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Tim Modules > Deception > Flashcards

Deception Flashcards

1
Q

Property

A

Section 2, CA 1961
Property includes real and personal property, and 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.

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2
Q

Obtain

A

Section 217, CA 1961
Obtain or retain for himself or herself or for any other person.

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3
Q

Hayes v R

A

A pecuniary advantage is “anything that enhances the accused’s financial position. It is that enhancement that constitutes the element of advantage.

An unsuccessful use of a document is a much use as a successful one.

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4
Q

Dishonestly

A

Section 217, CA 1961
In relation to an 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.

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5
Q

Claim of Right

A

A belief at the time of the act in a proprietary or possessory right in the 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.

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6
Q

R v Misic (document)
EIR

A

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

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7
Q

What is required to be proved
IRRKR

A

An intent to deceive
A representation by the Defendant
Representation was false;
Knew it to be false in a material particular OR
Reckless whether it was false in a material particular

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8
Q

R v Morley

A
  1. 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 the deception.
  2. Representation must relate to a statement of existing fact, rather than a statement of future intention.
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9
Q

Cameron v R

A

Recklessness is established if:
Real possibility
Proscribed result
Circumstances existed
Having regard to that risk those actions were unreasonable.

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10
Q

Continuing effect

A

In many cases a representation by words or conduct may have a continuing effect.

Eg. 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 payment, the continuing representation will become false, and the obtaining of food will come within s240.

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11
Q

Nature of belief required

A
  1. A belief in a proprietary or possessory right in property.
  2. A belief that the Defendant had proprietary or possessory right.
  3. belief must be held at the time of the conduct alleged to constitute the offence.
  4. Belief must be held by the Defendant.
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12
Q

Knowledge can be established by
PIA

A
  1. Admission
  2. Implication from circumstances surrounding the event.
  3. Propensity evidence.
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13
Q

Device, trick, or stratagem:

A

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.

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14
Q

Distinction between theft and obtaining by deception:

A
  1. Obtained without the owners permission.
  2. Title is not passed on.
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15
Q

Special interest

A

It is sufficient if the person from whom the goods were obtained had some special property or interest in the goods without having actual ownership of them.

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16
Q

Special interest lien:

A

The Defendant was the owner of a motor car being repaired by a garage. The garage proprietor placed a ‘lien’ over the vehicle until payment of the debt was made.

The effect of this was to permit him to retain possession of the car and gave him a ‘special property or interest in the vehicle.

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17
Q

Debt

A

Money owing from one person to another.

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18
Q

Liability

A

A legally enforceable financial obligation to pay, such as the cost of a meal.

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19
Q

Credit

A

Refers to the obligation on the debtor to pay or repay, and the time given for them to do so by the creditor.

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20
Q

Fisher v Raven

A

‘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.

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21
Q

Legally enforceable:

A

The obligation to pay must be legally enforceable against whomever the credit is obtained (usually the Defendant)

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22
Q

Continuing representations:

A

‘Adam’s in Criminal Law’ said that in many cases a representation, whether by words or conduct, may be of continuing effect. This, entry into a restaurant and ordering a meal would usually be a representation that one will follow the normal practice and pay for the meal at the appropriate time. If, during the course of the meal, a diner decides to avoid payment, the continuing representation of an intention to pay will become false and any subsequent result braiding of food will come within s240

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23
Q

Hire purchase

A

Where goods are obtained on hire purchase by a false representation, the offence committed is deception.

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24
Q

Proof of the inducement

A
  1. That the false representation was believed, and
  2. That it was the consequence of that belief that the victim parted with his or her money.
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25
Q

Prosecution may offer propensity evidence:
SCAN-FC

A

When assessing the probative value of propensity evidence, the Judge may consider, among other matters, the following:
1. Frequency
2. Connection in time between the acts.
3. Extent of similarity between the acts.
4. Number of persons making allegations.
5. Whether the allegations may be the result of collusion or suggestibility.
6. Extent of which the acts, omissions, events, or circumstances constitute the offence for which the Defendant is being tried are unusual.

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26
Q

Voidable title
DFDM

A

A title obtained by deception, fraud, duress or misrepresentation is called a ‘voidable title’. This means that the title can be voided by the seller.

Until the title is voided, the defrauded has voidable title, and can confer good title on anyone who acquires the goods from him or her in good faith and for value.

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27
Q

Example: Hire purchase

A

Where goods are purchased on hire purchase, title is not obtained until the full amount is paid (ie. title remains with the complainant/owner)

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28
Q

Two core elements of proof required:

A
  1. Received property on terms or in circumstances which, to the Defendants knowledge, affect what the Defendant may do with the property or its proceeds or require the Defendant to act in accordance with the requirements of another person, and
  2. That the Defendant intentionally departed from the relevant obligation.
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29
Q

Forgery
MWO

A

Section 256, CA 1961
Every one is liable to imprisonment for a term not exceeding 10 years who makes a false document with the intention of using it to obtain any property, privilege, service, pecuniary advantage, benefit, or valuable consideration.

30
Q

Using forged documents:
KUUC

A

Section 257, CA 1961
Every one is liable to imprisonment for a term not exceeding 10 years who, knowing a document to be forged, a
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: or
C. Causes any other person to use, deal with, or act upon it as if it were genuine.

31
Q

Altering, concealing, destroying, or reproducing documents with intent to deceive:
WAM

A

Section 258, CA 1961
Every one is liable to imprisonment for a term not exceeding 10 years 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, destroys any document, or causes any document to be altered, concealed, or destroyed: or
B. Makes a document or causes a document to be made that is, in whole or in part, a reproduction of any other document.

32
Q

Forgery vs altering etc reproducing a document

A

The differences between the offences rest in the varying definitions of ‘document’ and ‘intent’

With forgery, an intent to deceive only is required, not an intent to obtain by deception.

In the offence of altering, concealing, destroying, or reproducing a document, you must prove that the offender intended to obtain by deception.

An document can be altered or reproduced in the charge of altering, concealing, destroying, or reproducing a document. However, in a charge of forgery the document must be a ‘false document’ as defined in section 255 of the CA 1961.

33
Q

Define Access when it comes to computer offences?
CSI-RO

A

In relation to any computer system, means instruct, communicate with, store data in, receiver data from, or otherwise make use of any of the resources of the computer system.

Access is widely defined and covers almost all interactions with a computer system such as using computer at work and more remote forms of access such as viewing a website or 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 or communications may pass: Adam’s on Criminal Law.

34
Q

Computer system:

A
  1. A computer, or
  2. 2 or more interconnected computers; or
  3. Any communication links between computers or to remote terminals or another device; or
  4. 2 or more interconnected computers combined with any communication links between computers or to remote terminals or any other device:

Includes any part of the items festive in paragraph (a) and all related input, output, processing, storage, software, or communication facilities, and stored data.

35
Q

Interviewing: contact the accounts manager at the bank where the account is is domiciled are find out?
SWORD-FH

A
  1. The accounts holders full name, occupation, private and business addresses and telephone numbers.
  2. The date the account was opened.
  3. The account history and how it has been operated.
  4. The date the cheque book or credit card was reported missing.
  5. How and by whom a loss was reported.
  6. The serial numbers of any missing cheques.
  7. Details of any cheques dishonoured and returned.
  8. Whether the account holder is suspected of issuing valueless cheques.
36
Q

Company deception
Types of investigations:

A

Category A:
Large scale thefts and other dishonesty offences against employers by employees.

Category B:
Dishonesty offences committed against financial institutions by people outside the Institution obtaining money from it through deception.

Category C:
Commercial fraud committed against the public.

Category D:
Dishonesty offences committed by professional people in a position of trust.

37
Q

Deception

A

A false representation either by oral, documentary, conduct made with intent to deceive any known, or reckless if false in material particular OR an omission to disclose a particular where there is a duty to do so OR a fraudulent device, trick, or stratagem used with intent to deceive any person.

38
Q

Ownership

A

Goods come under control, don’t have to physically have them

39
Q

R v Cox (Possession)

A

Two elements, physical and mental. Custody and control, knowledge and intention.

40
Q

Control

A

Power of directing or commanding. Do not need to possess.

41
Q

Privilege

A

Special right or advantage

42
Q

Roberts car is in the local garage having been repaired. Robert could not afford to pay for the repair before getting the car back. Knowing that he does not have funds in his account to cover the cost of the repairs, he hands over a cheque to the repairer and received the car in return. He drives home:

A

Robert has obtained the vehicle by deception , as someone else has a special property or interest in it

43
Q

To prove a charge of theft by a person in a special relationship under section 220(1), it is necessary to prove that the person knew they had to:
AP

A

Account to any other person for the property, or for any proceeds arising from the property

44
Q

The case R v Morley (2009) NZCA 618 discussed the matter of loss in relation to s240(1)(d) Crimes Act 1961 (causing loss by deception). Which statement best describes what was held in this matter:

A

The prosecution must prove that the loss alleged by the victim must have been induced by, or caused in reliance, upon the deception

45
Q

Brown booked into a motel and on checking in he offered to pay in advance. He was told that he could pay the account in the morning. He left early without checking out or paying. What is Brown’s liability?

A

No offence is committed

46
Q

A fraudulent device, trick or stratagem used with intent to deceive any person must be:

A

Fraudulent. meaning dishonest in the traditional moral sense

47
Q

False document includes a document of which the whole or any material part purports to be made:
AF

A

a) By a person who did not authorise its making
b) By a fictitious person

48
Q

The serious fraud office investigates serious or complex fraud complaints. An investigator from that office may only make an arrest of a fraud suspect:

A

Under no circumstances as the investigator does not have powers of arrest

49
Q

Both possession and title will pass on to a bona fide or innocent purchaser:

A

When the property is brought by a third party from a person who obtained it by deception before the original owner voids any title

50
Q

In relation to the offence of obtaining credit by deception under section 240(1)(b) of the crimes act 1961, which of the following statements is not correct: (a) A debt or liability must have been incurred at the time credit is obtained
(b) The debt or liability must be legally enforceable
(c) Under the definition of obtain in s217 of the crimes act 1961. It is not sufficient that the accused obtained the extension of credit to another person

A

(c) Under the definition of obtain in s217 of the crimes act 1961. It is not sufficient that the accused obtained the extension of credit to another person

51
Q

A person can only be charged under section 249(1) in relation to accessing a computer system for dishonest purpose when:

A

He/she actually obtained any property, or privilege, service, pecuniary advantage, benefit or valuable consideration or loss to any other person

52
Q

A senior executive of a company who is acting on behalf of the company commits a series of deceptions causing other companies to sustain financial losses. In these circumstances any criminal liability rests with:

A

The senior executive only as the state of mind for the offending was his alone

53
Q

What was held in R v Crooks in relation to knowledge

A

The accused may be liable if their conduct has amounted to wilful blindness and this is equated to knowledge

54
Q

A person can be said to have control of a thing if:

A

It is proved that the accused did in fact exercise some control over the thing

55
Q

For propensity evidence to be admissible the ultimate issue is:

A

The degree to which the probative value of the evidence outweighs the prejudicial effect

56
Q

The term valuable consideration means that a person can:

A

Obtain anything capable of being valuable consideration, whether of a monetary kind or of any other kind

57
Q

What was held in R v Harney?
FTI

A

A foresight of the dangerous consequences together with intent to continue the course regardless of the risk

58
Q

How can title be voided?

A

Make a complaint to the Police

59
Q

A person who has property on hire purchase has:

A

possession only

60
Q

What is an example of obtaining a valuable consideration?

A

(a) Monetary payment in return for goods or services. (b) Goods given in return for services provided.
(c) Issuing a false invoice to receive payment for goods never supplied.
(d) All of the above.

(d) All of the above.

61
Q

John finds a gym membership card for the local gym I swimming pools, its a hot day so John goes to the swimming pools and uses this card to gain entry without paying. What is John’s criminal liability?

A

Uses a document

62
Q

Where a person has been induced to part with goods by deception, what are two steps he can take to avoid the deceiver’s title?

A
  1. Communication. Taking all possible steps to bring it to the offenders notice e.g. writing communication, text, phone call etc.
  2. By advising the Police that goods were obtained by fraudulent means.
63
Q

To successfully prosecute a person on a charge of (using altering or reproducing documents with intent to deceive) under section 259 the Crimes Act 1961, name three mental elements you must prove?

A
  1. The defendant must know that the document had been altered with intent to deceive.
  2. The defendant must have intended by the employment of the document, or by causing another to use or rely on it, to obtain by deception any property, privilege, service, pecuniary advantage, benefit or valuable consideration or to cause loss to any other person.
  3. There must be an intention to acquire or retain the property etc, or to cause loss “by deception”.
64
Q

An offender knowingly presents to the retailer an item with two price tags for different amounts, aware that the higher amount is the correct price, he shows the lower price to the checkout operator and obtains the item for the lower price. He is apprehended by Police some two days later for this offence.
a) What offence has the offender committed?
b) Who has title to the items obtained by the offender?

A

a) Obtains by Deception. Sec 240(1)(a) CA 1961

b) Title would belong to the offender which has been obtained by deception.

65
Q

The prosecution must establish either that the defendant knows or believes his representation is false in a material particular, or is reckless as to whether it is false.

State your understanding in relation to the term False in a material particular?

A

An important, essential or relevant detail or item. A minor detail may amount to a “material particular” if it is of consequence to the facts of the case.

66
Q

Investigations into company fraud complaints will usually involve enquirers with the Ministry of Commerce. State four possible sources available there?
CORI

A
  1. Companies Office.
  2. Official assignee.
  3. Registrar of Companies.
  4. Insolvency Services.
67
Q

Propensity evidence may be relevant in some deception cases. When may evidence of propensity be called in cases of deception?

A

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

68
Q

What two points were made in the case R v Harney in relation to recklessness?

A

Recklessness means the conscious and deliberate taking of an unjustified risk

69
Q

You are investigating a cheque fraud series where the account has been opened and a cheque book obtained using fictitious details. Apart from the normal bank enquirers in relation to cheque offences, list four possible enquirers you should make regarding the offender opening the account with the bank
BANDDDDS

A
  1. Account number and the date it was opened.
  2. Nature and amount of the first deposit.
  3. Details of any other deposit.
  4. Details used when the account was opened.
  5. Descriptions of the suspect and any of their associates at the time.
  6. Names and addresses of the employees who opened the account and any other employees who can identify the suspect. Interview these employees and obtain statements.
  7. Serial numbers of the cheques supplied.
  8. Details of the dishonored cheques and the people or firms defrauded.
70
Q

Define / explain R v Laverty in relation to inducement.

A

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.

71
Q

Define / explain R v McKay in relation to intention.

A

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.

72
Q

The key to a successful company fraud investigation is to seek advice early . Outline the suggested sources of specialist information you should canvass.
CALM-FN

A
  1. Police accountants and legal officers,
  2. Ministry of commerce.
  3. Commerce Commission.
  4. Financial Markets Authority
  5. NZ Customs
  6. Liquidators and receivers.

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