Deception Flashcards
228(1)(a)
Dishonestly takes a document
Dishonestly
Without Claim of Right
Takes or Obtains
Any Document
With intent to obtain any property, service, pecuniary advantage or valuable consideration,
228(1)(b)
Dishonestly uses a document
Dishonestly
Without claim of right
Uses or attempts to use
Any document
With intent to obtain any property, service, pecuniary advantage or valuable consideration
240(1)(a)
Obtaining by deception
By any deception
Without claim of right
Obtains
Ownership or possession of or control over
Any property
Privledge
Service
Pecuniary advantage
Benefit
Valuable Consideration
Directly or indirectly
240(1)(b)
Obtaining by deception
By any deception
Without claim of right
In incurring any Debt or Liability
Obtains credit
240(1)(c)
By any deception
Without claim of Right
Induces or cause 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
240(1)(d)
By deception
Without claim of right
Causes loss to any other person
S240(1A)
Without reasonable excuse
Sells, transfers or makes available
Any document or any thing capable of being used to derive a pecuniary advantage
Knowing
That by deception and without claim of right
The document/thing
Was delivered, executed, made, accepted, endorsed or altered
Service CL
R v Cara
Service is limited to financial or economical value and excludes privileges or benefits
Pecuniary advantage CL
Hayes v R
A pecuniary advantage is anything that enhances the accused’s financial position. It is that enhancement which constitutes the element of the advantage
Valuable consideration
Money or moneys worth
Dishonestly
Without a belief that there was expressed or implied consent or authority (from a person entitled to give consent/authority)
Dishonestly CL
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 of the issues of whether the belief was actually held
Taking
When the offender moves or causes the property to be moved
Document & CL
Defined under 217
R v Misic
Essentially a document is a thing which provides evidence or information or serves as a record
Uses CL
Hayes v R
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 the ultimate obtaining of a pecuniary advantage
240(2)(a)
Deception
- a false representation whether orally, documentary or by conduct
- person making representation intends to deceive any other person and
- knows that it is false in material
Is reckless to whether it is false in material.
240(2)(b)
An omission to disclose a material particular
With intent to deceive any person
In circumstances where there is a duty to disclose it
240(2)(c)
A fraudulent device, trick or stratagem used with intent to deceive any person
False representation
Falsity of representation must be proved.
Each misrepresentation should be included in a separate count
Deception: what must be proved
- intent to deceive
- there was a representation
- the representation was false
The defendant either knew - it was false
- was reckless to whether it was false
Intention to Deceive CL
R v Morley
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
Representation CL
R v Morley
Representation must relate to a statement of existing fact, rather than a statement of future intention
Knowledge
Knowing or correctly believing
Can be established by
- an admission
- implications from the circumstances
- propensity evidence
Omission
Inaction
Duty to disclose
Some material particular that was not disclosed by the defendant
( duty to disclose may originate from civil law)
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
Liability
A legally enforceable financial obligation to pay (such as cost of a meal)
Credit
The obligation on the debtor to pay or repay, and the time given for them to do so
Credit CL
Fisher v Raven
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
Timing of deception CL
R v McKay
On appeal it was held the credit had been obtained on booking in but at that time the accused did not possess an intent to deceive
R v Laverty
It is necessary for the prosecution to prove that the person parting with the property was induced to do by the false representation made.
Deliver over, execute, make, accept, endorse, destroy or alter
Deliver over - surrender up someone or something
Execute - to put a course of action into effect
Endorse - to write or sign on a document
Alter - to change in character or composition, typically in a comparatively small but significant way
Accept - to receive something
Penalties for deception
S241
Over $1000 = 7 years
$500-$1000 = 1 year
Less than $500 = 3 months
Title
Right or claim to ownership of property
Title - sale by person who is not owner
Section 149, contract and commercial law
Goods sold by people who are not the owner and without the owners consent do not get title unless the seller has authority (e.g warrant)
Voidable title
151 contract and commercial law act 2017
Applies if
- seller of goods has a voidable title to the good
- the seller’s title has not become void at the time of the sale
- buyer acquires a good title if he buys the goods in good faith
Propensity
A persons propensity to act in a particular way or have a particular state of mind
Probative value- propensity
Judge may consider
- frequency of previous acts
- connection in time between the acts
- the extent of similarity between the acts
- number of persons making allegations
- whether the allegations may be a result of collusion or suggestibility
Propensity- judge must consider when assessing prejudicial effect
- the evidence is likely to unfairly predispose the fact finder against the defendant
- whether the fact finder will tend to give disproportionate weight in reaching a verdict to evidence of other acts or omissions
Difference between theft and deception
Possession and ownership
Theft never obtain ownership
S220- theft in a special relationship
The defendant has intentionally
- failed to account to any other person for property received by the defendant
- failed to account to any other person for the proceeds of property received by the defendant
- dealt with the property received by the defendant otherwise than the requirements of some other person
- dealt with the proceeds of the property received by the defendant otherwise in accordance with the requirements of some other person
Mental elements of S220
Must know that the acquisition of the property was on terms which require the defendant to account for the property or its proceeds or deal with the property or its proceeds in accordance with the direction of another person
The defendant intentionally departed from his or her obligations
Document - S217 CA1965
(a)paper …… marked with material capable of being read
(b) photograph ….,… things similar to
(c) disc, tape, ……card on which information, sounds, data recorded or stored as to be capable of being reproduced with or without some other equipment
(d)any material by means of which information is supplied
Forgery S256
(1) Makes a false document
With intent to use it to obtain
Any property, privilege, service or pecuniary advantage
(2) Makes a false document
With the intent that it in any way be used or acted upon
Whether in NZ or elsewhere as genuine
False document alterations
- additions
- insertions
- deletions
- obliterations
-erasures - removal of material or otherwise
Forgery Intent
Knowing the document was false
- intended to use the document to obtain
- intended to use the document or that the document be acted on as if it was genuine
Forgery complete
As soon as document is made
(Even if the false document isn’t complete (lacking signatures))
Forgery vs altering
Forgery- intent to deceive only required
Altering, concealing, destroying or reproducing a document you must prove that the offender intended to obtain by deception
Uses an altered document - mental
Must know
- document has been altered with intent to deceive
- intended to obtain any property, privilege, service or pecuniary advantage
- must be an intention to acquire or retain the property etc
Access
Instruct, communicate with, store data in, receive data from, or otherwise make use of any of the resources of the computer system
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
249(1) accessing a computer system for dishonest purpose
Dishonestly or by deception
Without claim of right
Directly or indirectly
Accesses any computer system thereby
(a) obtaining any property, privilege, service, pecuniary advantage or valuable consideration
(b) causes loss to any other person
(2) as above but intent
249(1) vs 249(2)
(1) obtains the benefit/ causes the loss
(2) has the intent (but may not get the result
Computer system
(i) A computer
(I) 2 or more interconnected computers
(iii) any communication links between computers or to remote terminals or another device
(iiii) 2 or more computers combined with above
includes all processing, storage, software or communication facilities or stored data
250(1) Damaging or Intefering with a computer system
Intentionally or recklessly
Destroys, damages or alters
Any computer system
If he or she knows or ought to know that danger to life is likely to result
250(2) damaging or interfering with a computer system
- makes the offence to damage any computer system (relate to data or software)
- must act without authority and have knowledge they are not authorised (or are reckless to the fact)
(b) relates to when the defendant makes the victim cause the reaction e.g activating a virus
252 accessing a computer system without authority
Intentionally accesses
Directly or indirectly
Any computer system
Without authorisation
Knowing that he or she is not authorised to access that computer system
False Document
Whole or any material part purports to be made by any person who did not make it
