Deception

Question 1

Section and elements - taking a document

Answer 1

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

Question 2

Section and elements - using a document

Answer 2

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

Question 3

Section and elements - obtaining by deception or causing loss (debt an credit)

Answer 3

S240(1)(b) Crimes Act 1961

-By any deception
-Without claim of right
-In incurring any debt OR liability
-Obtains credit

Question 3

Section and elements - obtaining by deception or causing loss (generic)

Answer 3

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

Question 3

Section and elements - obtaining by deception or causing loss (document)

Answer 3

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

Question 4

Define obtain

Answer 4

to obtain or retain for himself or herself or any other person

Question 4

Section and elements -obtaining by deception or causing loss (causing loss)

Answer 4

S240(1)(d) Crimes Act 1961

-By any deception
-Without claim of right
-Causes loss to any other person

Question 5

Define property

Answer 5

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

Question 6

Define service

Answer 6

Service is limited to financial or economic value and excludes privileges or benefits

Question 7

Case law - Pecuniary advantage

Answer 7

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

Question 8

Define valuable consideration

Answer 8

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

Question 9

Define dishonestly

Answer 9

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

Question 10

Case law - Dishonestly

Answer 10

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.

Question 11

Define without claim of right

Answer 11

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

Question 12

Define taking/takes

Answer 12

For tangible property, theft is committed by a taking when the offender moves the property or causes it to be moved

Question 13

Case law - R v Misic

Answer 13

Essentially a document is a thing which provides evidence or information or serves as a record

Question 14

Define document

Answer 14

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

Question 15

Case law - use

Answer 15

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.

Question 16

Define attempts

Answer 16

While having an intent to commit an offence, does or omits an act for the purpose of accomplishing his object

Question 17

Define deception

Answer 17

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

Question 18

Notes around false representation

Answer 18

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.

Question 19

Case law - intent to deceive

Answer 19

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

Question 20

Case law - Cameron v R

Answer 20

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

Question 21

Case law - representation

Answer 21

R v Morley

Representations must relate to a statement of existing fact, rather than a statement of future intention

Question 22

3 examples of representation

Answer 22

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

Question 23

Notes around silence

Answer 23

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

Question 24

Prosecution must prove that the defendant knew that the representation was false or reckless as to its falsity. How can knowledge be established ?

Answer 24

-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

Question 25

Define material particular

Answer 25

A matter will be 'material particular' if it is something important or something that matters

Question 26

Define device, trick and stratagem

Answer 26

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

Question 27

Distinction between theft and obtaining by deception

Answer 27

Theft is property obtained without the owner's permission and title is not passed on

Question 28

Case law - R v Cox

Answer 28

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.

Question 29

Define lien

Answer 29

a lien is a right over another's property to protect a debt charged on that property

Question 30

Define control

Answer 30

to exercise authoritative or dominating influence or command over it.

Question 31

Define pecuniary advantage

Answer 31

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

Question 32

Define debt

Answer 32

money owing from one person to another *the debt or liability must be legally enforceable

Question 33

Define liability

Answer 33

legally enforceable financial obligation to pay, such as the cost of a meal *the debt or liability must be legally enforceable

Question 34

Define credit

Answer 34

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

Question 35

Case law - Fisher v Raven

Answer 35

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

Question 36

Case law - R v McKay

Answer 36

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

Question 37

When can payment be withheld

Answer 37

Where there is genuine dissatisfaction with the service

Question 38

Define induces

Answer 38

To persuade, bring about or give rise to

Question 39

Case law - R v Laverty

Answer 39

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

Question 40

Define loss

Answer 40

R v Morley loss is assessed by the extent to which the complainant's position before the deception had been diminished or impaired

Question 41

Define 'to any other person'

Answer 41

include the Crown and any public body or local authority, and any board, society or company and other body of persons

Question 42

Penalty for deception offences (loss amounts)

Answer 42

$1000 and over - 7 years Between $500 and $1000 - 1 year under $500 - 3 months

Question 43

Propensity rule

Answer 43

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

Question 44

Notes on admissibility and relevance on propensity evidence

Answer 44

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

Question 45

Define title

Answer 45

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

Question 46

Explain voidable title

Answer 46

A titled obtained by deception, fraud, duress or misrepresentation. Title can be voided by seller.

Question 47

Title transfers

Answer 47

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

Question 48

Section and elements - Theft by person in special relationship

Answer 48

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

Question 49

Section and elements - Forgery

Answer 49

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

Question 50

When is forgery complete

Answer 50

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

Question 51

Define false document

Answer 51

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.

Question 52

Notes on false document

Answer 52

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

Question 53

Notes on photocopying false documents

Answer 53

A photocopy of a false document claims merely to be a copy and therefore does not tell a lie about itself

Question 54

Section and elements - using forged documents

Answer 54

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

Question 55

Section and elements - altering or reproducing document

Answer 55

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

Question 56

Explain concealing a document

Answer 56

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

Question 57

Section and elements - using altered or reproduced document with intent to deceive

Answer 57

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

Question 58

Define computer system

Answer 58

-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

Question 59

Define access (computer)

Answer 59

instruct, communicate with, store data in, receive data from or otherwise make use of any of the resources of the computer system

Question 59

Define authorisation (computer)

Answer 59

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

Question 60

Section and element - Accessing computer system for dishonest purpose (7 year imprisonment)

Answer 60

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

Question 61

Section and element - Accessing computer system for dishonest purpose (5 year imprisonment)

Answer 61

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

Question 62

Section and elements - damaging or interfering with a computer system

Answer 62

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

Question 63

Section and elements - accessing computer systems without authorisation

Answer 63

Section 252 Crimes Act 1961 intentionally or recklessly accesses without authorisation knowing that he or she is not authorised

Question 64

Section 43 - what does the judge need to consider

Answer 64

-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.

Question 65

What to find out through the account manager when investigating fraud

Answer 65

-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

Question 66

Four possible sources of enquires at the ministry of commerce when investigation company fraud

Answer 66

-Registrar of companies -Companies office -Official assignee -Insolvency services

Question 67

When can propensity evidence be called in cases of deception

Answer 67

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.

Question 68

Extension of credit

Answer 68

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

Question 69

Serious Fraud Office must be notifed of

Answer 69

-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)