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CIB Modules > Deception > Flashcards

Deception Flashcards

1
Q

Dishonestly

A

s217 CA61
In relation to an act or omission, 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.

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1
Q

Takes

A

As in theft s219 CA61
Theft is committed by a taking when the offender moves the property or causes it to be moved.

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1
Q

Without claim of right

A

s2 CA61
In relation to any act, means at the time of the act, a belief in a proprietary or possessory right in property. Belief may be based on ignorance or mistake of fact.

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1
Q

Obtains

A

s217 CA61
Means obtain or retain for him/herself or for any other person.

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2
Q

Use

A

Adams on Criminal Law
Use can include a single action or continuing use.

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3
Q

Document

A

s217 CA61
Means a document or part of a document, in any form. Includes:
- Paper/material containing anything that can be read
- Photos, negatives and related items
- Discs, tapes, cards or other devices/equipment on which information is stored or can reproduced.

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4
Q

Property

A

s2 CA61
Includes real or personal property, and any estate or interest in any real or personal property, any debt, any thing in action, any other right or interest.

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5
Q

Service

A

R v Cara
Service is limited to financial or economic value and excludes privilege or benefits.

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6
Q

Pecuniary advantage

A

Hayes v R
Anything that enhances the accused’s financial position.

E.g. cash from stolen goods, clothing or cash obtained by credit or eftpos card, a discount, avoiding or deferring payment of debt.

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7
Q

Valuable consideration

A

Hayes v R
Anything capable of being valuable consideration, whether of a monetary kind or any other kind. Money or money’s worth.

E.g. 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.

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8
Q

Intent

A

A deliberate act. Intent to commit the act and get a specific result.

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9
Q

Deception - s240(2)

A

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

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10
Q

Material particular

A

An important, essential, or relevant detail or time. Something important or something that matters.

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11
Q

Obtains (goods)

A

Goods are obtained if goods come under their control, even though they may not have physical possession

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12
Q

Obtains (property)

A

Property is obtained if deception made to one person means that the property is then actually obtained from another person, provided that the deception operated on the mind of the person giving up the property.

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13
Q

Control over

A

The power of directing, command. Does not need to possess in order to control.

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14
Q

Benefit/privilege

A

Are not limited to a privilege or benefit of a pecuniary nature.
Both mean a special right or advantage.

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15
Q

Debt

A

Money owing from one person to another.
Must be legally enforceable, if contract is void or illegal - no offence.

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16
Q

Liability

A

A legally enforceable financial obligation to pay, such as the cost of a meal.
Must be legally enforceable, if contract is void or illegal - no offence.

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17
Q

Credit

A

Refers to obligation on the debtor to pay or repay, and the time given for them to do so. Intangible. Must be in respect of a monetary obligation.

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18
Q

Deliver over

A

To surrender up someone or something.

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19
Q

Execute

A

To put a course of action into effect.

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20
Q

Endorse

A

To write or sign on a document.

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21
Q

Induce

A

To persuade, bring about or give rise to.

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22
Q

Alter

A

To change in character or composition, typically in a comparatively small but significant way.

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23
Q

Accept

A

To receive something.

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24
Q

Thing (pecuniary advantage)

A

The ‘thing’ must be tangible and capable of being used to derive a pecuniary advantage.

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25
Q

Loss

A

Financial detriment to the victim

26
Q

Lien

A

A right to keep possession of property belonging to another person until a debt owed by that person is discharged.

27
Q

Examples of valuable consideration

A
  • Monetary payment in return for services provided
  • Goods given in return for services provided
  • Issuing a false invoice to receive payment for goods never supplied.
28
Q

Knowledge can be established by:

A
  • An admission
  • Implication from circumstances surrounding event
  • Propensity evidence
29
Q

Examples of credit:

A
  • Obtaining money on a loan
  • Extending existing overdraft facilities
  • Renting or leasing a dwelling
30
Q

Examples of Forgery

A
  • Writing an exam paper in the name of someone else
  • Pre-dating a deed to give it priority over another
  • Forging letters of recommendation necessary for a CV
  • Falsely completing a statement of service on a witness summons
31
Q

Four possible sources at Ministry of Business, Innovation and Employment (RICO)

A
  • Registrar of Companies
  • Companies Office
  • Official Assignee
  • Insolvency Services
32
Q

Representations

A

Not defined. Examples include representations about a past or present fact, about a future event, or about an existing intention, opinion, belief, knowledge or other state of mind.
Suggests it must be capable of being false so it must contain a proposition of fact.

33
Q

False representation

A

The representation must be false and the defendant must know or believe that it is false in a material particular, or be reckless as to whether it is false in a material particular.
Absolute certainty not required, wilful blindness as to falsity of statement will suffice.

34
Q

s41 Evidence Act 2006

A

Propensity evidence means evidence that tends to show a person’s propensity to act in a certain 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.

Does not include evidence of an act or omission that is 1 of the elements of the offence for which the person is being tried or the cause of action in the proceeding in question.

35
Q

When considering probative value of propensity evidence, Judge must…

FENNUC

A
  • Take into account the nature of the issue in dispute
  • Frequency acts, omissions, events or circumstances have occurred
  • Connection in time between acts, omissions, events or circumstances that are subject of the offence and the offence being tried.
  • Extent of similarity
  • Number of persons making allegations that are similar or the same as, and whether these may be the result of collusion or suggestibility.
  • The extent to which the subject of evidence and trial are unusual
36
Q

Difference between theft and obtaining by deception

A

Lies with the concepts of possession and title or ownership.

37
Q

To prove a charge of forgery under s256(1)

A
  • Made a false document
  • With intent to use it to obtain property etc
38
Q

To prove a charge of forgery under s256(2)

A
  • Made a false document
  • Knowing it to be false
  • With intent that it in any way be used or acted upon, as genuine
39
Q

When a person alters a document, they might make…
ROADIE

A
  • Additions
  • Insertions
  • Deletions
  • Obliterations
  • Erasures
  • Removal of material
40
Q

When is an alteration a material alteration?

A

If it increases the value or negotiability of a document or instrument.

41
Q

False representations may be made…

A
  • Orally (eg verbally claiming to own goods)
  • Documentary (eg presenting a false certificate)
  • By conduct (eg representing oneself to be a collector from a charity)
    Or by combination.
    Can be implied.
42
Q

Proof of inducement…

A

Obtain direct evidence from victim
- That the false representation was believed, and
- That it was because of that belief that the victim parted with their money.

43
Q

Need to prove ‘causing loss’

A
  • The loss was caused by deception
  • It was reasonably foreseeable that more than a trivial loss would occur.
    Do not need to prove loss was intentionally caused. No requirement that anyone benefits.
44
Q

Four beliefs for claim of right

A
  1. Belief must be in a proprietary or possessory right in property.
  2. Belief must be about rights to the property in relation to which the offence is alleged to have been committed.
  3. Belief must be held at the time of the conduct alleged to constitute the offence.
  4. Belief must actually be held by the defendant.
45
Q

Must be proved in relation to possession…

A

Merely being at premise may be insufficient for prosecution, must prove they did exercise some control over property.

46
Q

s43 Evidence Act 2006

A

Prosecution may offer propensity evidence only if the evidence has a probative value which outweighs the risk of an unfairly prejudicial effect on the defendant.

When assessing probative value, must take into account the nature of the issue in dispute.

And FENNUC

47
Q

s246(4) - title

A

Exception to the rule that you cannot get better title than the seller. Eg goods being on sold to an innocent buyer before title voided.

48
Q

Voidable title

A

Title obtained by deception, fraud, duress, or misrepresentation. Title can be voided by the original owner.

49
Q

Title can be avoided by…

A
  • Making a complaint to the Police
  • Communication with the deceiver, taking steps to bring voided title to their notice.
50
Q

Proof of two elements - theft by person in a special relationship

A
  • Received property on terms or in circumstances, affecting what the defendant may do with it or its proceeds or require the defendant to act in accordance with the requirements of another person (KNOWLEDGE)
  • That the defendant intentionally departed from the relevant obligation (INTENT)
51
Q

Forgery is complete…

A

As soon as the document is made with knowledge and intent. Use = separate offence. Complete even if document incomplete.

52
Q

False document - s255

A

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 being written by someone else.
Can make by making material alterations (ROADIE).

53
Q

Difference between forgery and altering document

A

Difference in document and intent
Forgery:
- Must be false document
- Intent to deceive (not to obtain)
Alters doc:
- Any document
- Intent to obtain by deception

54
Q

Computer system

A
  • A computer; or
  • 2 or more interconnected computers; or
  • Any communication links between computers or remote terminals or another device; or
  • 2 or more interconnected computers combined with any communication links between computer or to remote terminals or any other device; and
  • Includes any part of the items described and all related input, output, processing, storage, software, or communication facilities, and stored data.
55
Q

Actions involving accessing a computer system

A

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.

May not be physically present, can gain access through software that remotely infects computers

56
Q

Access (computer system)

A

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

57
Q

Find out from informant/complainant (credit/cheque offence)

A
  • Identity used by offender
  • Obtain descriptions of the offender
  • Property obtained
  • Vehicle used.
58
Q

Find out from the bank (credit/cheque offence)

A
  • Account holders details - full name, occupation, private and business address, phone numbers
  • Date account opened
  • Account history and how it has operated
  • Date reported missing
  • Who reported loss and how
59
Q

Category A - company offending

A

Large-scale thefts and other dishonesty offences against employers by employees (usually accountants or managers)

60
Q

Category B - company offending

A

Dishonesty committed against financial institutions by people outside the institution obtaining money (GST deception through false returns)

61
Q

Category C - company offending

A

Commercial deception committed against the public by people, who either as individuals or companies, entice people to invest money

62
Q

Category D - company offending

A

Committed by professional people in a position of trust against their clients (solicitors and accountants).

63
Q

MBIE sources of information

A
  • Registrar of companies
  • Companies office
  • Official assignee
  • Insolvency services
64
Q

Sources of assistance for investigations

A
  • Police accountants and legal officers
  • MBIE
  • Commerce Commission
  • Financial Markets Authority
  • NZ Customs
  • Liquidators and Receivers
65
Q

SFO notification

A
  • Actual/potential loss exceeding $2M
  • Great complexity
  • Great interest or concern (eg public figure)
  • SFO will determine whether it is serious or complex fraud
66
Q
A
  • Cash from stolen goods
  • Clothing or cash obtained by a credit or EFTPOS card
  • A discount
  • Avoiding or deferring payment of debt

CIB Modules (10 decks)

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