Deception Flashcards
Dishonestly Taking a Document
(Act & Section)
Section 228(1)(a), Crimes Act 1961
Dishonestly Taking a Document
228(1)(a)
(elements)
- Everyone
- With intent to obtain any property, service, pecuniary advantage, or valuable consideration
- Dishonestly
- Without claim of right
- Takes or obtains
- Any document
Dishonestly Using a Document
(Act & Section)
Section 228(1)(b), Crimes Act 1961
Dishonestly Using a Document
228(1)(b)
(Elements)
- Everyone
- With intent to obtain any property, service, pecuniary advantage, or valuable consideration
- Dishonestly
- Without claim of right
- Uses or attempts to use
- Any document
Dishonestly Taking or Using a Document
(Penalty)
7 years imprisonment
Obtain
(define)
obtain, in relation to any person, means to obtain or retain for himself or herself or for any other person.
Property
(define)
Property includes any real or 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.
Service
(define)
R v Cara
“Service is limited to financial or economic value and Excludes privileges or benifits”
Pecuniary Advantage
(Case Law)
Hayes v R
Hayes v R held
(pecuniary advantage)
A pecuniary advantage is “anything that enhances the accused’s financial position. It is that enhancement which constitutes the element of advantage.
Valuable consideration
(define)
Hayes v R
“anything capable of being valuable consideration, whether of a monetary kind or of any other kind; in short, money or money’s worth.”
Valuable consideration
(examples)
- 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.
Dishonestly
(define)
Dishonestly, in relation to an act or ommission, means done or omitted without a belief that there was express or implied consent to, or authority for, the act or omission from a person entitled to give such consent or authority.
Dishonestly
(case law)
Hayes v R
Hayes v R held
(dishonestly belief)
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.
claim of right
(define)
claim of right, in relation to any act, means a belief 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.
Nature of belief in claim of right
(4 points)
First - must be a belief in a proprietary or possessory right in property.
Second - belief must be for the property in relation to the alleged offence
Third - the belief must be held at the time the alleged offence was committed.
Fourth - the belief must be actually held by the defendant. Does not need to be reasonable, and can be a mistake or ignorance. The reasonableness will influence the credibility of the belief.
Take
(define)
For tangible property, theft is committed by a taking when the offender moves the property or causes it to be moved.
Document
(define)
document means a document, or part of a document, in any form; and includes without limitation, -
(a), (b), (c), (d), (e)
Document (a)
(define)
any paper or other material used for writing or printing that is marked with matter capable of being read
Document (b)
(define)
(b) any Bhotograph, or any photographic negative, plate, slide, film, or microfilm, or any photostatic negative
Document (c)
(define)
(c) any disC, tape, wire, sound track, card, or other material or device in or on which information, sound or other data are recorded, stored (whether temporarily or permanently), or embodied so as to be capable, with or without the aid of some other equipment, of being reproduced
Document (d)
(define)
(d) any material by means of which information is supplied, whether directly or by means of any equipment, to any device used for recording or storing or processing information
Document (e)
(define)
(e) any material derived, whether directly or by means of any equipment, from information recorded or stored or processed by any device used for recording or storing or processing information.
Document
(case law)
R v Misic
R v Misic held
“Essentially a document is a thing which provides
- evidence or
- information or
- serves as a record.”
Uses or attempts to use
(case law)
Hayes v R
R v Hayes held
(use/attempted use)
“An unsuccessful use of a document is as much a 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 successful it may be difficult to draw a clear line between use and attempted use.
Definition of Attempts (1)
- Everyone who,
- Having an intent to commit an offence,
- does or omits an act for the purpose of accomplishing his object
- is guilty of an attempt to commit the offence
- whether in the circumstances it was possible to commit the offence or not
Definition of Attempts (2)
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
Definition of Attempts (3)
An act done or omitted with intent to commit an offence may constitute an attempt if it is done immediately or proximately connected with the intended offence, whether or not there was any act unequivocally showing the intent to commit that offence.
Obtaining Property by Deception
(Act & Section)
Section 240(1)(a), Crimes Act 1961
Obtaining Property by Deception
(elements)
- Everyone who
- by any deception
- without claim of right
- obtains ownership or possession of or control over
- any property, privilege, service, pecuniary advantage, benefit, valuable consideration
- directly or indirectly
Obtaining Credit by Deception
(Act & Section)
Section 240(1)(b), Crimes Act 1961
Obtaining Credit by Deception
(elements)
- Everyone who
- by any deception
- without claim of right
- in incurring any debt or liability
- obtains credit
Obtaining by Deception
Altering documents
(Act & Section)
Section 240(1)(c), Crimes Act 1961
Obtain by deception
Altering documents
(elements)
- Everyone who
- by any deception
- without claim of right
- 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
Causing Loss by Deception
(Act & Section)
Section 240(1)(d), Crimes Act 1961
Causing Loss by Deception
(elements)
- Everyone who
- by any deception
- without claim of right
- causes loss to any other person
Deception
(define)
(3 parts a b & c)
Section 240(2)
Deception means-
(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 false in a 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.
Representation
(define)
Not defined, but Semester & Brookbanks suggest “it must be capable of being false so it must contain a proposition of fact”
False representation
(important points)
- must be false in a material particular
- defendant must know it is false in a material particular or
- be reckless whether it is false
- wilful blindness will suffice
Must proves for deception
(4 parts)
- 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
Intent to deceive
(case law)
R v Morely
R v Morely held
(Intent to deceive)
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.
Recklessness
(case law)
Cameron v R
Cameron v R held
Recklessness is established if:
(a) the defendant recognized that there was a real possibility that:
(i) his or her actions would bring about the proscribed result and/or
(ii) that the proscribed circumstances existed; and
(b) having regard to that risk those actions were unreasonable
Intent
(define)
- A deliberate act, and
- Intent to Produce a Specific Result
Deception Examples
Orally
Verbally claiming to own goods that are in fact subject to a hire purchase agreement.
Or R v Caslin the false prostitute.
Deception Examples
by conduct
Representing oneself to be a collector for charity by appearing to be carrying an official collection bag.
Or R v Barnard the fake student in cap and gown.
Deception Examples
Documentary
Presenting a false certificate of qualification, or completing valueless cheques.
A representation by the defendant
(case law)
R v Morely
R v Morely held
(representation)
Representations must relate to a statement of existing fact, rather than a statement or future intention.
Silence as a representation
As a general rule silence or non-disclosure will not be regarded as a representation.
The exception is label swapping, where you don’t tell a shop keeper the price is wrong.
Police v Dronjak - 2 labels and knew the wrong price
Rao v Police - actively swapped the price tags.
Knowledge established
(4 ways)
Knowledge can be established by:
- an admission
- implication from the circumstances surrounding the event
- propensity evidence
- wilful blindness (R v Crooks)
Material Particular
(define)
“A matter will be a ‘material particular’ if it is something important or something that matters.”
R v Mallett
device
(define)
A ‘plan, scheme or trick’
Trick
(define)
An action or scheme undertaken to fool, outwit, or deceive.
Stratagem
(define)
A cunning plan or scheme especially for deceiving an enemy, or trickery.
“Privilege” or “benifit”
(examples)
- Using another person’s gym membership card so that you can use the gym facilities
- Access to medical services
- The withdrawal of an assault charge
- A reduction in sentence for an offence
If benifit or privilege does not involve money, no need for loss or injury to the person defrauded
Ownership
(define)
Ownership is synonymous with the concept of title
Possession
(case law)
R v Cox
R v Cox held
(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 of property, must prove?
- it must be proved that the defendant did in fact exercise some control over the particular property
Control
(define)
To “control” something means to exercise authorative or dominating influence or command over it.
Pecuniary advantage
(examples)
- cash from stolen goods
- clothing or cash obtained by a credit or EFTPOS card
- A discount (by using a student ID)
- avoiding or deferring a payment of a debt
R v Dakers,- same TAB ticket twice, still a use, just an unsuccessful one.
Debt or liability incurred must be….
… legally enforceable
Debt
(define)
‘Debt’ means money owing from one person to another
Liability
(define)
‘Liability’ means a legally enforceable financial obligation to pay, such as the cost of a meal
(succulent Chinese meal)
Fisher v Raven held
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.
Credit
(case law)
Fisher v Raven
Credit obtained,
(examples)
- Obtaining money on loan
- extending existing overdraft facilities
- renting or leasing a dwelling
Timing of intent to deceive
(case law)
R v McKay
R v McKay held
That the credit had been obtained on booking in but at that time the accused did not possess an intent to deceive
Continuing representation
In many cases a representation, whether by words or conduct, may be of a continuing effect….
If during the course of a meal a diner decides to avoid payment, the continuing representation of an intention to pay will become false and any subsequent obtaining of food is s240
Induces
(define)
“To persuade, bring about or give rise to”
(very wide scope)
Proof of inducement in deception
(must prove) - (2 points)
- that the false representation was believed, and
- that it was the consequence of that belief that the victim parted with his or her money
(direct evidence from victim is best, but in some cases circumstantial will suffice)
Inducement
(case law)
R v Laverty
R v Laverty held
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.
(otherwise only an attempt)
Deliver over
(define)
To deliver over, is to surrender up someone or something
Execute
(define)
To execute, is to put a course of action into effect.
Endorse
(define)
To endorse, is to write or sign on a document
Alter
(define)
To alter, is to change in character or composition, typically in a comparatively small but significant way
Accept
(define)
To accept, is to receive something.
Person
(define)
Person, owner, and other words and expressions of the like kind, include
- the Crown and
- any public body or local authority, and
- any board, society, or company, and
- any other body of persons, whether incorporated or not, and
- the inhabitants of the district of any local authority, in relation to such acts and things as it or they are capable of doing or owning
s240(1)(d) - must prove
(3 points)
- the loss was caused by deception
- it was reasonably foreseeable some more than trivial loss would occur, but
- need not prove the loss was intentionally caused
Deception Offences
(penalties)
Over $1000 - 7 years
$500 - $1000 - 1 year
Under $500 - 3 months
Propensity Rule
Section 40, Evidence Act 2006
Subsection (1)(a)
definition
(1)(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.
Propensity Rule
Section 40, Evidence Act 2006
Subsection (1)(b)
exception
(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 proceedings in question
Propensity Rule
Section 40, Evidence Act 2006
Subsection (2)
who
(2)
A party may offer propensity evidence in a civil or criminal proceeding about any person
Propensity Rule
Section 40, Evidence Act 2006
Subsection (3)
restrictions
(3)(a)
In criminal proceeding, in accordance with 41, or 42, or 43.
(b)
For sexual assault complainant, only in accordance with 44.
Propensity Rule
Section 40, Evidence Act 2006
Subsection (4)
veracity
(4)
Evidence solely or mainly relevant to veracity not applicable
Propensity Offered by prosecution
Section 43, Evidence Act 2006
Subsection (1)
balancing
Only if the probative value outweighs the risk of unfair prejudicial effect.
Propensity Offered by prosecution
Section 43, Evidence Act 2006
Subsection (3)
what a judge may consider
(a) the frequency of the acts
(b) the connection in time between the propensity acts and the charge acts
(c) the extent of the similarity between the two
(d) number of people making similar allegations
(e) whether (d) is because of collusion or suggestibilty.
(f) the extent that the circumstances are unusual
Propensity Offered by prosecution
Section 43, Evidence Act 2006
Subsection (4)
what the judge MUST consider
(a) whether the evidence is likely to unfairly predispose the fact-finder against the defendant
(b) whether the fact-finder will tend to give disproportionate weight in reaching a verdict to evidence of other acts or omissions
Title
(define)
“a right or claim to the ownership of property”
Section 149, Contract and Commercial Law Act 2017
sale by person who is not owner
Applies if
- not the owner
- not sold with authority or consent of owner
(2) The buyer acquires no better title to the goods than the seller had, unless the owner of the goods is by the owner’s conduct preclude from denying the seller’s authority to sell.
Section 149, Contract and Commercial Law Act 2017
sale under voidable title
Applies if
- seller had voidable title
- seller’s title not yet voided
(2) The buyer acquires a good title to the goods if the buyer buys the goods in good faith and without notice of the seller’s deficit in title
Section 246(4), Crimes Act 1961
IF:
(a) any property stolen or obtained by any other imprisonable offence has been returned to the owner, or
(b) legal title to any such property has been acquired by any person–
a subsequent receiving of it is not an offence, even though the receiver may know that the property had previously been stolen or obtained by any imprisonable offence.
Theft by person in special relationship
(Act & Section)
Section 220, Crimes Act 1961
Section 220 applies to….?
(1) This section applies to 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
Section 220
Everyone to whom (1) applies commits theft who…..
who 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.
Section 220
This section applies whether or not….
… the person was required to deliver over the identical property received or in the person’s possession or control.
Section 220
For the purposes of subsection (1), it is a question of ___? ___ whether the circumstances required any person to account or to act in accordance with any requirements
LAW
Two core elements of s220
(a) KNOWLEDGE they received the property with conditions on how they can deal with it or the proceeds, based on another’s requirements.
(b) INTENT to depart from their obligation.
Forgery
(Act & Section)
Section 256, Crimes Act 1961
Forgery
Section 256(1)
(Elements)
- Everyone who
- makes a false document
- with intention of using it
- to obtain any property, privilege, service, pecuniary advantage, benefit, or valuable consideration.
Forgery
Section 256(1)
(penalty)
10 years imprisonment
Forgery
Section 256(2)
(Elements)
- Everyone who
- makes a false document
- knowing it to be false
- with intent that it be used or acted upon as genuine
- whether in NZ or elsewhere
Forgery
Section 256(2)
(penalty)
3 years imprisonment
Forgery
When is forgery complete?
as soon as the document is made with-
- the intent described in (1) or
- the knowledge and intent described in (2)
AND even if the false document is incomplete if it is made so as to indicate it was to be acted upon as genuine.
False document means a document–
(define)
(a) of which the whole or any material part is purported to be made by any person who did not make it, or by a ficticious person.
(b) of which the whole or any material part purports to be made by or on behalf of any person who did not authorize its making, or on behalf of a ficticious person; or
(c) of which the whole or any material part has been has been altered, whether by addition, insertion, deletion, obliteration, erasure, removal, or otherwise, and that purports to have been altered by or on behalf of a person who did not alter it or authorize its alteration, or by or in behalf of a ficticious person; or
(d) that is in whole or in part, a reproduction of any other document, and that purports to have been made by or on behalf of a person who did not make it or authorize its making, or by or on behalf of a ficticious person; or
(e) that is made in the name of a person, either by that person or by that person’s authority, with the intention that is should pass as being made by some other person who did not make it, or by a ficticious person.
(eg. a ‘newly discovered’ painting by Van Gogh)
Material alterations
(6 ways)
- additions
- insertions
- deletions
- obliterations
- erasures
- removal of material or otherwise
Material Alteration
(define)
An alteration is a material Alteration if it increases the value or negotiability of a document or instrument. A false document can be made by making material alterations to a genuine document.
Specified Intent for Forgery
Intent:-
- To use the false document to obtain, or
- That the false document be used or acted on as genuine
(Intent to deceive, though not an essential element, an intent to deceive by means of that which is false must be proved)
Examples of forgery
- writing an exam paper in the name of another person who is required to sit the exam
- pre-dating a deed to give priority over another
- Forging letters of recommendation for inclusion in a CV that are necessary to obtain a position
- Falsely completing a statement of service on a witness summons.
Using Forged Documents
(Act & Section)
Section 257(1), Crimes Act 1961
Using Forged Documents
(elements)
- Everyone who
- knowing a docuemt 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; or
(c) causes any other person to use, deal with, or act upon it as if it were genuine.
Altering, concealing, destroying, or reproducing documents with intent to deceive
(Act & Section)
Section 258, Crimes Act 1961
Altering, concealing, destroying, or reproducing documents with intent to deceive
(elements)
- Everyone who
- with intent to obtain by deception
- any property, privilege, service, pecuniary advantage, benefit, or valuable consideration, or cause loss to any other person
- (a) alters, conceals, or destroys any document, or causes any document to be altered, concealed, or destroyed or
- (b) makes or causes to be made a document that is in whole or in part a reproduction of any other document.
Using altered or reproduced document with intent to deceive
(Act & Section)
Section 259, Crimes Act 1961
Using altered or reproduced document with intent to deceive
(Elements)
- Everyone who
- knowing any document to have been made with intent to obtain by deception
- with intent to obtain any property, privilege, service, pecuniary advantage, benefit, or valuable consideration or cause loss to any other person
- uses or deals with or acts upon the document or causes any person to use or deal with, or act upon, the document.
Altering, concealing, destroying, or reproducing documents with intent to deceive/Using altered or reproduced document with intent to deceive
(penalties)
10 years imprisonment
Computer Crime
to access
(define)
access, in relation to any computer system, means instruct, communicate with, store data in, receive data from, or otherwise make use of any of the resources of the computer system
Computer Crime
authorisation
(define)
authorisation includes an authorisation conferred on a person by or under an enactment or a rule of law, or by an order of a court or judicial process
Computer Crime
computer system
(define)
(a) means—-
(i) a computer; or
(ii) 2 or more interconnected computers; or
(iii) any communication link between computers or to remote terminals or another device; or
(iv) 2 or more interconnected computers combined with any communication links between computers or to remote terminals or any other device; and
(b) any part or (a) and all related input, output, processing, storage, software, or communication facilities, and stored data.
Accessing a computer system for dishonest purpose
(Act & Section)
Section 249(1)/(2), Crimes Act 1961
Accessing a computer system for dishonest purpose
Section 249(1)
(Elements)
-Everyone who
- 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 or
- (b) cause loss to any other person
Accessing a computer system for dishonest purpose
Section 249(2)
(Elements)
-Everyone who
- directly or indirectly
- accessed any computer system with intent to
- dishonestly or by deception
- without claim of right
- (a) to obtain any property, privilege, service, pecuniary advantage, benefit, or valuable consideration or
- (b) to cause loss to any other person
Damaging or interfering with a Computer System danger to life
(Act & Section)
Section 250(1), Crimes Act 1961
Damaging or interfering with a Computer System danger to life
(elements)
- Everyone who
- intentionally or recklessly
- destroys, damages, or alters any computer system
- if he or she knows or ought to know danger to life is likely to result
Damaging or interfering with a Computer System without authority
(Act & Section)
Section 250(2), Crimes Act 1961
Damaging or interfering with a Computer System without authority
(elements)
- Everyone who
- intentionally or recklessly
- without authorisation
- knowing that he or she is not authorized, or being reckless as to whether or not her or she is authorized
- damages, deletes, modifies, or otherwise interferes with or impares any data or
- causes any data or software in any computer system to be damaged, deleted, modified, or otherwise interfered with or impared or
- causes any computer system to fail or deny service to any authorized users.
Accessing computer system without authorisation
(Act & Section)
Section 252, Crimes Act 1961
Accessing computer system without authorisation
(elements)
- Everyone who
- directly or indirectly
- intentionally accesses any computer system
- without authorisation
- knowing that he or she is not authorized to access that computer system or being reckless as to whether or not he or she is authorised to access that computer system
Computer Crime penalties
Damaging (danger to life) - 10 years
Damaging (unauthorized) - 7 years
Accessing dishonestly (success) - 7 years
Accessing dishonestly (intended) - 5 years
Accessing w/o authorisation - 2 years
Acccess requires…
Access requires that the person instructing or communicating with the computer system has some form or connection with the computer system through which instructions or communications may pass.
