Deception Flashcards
Hays v R (defendants financial position)
a pecuniary advantage is anything that enhances the accused’s financial position. it is that enhancement which constitues the element of advantage.
Valuable consideration means
money or moneys worth.
Hays v R (belief/ reasonable)
the question is whether the belief is actually hled, not whether that belief is reasonable. however reasonableness may be relevant as evidence on the issue of whether the belief was actually held.
R v Misic
essentually a document is a thing which provides evidence or information or serves as a record
Hays r V (successful/ unsuccessful use of a document)
an unsuccessful use of a document is as much use as a successful one.
An unsuccessful use does not equal an attempted use.
The concept of attempt relates to use, not to the ultimate obtaining of a pecuniary advantange (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.
deception defined
(A)a false representation, whether oral, documentary, or by conduct where the person making the representation intends to deceive any other person and
know that it is false in a material particular
or
is reckless as to whether it is false in a material particular.
(B) ommission to disclose information when there is a duty to disclose it, with intent to deceive any person.
(C) a fraudulant device, trick, stretegy used with intent to decieve any person.
definition of representation
must be capable of being false so it must contain a proposition of fact.
false representation definition
representation must be false and defendant must know/believe/ be reckless as to whether information is false.
Absolute certainty not required, wilful blindness as to falsity it sufficient.
What must you prove- deception
they had an intent to deceive.
there was a representation by the defendant.
that representation was false by either…
knowing it to be false in a material particular
or
was reckless as to whether it was false in a material particular.
R v MORELY (intent go deceive)
an intention to deceive requires that the deception is practised in order to deceive the affect party.
purposeful intent is neccessary and must exist at the time of the deception
Cameron v R
reckless is established if they recognise that there was a real possilbility that…
Their actions would bring about a prescribed result… and having regard to that risk those actions were unreasonable.
intent
deliberate act, specific outcome.
orally (example)
verbally claiming to own goods that are subject to a hire purchase agreement
by conduct (example)
representing oneself as a collector for a charity by appearing to carry an official collection bag.
documentary (example)
presenting a false certificate of qualification.
R V MORELY (representation)
representations must relate to a statement of existing fact, rather than a statement of future intention
knowledge means (simester and brookes)
knowing or correctly believing.
you may beleive something wrongly but you cannot know somthing that is false
knowledge is established by
an admission
implication from the circumstances surrounding the event
propensity evidence
material particular definition
important, essential, relevant detail or item.
IE something important or something that matters.
duty to disclose is often seen where?
in civil law, eg, parties are in a contractual relationship.
device definition
a plan scheme or trick
trick definition
an action or scheme undertaken to fool outwit or deceive
strategem
a cunning plan or scheme especially for deceiving an enemy or trickery.
what is the difference between theft and deception
in theft the property is obtained without the owners permission and title is not passed on.
what is title?
the legal right to property
R v COX
possession involves two elements.
the physical element -actual or potential physical custody or control.
mental element- the combination of knowledge and intention. (awareness that it is in their possession and intention to exercise possession)
what is a lien
a right to keep possession of property belonging to another person until a debt owed by that person is paid off
is it sufficient to charge someone with dishonestly obtained property, if you find property at their premises?
no, you need to prove that they had exercised control over the property.
what must you prove in obtaining credit by deception
- they deceived wocor
- they incurred any debt or liability
- obtained credit
in obtaining credit by deception is there any offence if the contract is void or the contract is illegal?
there is no offence, the debt or liability must be legally enforceable.
Fisher v Raven
credit refers to the obligation
on the debtor to pay or repay
and the time they are given to do so by the creditor.
credit does not extend to an obligation
to supply goods or services.
examples of situations where credit may be obtained
- extending existing overdraft facilities.
- obtaining money on a loan.
- renting/leasing a dwelling
delayed or non payment of debt
it is not an offence to simply delay payment or to be unable to pay due to unforseen circumstances as this lacks intent
R v Mackay
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 decieve.
payments witheld- goods and services
it is not an offence to withhold payment due to dissatisfaction in service/goods
hire purchases obtained under deception
goods obtained on hire purchase by a false representation = deception
if the offender later sells the goods to another the offender commits theft by conversion.
the offender never received title of those good fraudulently obtained through the hire purchase.
induce meaning
to pursuade, bring about, give rise to.
what needs to be proven for ‘inducement’
- the victim believed the false representation.
- their belief resulted in them parting with their money.
R v Laverty
it is neccessary for the prosecution
to prove that the person
parting with the property
was induced to do so
by the false representation made.
what must the defendant ‘cause’ (altering documents capable of causing pecuniary advantage)
Their act must have had a substantial and operative influence in causing loss
altering documents capable of causing pecuniary advantage possible fraudulant proccesses
accept- receive something
alter- change in charactor or composition
deliver over- to surrender up someone or something.
endorse- is to write or sign a document
execute- put a course of action into effect
thing meaning
any tangible object
does the person who suffered the loss have to be the person deceived?
no
person means
real people, companies, organisations
what is the punishment for causing loss (of value) over $1000
7 rs imprisonment
what is the punishment for causing loss (of value) less than $500
3 months imprisonment
what is the punishment for causing loss (of value) over $500 (not over $1000)
1 year imprisonment
can you use propensity evidence for causing loss by deception?
yes evidence showing a person has a propensity to act in a certain way or have a particular state of mind may be admissible
who can you offer propensity evidence about?
a party may provide propensity evidence about anyone in a civil or criminal trial
complainant’s and propensity evidence (sex)
you cannot provide propensity evidence about a complainant in a sexual case in relation to the complainants sexual experiences with other people other than the defendant.
when can the prosecution offer propensity evidence about a defendant?
when it has probative value in relation to an issue in dispute.
it must outweight the risk of having an unfair prejudicial effect on the defendant.
what matters might the judge consider when assessing the probative value of propensity evidence?
a) frequency of acts/circumstancss/ommissions occurred.
b) connection in time between previous acts/circumstances/ ommissions and the offence in which they are being tried.
c) similarity between previous acts/circumstances/ ommissions and the offence in which they are being tried.
d) the number of persons who have made allegations that are the same/similar to the offence in which they are being tried.
e) whether the previous allegations were the result of collusion/ suggestibility.
f) are previous acts/circumstances/ommissions and the offence in which they are being tried for unusual?
what should the judge consider when assessing the prejudicial effect of evidence against a defendant?
a) will it unfairly turn the fact finder against the defendant.
b) will it result in the fact finder putting disproprtionate weight on other (propensity) evidence against the defendant
what is considered relevant evidence?
anything that has a tendancy to prove or disprove anything that is of consequence to the determination of the proceeding.
can title be passed on?
a seller who has no rights of ownership to goods and who acts without the owners authority to sell cannot pass title over to the buyer, therefore the buyer does not have title over that property.
Title can only be passed on with authority of the owner, regardless of whether the title was passed over legitimately or by decpetion.
voidable title
a person who has obtained property via deception/fraud/duress/misrepresentation has voidable title.
Title can be voided by the seller (the person defrauded).
However until the title is voided, the defrauder has (voidable) title and can confer good title (legitimite) onto anyone who aquires the goods from them.
The next purchaser then has good title. (not voidable title)
Upon conviction, does the property return to the original owner if it has been sold with good title to a new owner?
No, it title was not voided before the sale then that property remains with the new owner as they have good title over that property.
Police returning stolen property
Police should only implement acts in search/ seizure of property for evidential purposes and not to assist in civil matters.
is it an offence to receive property with a voided title?
if the original owner voids the title, leaving the thief/fraudster in possession of the property (no title to the property), and the thief/fraudster then sells the property to someone else, that person may be liable for recieving stolen property.
Consider though if this person was innocent and received the goods in good/bad faith.
who holds title during a hire purchase?
the owner holds title until the full amount is paid as per the hire purchase agreement.
The purchaser has possession only.
what is another term for title?
‘property in’
what two concepts differentiate theft and obtaining by deception?
ownership. (obtains by deception gives you ownership and possession)
possession. (theft gives you possession only)
S220 CA theft by person in special relationship
the defendant intentionally
failed to account to the owner regarding the property recevied or proceeds of property received.
dealth with the property or proceeds in a way that was not in accordance with requirements of owner of the property.
two core elements of proof is required regarding S220 CA- theft by person in special relationship
- defendant received property knowing terms/obliguations existed in which they received that property.
- defendant intentionally departed from those terms/obliguations.
what is the punishement for S220 -theft by person in special relationship
7 years.
S256- Forgery
makes
a false document
with intent
to obtain
benifit/pec adv/ privilege/property/ service/ valuable consideration
must the defendant use the document for there to be an offence of forgery?
no they do not need to use the document.
they must intent to use it.
know the document is false.
what is a false document
something that…
purports being made by someone else.
on behalf of someone else.
endorsed by someone else.
A reproduction (whole or part of a doc)
A material part of the doc which has been altered by addition, deletion, obliteration, erasure, removal
is a copy of a forged document in itself a forgery?
no, a copy of a forged document is not a forgery, only the original forged document (claiming to be real) is a forgery.
alterations to a forged document might involve…
roadie
removal of material or otherwise.
obliterations
additions.
deletions
insertions
erasures
can you make a false document out of a genuine document
yes, altering a genuine document can create a false document.
when is forgery complete?
as soon as the document is made with knowledge and intent.
the document need not be a ‘completed’ forgery.
intent required for forgery
to use the false document in place of a real document to obtain something.
it is not enough that the document be false and that the maker knew it was false.
you need to prove that the maker intended to deceive
what is the punishment for forgery?
10 years inprisonment
S257 CA- using forged documents
knowing a document was forged.
uses the document
to obtain
any property, privilege, service, pecuniary advantage, benifit, valuable consideration
or uses /deals with document as if it were genuine.
or causes any other person to use/deal with the document as it were genuine.
what is the punishemnt for S257 - uses a forged document?
10 years imprisonment
knowledge- S257 uses forged document
you must prove they knew the document was false.
it was in made with the knoweldge and intent required under S256.
S258 CA- altering or reproducing documents
with intent
to obtain
by deception
any property, privilege, service, pecuniary advantage, benifit, valuable consideration
or cause loss to any other person by
altering, concealing, destroying
any document
alteration means
changed in some manner
conceal means
to hide
deny its existance
withold.
destruction means
to end the existance of
reproduction means
produce a copy/ representation/ imitation of.
how might a defendant ‘cause’ a document to be altered/destroyed/ concealed…
by arranging for another person to alter, conceal, destroy the document.
use a computer programme
or other device to alter, conceal, destroy the document
mental elements of the offence S258 CA- altering or reproducing documents
either obtain by deception
or
to cause loss
does destroying a document constitute causing loss? (S258 CA- altering or reproducing documents)
if they destroyed the document with intent of depriving another person from gaining that documents benifit/value then yes it constitutes causing loss.
what is the difference between forgery and altering / reproducing a document?
with forgery there only needs to be intent to deceive, not an intent to obtain by deception.
with altering/reproducing a document, there must be intent to obtain by deception.
to charge with forgery the document must also meet the definition of a false document.
an altered/ reproduced document does not automatically meet the definition of false.
what is the penalty for S258 CA- altering or reproducing documents
10 years imprisonment
what is the penalty for S259 CA- using altered or reproduced documents with intent to deceive
10 years imprisonment
what must the prosecution prove for S259 CA- using altered or reproduced documents with intent to deceive
that the document had previously been altered with intent to deceive. you do not need to identify the person who originally altered it.
mental element S259 CA- using altered or reproduced documents with intent to deceive (prove three things)
- The document had been altered with intent to deceive.
- intended to use / have the document be used by someone else to obtain B P P P S VC.
- intention to acquire/ retain property/ cause loss of property.
what is credit
legally enforcable obliguation on the debter to pay or repay in an agreed timeframe.
(does not include supply of goods and services)
what is a material alteration (of a document?)
any material alteration that increases the value or negotiability of a document or instument.
obtain meaning
obtain or retain for self or others.
representations can be made in one of three ways….
orally
documentary.
by conduct
how can you void title?
- clear communication with the defendant by all ways possible.
- advising police of deception
what does access (a computer) mean
communicate with
instruct
make use of any resources of the computer system.
receive data from.
store data in
what does authorisation (computers) mean?
an authorisation conferred on a person by or under an enactment or rule of law, or by an order of a court or judicial process.
what is a computer system?
a single computer
a network of computers
a computer connected to the internet with the potenital to connect to millions of networked computers.
all related input/output/ processing/storage/software/ communication facilities/stored data.
S249 CA- accessing a computer system for dishonest purposes
directly
or indirectly
accesses any computer system
and dishonestly or by deception
and WOCOR
obtains any property, privilege, service ,pecuniary advantage, benifit, valuable consideration
or causes any loss to any person
penalty for S249 CA- accessing a computer system for dishonest purposes
7 years imprisonment
what is the difference between S249(1) and 249(2) CA- accessing a computer system for dishonest purposes?
249(1) person accesses a computer system and obtains something/causes loss.
249(2) person accesses a computer system with intent to obtain / cause loss regardless of the actual outcome.
does the victim need to be aware of the loss at the time of losing?
no. they need not be aware at the time.
S250(1)- damaging or interfering with a computer system
intentionally/recklessly
destroys, damages, alters any computer system
if they know
or ought to know that danger to life
is likely to ensue.
what is the penalty for S250- damaging or interfering with a computer system
10 years imprisonment
S250(2)- damaging or interfering with a computer system
damages any computer system without authority, knowing they have no authority.
S250(2)(b)- damaging or interfering with a computer system
arranges for the victims own operation of their computer system or the acts of third parties to cause damage to the victims computer system
S252 CA- accessing computer system without authorisation
intentionally gains access, directly, or indirectly to a computer system without authority.
is it an offence to access a computer system (with authority) if you access it for reasons other than the one/s you have authority for?
it is not an offence unless you are accessing it for dishonest purposes.
does a person need to be physically present to access a computer system?
no this can be done remotely.
dishonestly taking or using a document
S228(1)(a) Crimes Act 1961
ELEMENTS
Dishonestly
WOCOR
Takes or obtains
any document
with intent
to obtain
any
property/ service/ pecuniary advantage/ valuable consideration
Dishonestly
DEF: an act done or omitted without belief that there was express or implied consent or authority to do so.
Claim of right
DEF: belief at the time of the act in proprietary or possessory right to property though that beleif may be based on ignorance or mistake or on any matter of law.
Takes
DEF: property moved or caused to be moved by the offender.
Obtains:
DEF: obtains or retains for self or others.
Document
DEF: includes the following but is not limited to…
a piece of written, printed, or electronic matter that provides information or evidence or that serves as an official record.
CL: R V MISIC- essentially a document is a thing which provides evidence or information or serves as a record.
with intent
DEF: deliberate act, specific outcome.
CL: R V COLLISTER
Intent inferred by circumstance
to obtain
(as above)
Any property
DEF: real and personal property, debt, electricity, estate ,money, any thing in action, and any other right or interest
OR
Service
CL: R v CLARA
service is limited to financial or economic value and excludes privileges or benifits
OR
Pecuniary advantage
CL: HAYES r V
a pecuniary advantage is anything that enhances the accused’s financial position.
it is that enhancement which constitutes the element of advantage.
OR
Valuable consideration
CL: HAYES r V
Money or moneys worth.
dishonestly taking or using a document
S228(1)(b) Crimes Act 1961
ELEMENTS
Dishonestly
WOCOR
Uses/ attempts to use
any document
with intent
to obtain
any
property/ service/ pecuniary advantage/ valuable consideration
Dishonestly
DEF: an act done or omitted without belief that there was express or implied consent or authority to do so.
Claim of right
DEF: belief at the time of the act in proprietary or possessory right to property though that beleif may be based on ignorance or mistake or on any matter of law.
HAYES R V
The question is whether the belief is actually held, not whether that belief was reasonable, though reasonableness may be relevant as evidence on the issue as to whether the beleif was actually held.
Uses
DEF: use can be a single action or a continued action.
CL: HAYES r V
an unsuccessful use of a document is as much a use as a successful one.
An unsuccessful use most not be aquated conceptually with an attempted one.
The concept of attempt relates to use not to the ultimate obtaining.
Because the use does not need to be succuessful it may be difficult to draw a clear line between use and attempted use.
Attempts to use
DEF: ATTEMPTS
does or omits an act
for the purpose
of accomplishing his object
is guilty of an attempt
whether or not in the circumstances
it was possible to commit that offence
CL: HAYES r V
an unsuccessful use of a document is as much a use as a successful one.
An unsuccessful use most not be aquated conceptually with an attempted one.
The concept of attempt relates to use not to the ultimate obtaining.
The concept of attempt relates to use not to the ultimate obtaining.
Because the use does not need to be succuessful it may be difficult to draw a clear line between use and attempted use.
Document
DEF: includes the following but is not limited to…
a piece of written, printed, or electronic matter that provides information or evidence or that serves as an official record.
CL: R V MISIC- essentially a document is a thing which provides evidence or information or serves as a record.
with intent
DEF: deliberate act, specific outcome.
CL: R V COLLISTER
Intent inferred by circumstance
Obtains:
DEF: obtains or retains for self or others.
Any property
DEF: real and personal property, any estate or interest in any real or personal property, money, electricity, any debt, any thing in action, and any other right or interest
OR
Service
CL: R v CLARA
service is limited to financial or economic value and excludes privileges or benifits
OR
Pecuniary advantage
CL: HAYES r V
a pecuniary advantage is anything that enhances the accused’s financial position.
it is that enhancement which constitutes the element of advantage.
OR
Valuable consideration
CL: HAYES r V
Money or moneys worth.
obtains by deception/ causing loss by deception
240 (1)(a) Crimes act 1961
ELEMENTS
By deception
WOCOR
obtains
ownership
or
possession of
or
control over
property/ service/ pecuniary advantage/ valuable consideration
By any deception
DEF: a false representation whether oral, documentary or by conduct intended to deceive any person, knowing that it is false in a material way or is reckless as to whether it is false in a material way.
or an ommission of information when there was an intent to disclose that information.
or Use or a fraudulant device, trick, strategem.
CL: R V MORELY an intention to deceive requires that the deception is practised in order to deceive the effected party. Purposeful intent is neccessary and must exist at the time of the deception.
Claim of right
DEF: belief at the time of the act in proprietary or possessory right to property though that beleif may be based on ignorance or mistake or on any matter of law.
Obtains:
DEF: obtains or retains for self or others.
Ownership
DEF: obtains ownership andntitle of the goods.
or
Possession of
CL: R v COX possession involves two elements.
The physical element- actual or potential custody/ control.
The second is mental- a combination of knowledge and intent.
or
Control over
DEF: the power of directing command.
Any property
DEF: real and personal property, any estate or interest in any real or personal property, money, electricity, any debt, any thing in action, and any other right or interest
OR
Service
CL: R v CLARA
service is limited to financial or economic value and excludes privileges or benifits
OR
Pecuniary advantage
CL: HAYES r V
a pecuniary advantage is anything that enhances the accused’s financial position.
it is that enhancement which constitutes the element of advantage.
OR
Valuable consideration
CL: HAYES r V
Money or moneys worth.
obtains by deception/ causing loss by deception
240 (1)(b) Crimes act 1961
ELEMENTS
By deception
WOCOR
in incurring any debt of liability
obtains
credit
By any deception
DEF: a false representation whether oral, documentary or by conduct intended to deceive any person, knowing that it is false in a material way or is reckless as to whether it is false in a material way.
or an ommission of information when there was an intent to disclose that information.
or Use or a fraudulant device, trick, strategem.
CL: R V MORELY an intention to deceive requires that the deception is practised in order to deceive the effected party. Purposeful intent is neccessary and must exist at the time of the deception.
Claim of right
DEF: belief at the time of the act in proprietary or possessory right to property though that beleif may be based on ignorance or mistake or on any matter of law.
In incurring debt or liability
Debt
DEF: monwy owing from one person to another.
Liability
DEF: legally enforceable financial obligation.
CL: Simester and Brookbanks the debt or liability must be legally enforceable.
Obtains:
DEF: obtains or retains for self or others.
Credit
DEF: the obliguation on the debtor to pay or repay and the time given for them to do so by the creditor.
CL: Fisher V Raven
credit refers to the obligation
on the debtor to pay or repay
and the time they are given to do so by the creditor.
credit does not extend to an obligation
to supply goods or services.
obtains by deception/ causing loss by deception
240 (1)(c) Crimes act 1961
(Won’t be a liability)
ELEMENTS
By deception
WOCOR
induces/causes
any other person
to
accept/alter/deliver/destroy/endorse/execute/make
any document
or thing capable of being used to derive a pecuniary advantage.
obtains by deception/ causing loss by deception
240 (1)(d) Crimes act 1961
ELEMENTS
By any deception
WOCOR
Causes loss to any other person
By any deception
DEF: a false representation whether oral, documentary or by conduct intended to deceive any person, knowing that it is false in a material way or is reckless as to whether it is false in a material way.
or an ommission of information when there was an intent to disclose that information.
or Use or a fraudulant device, trick, strategem.r
CL: R V MORELY an intention to deceive requires that the deception is practised in order to deceive the effected party. Purposeful intent is neccessary and must exist at the time of the deception.
Claim of right
DEF: belief at the time of the act in proprietary or possessory right to property though that beleif may be based on ignorance or mistake or on any matter of law.
Loss
DEF: financial detriment to the victim.
CL: Morely v R- the loss alleged by the victim must have been induced by or caused in reliance upon the deception but the decepetion need not be the only operative factor so long as it played a material part in the loss.
To any other person
DEF: someone other than the defendant (real people, companies, organisations)
what kind of information does a bank hold on customers?
‐ Account statements and transaction records;
‐ Account application form(s) and supporting documents;
‐ Application(s) for finance and supporting documents;
‐ Guarantee and Trust Deed documents;
‐ Bank account voucher(s) and traces to electronic transactions;
‐ Credit and Debit card records;
‐ International transaction records;
‐ Insurance documents including but not limited to life, house, motor vehicle, boat, contents, rental, travel, business, indemnity
and travel
‐ Diary / customer notes / AML notes;
‐ Power of Attorney (POA) forms;
‐ CCTV images and video footage;
‐ Safe deposit facility details;
‐ Mobile online/Internet and phone banking details including Internet Protocol (IP) addresses, phone numbers, account activity
and user details;
‐ Un‐redacted joint and third‐party account holder details as shown on account statements and other documentation
‐ The above information for any other accounts that they are signatory to, held solely or jointly, including any company accounts,
and any accounts linked to anomalies of their names.
The following places should be checked for laundered assets
‐ Banks ‐ including accounts and mortgages
‐ Land Information New Zealand
‐ The Bonus Bonds Centre
‐ The TAB and Casinos
‐ Local council rates and electricity departments
‐ The Companies Office
‐ Debt collection agencies, for credit checks
‐ Work and Income New Zealand
‐ NIA for vehicles.
what is a money mule
someone who knowlingly/unknowingly moves proceeds of crime through their accounts on behalf of offenders
when should the serious fraud office be notified
for all bribery and corruption investigations
fraud complaints with actual /potential loss of $2M+
All fraud complaints where the facts, law or evidence is of great complexity.
when do police notify the serious fraud office?
police must notify SFO when they have been authorised to do so by the district commander.
if an arrest is made on behalf of FSO, can you bail the offender?
unless SFO requested bail, the offender must be held in custody until their court hearing.
What is propensity evidence
Evidence that speaks to a persons tendency to act or think in a certain way.
Who can police contact in relation to serious fraud investigations
Customs,
Commerse Commission
DIA
SFO
