
*gaining credit is not of itself unlawful unless it is accompanied by an intent to deceive and credit obtained must be in respect of a monetary obligation
Case law - Fisher v Raven
Obligation to pay -credit
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
Case law - R v McKay
Intent to deceive - credit
On appeal it was held that the credit had been obtained on booking in but at that time the accused did not possess and intent to deceive
When can payment be withheld
Where there is genuine dissatisfaction with the service
Define induces
To persuade, bring about or give rise to
Case law - R v Laverty
Induce
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 loss
R v Morley
loss is assessed by the extent to which the complainant’s position before the deception had been diminished or impaired
Define ‘to any other person’
include the Crown and any public body or local authority, and any board, society or company and other body of persons
Penalty for deception offences (loss amounts)
$1000 and over - 7 years
Between $500 and $1000 - 1 year
under $500 - 3 months
Propensity rule
Section 40 Evidence Act 2006
(1) 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 does not relate to offence the person is being tried for
(2) a party may offer propensity evidence in a civil or criminal proceeding about any person
(3) may be offered only in accordance with S41 42 43. section 44 for sexual case
Notes on admissibility and relevance on propensity evidence
Court will decide on whether the evidence is propensity evidence or simply regarded as relevant evidence. It is more likely to be deployed in cases involving specific offences with a discernable methodology or pattern
Define title
A right or claim to the ownership of property, simply means a legal right to the property
*a buyer acquires no better title to the goods than the seller had unless the owner of the goods is by the owner’s conduct precluded from denying the seller’s authority to sell
Explain voidable title
A titled obtained by deception, fraud, duress or misrepresentation. Title can be voided by seller.
Title transfers
Sold > void > on sold = return to owner
Sold > on sold > void = remain with 2nd buyer
Sold > void > received = return to owner, receiver charged
Sold > received > void = remains with receiver
Section and elements - Theft by person in special relationship
S220 Crimes Act 1961
(1)Any person who has received or is in possession of, or has control over, any property on terms or in circumstances that the person knows require the person -
(a)to account to any other person for the property, or for any proceeds arising from the property OR
(b)to deal with the property, or any proceeds arising from the property, in accordance with the requirements of any other person.
Everyone under subsection 1 commits theft when -
(2) intentionally fails to account to the other person as so required or intentionally deals with the property or any proceeds of the property, otherwise than in accordance with those requirements
(3) person was required to deliver over the identical property received or in the person’s possession or control
Section and elements - Forgery
S256 Crimes Act 1961
(1) makes a false document with the intention of using it to obtain any property, privilege, service, pecuniary advantage, benefit or valuable consideration
(2) makes a false document knowing it to be false with the intent that in any way be used or acted upon whether in NZ or elsewhere as genuine
When is forgery complete
As soon as the document is made with the necessary intent. Forgery is complete even though the false document may be incomplete or may not purport to be such a document as would be binding or sufficient in law
Define false document
A document of which the whole or any material part purports to be made by any person who did not make it, or by a fictitious person or on behalf of any person who did not authorise its making. Including any altering, reproduction for any other document.
Notes on false document
The document itself must lie about itself or intend to convey a lie in cases where it has been written by someone intending to pass it off as having been written by someone else
Notes on photocopying false documents
A photocopy of a false document claims merely to be a copy and therefore does not tell a lie about itself
Section and elements - using forged documents
S257(1) Crimes Act 1961
Knowing a document to be forged
(a)uses the document to obtain any property, privilege, service, pecuniary advantage, benefit or valuable consideration
(b)uses, deals with, or acts upon the document as if it were genuine
(c)causes any other person to use, deal with, or act upon it as if it were genuine
Section and elements - altering or reproducing document
S258(1) Crimes Act 1961
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)makes a document or causes a document to be made that is in whole or in part a reproduction of any other document
Explain concealing a document
The actual hiding of a document, the denial of its existence and the withholding of it in the face of a positive duty to produce it
Section and elements - using altered or reproduced document with intent to deceive
S259(1) Crimes Act 1961
knowing any document to have been made or altered in the manner and 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)uses, or deals with, or acts upon the document
(b)causes any person to use or deal with or act upon the document
Define computer system
-a computer
-2 or more interconnection computer
-any communication links between computers or to remote terminals or another device
-2 or more interconnected computers combined with any communication links between computers or to remote terminals or any other deviice
Define access (computer)
instruct, communicate with, store data in, receive data from or otherwise make use of any of the resources of the computer system
Define authorisation (computer)
includes an authorisation conferred on a person by or under an enactment or a rule of law or by an order of the court or judicial process
Section and element - Accessing computer system for dishonest purpose (7 year imprisonment)
S249(1) Crimes Act 1961
Directly or indirectly accesses any computer system and thereby dishonestly or by deception and without claim of right
(a)obtains any property, privilege, service, pecuniary advantage, benefit or valuable consideration
(b)causes loss to any other person
Section and element - Accessing computer system for dishonest purpose (5 year imprisonment)
S249(2) Crimes Act 1961
Directly or indirectly accesses any computer system with intent, dishonestly or by deception and without claim of right
(a)obtains any property, privilege, service, pecuniary advantage, benefit or valuable consideration
(b)causes loss to any other person
Section and elements - damaging or interfering with a computer system
Section 250 Crimes Act 1961
(1)With intent, or recklessly destroys, damages or alters any computer system causing danger to life
(2)with intent or recklessly, without authority interferes or fail or deny service to any authorised users
Section and elements - accessing computer systems without authorisation
Section 252 Crimes Act 1961
intentionally or recklessly accesses without authorisation knowing that he or she is not authorised
Section 43 - what does the judge need to consider
-Frequency
-Connection in time between acts
-Similarity
-Number of people making similar allegations
-Whether the allegations above may be the result of collusion or suggestability
-the extent of which the act, events or circumstances the defendant is being tried for are unusual.
What to find out through the account manager when investigating fraud
-Account holder’s particulars
-Date account was opened
-Account history and how it has been operated
-When the credit card was reported missing
-How and by whom a loss was reported
Four possible sources of enquires at the ministry of commerce when investigation company fraud
-Registrar of companies
-Companies office
-Official assignee
-Insolvency services
When can propensity evidence be called in cases of deception
Propensity evidence, whether on previous or later occasions to the offence charged, is admissible in cases of deception where there is a sufficiently strong connection between the offences.
Extension of credit
Credit must be obtained and given directly by the defendant personally.
However under s217, it is sufficient that the accused obtained the extension of credit to another person
Serious Fraud Office must be notifed of
-fraud complaints with actual or potential loss over $2mil
-fraud complaints where law or evidence is of great complexity
-fraud complaint of great interest (such as public figure)
