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Deception Flashcards

1
Q
  1. S/A Definition of Computer
A

Computer system means
- a Computer
- 2 or more interconnected computers
- any communication links between computers or to remote terminals or another device
- 2 or more interconnected computers combined with any communication links between computers or to remote terminals or any other device and b) includes any part of the items described in paragraph (a) and all related input, output, processing, storage, software, or communication facilities and stored data.

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2
Q
  1. M/C Robert does not have enough funds to pay for his vehicle which has been repaired by a mechanic. Robert fills out a cheque’s anyway knowing that it will bounce and hands it to the mechanic in return for his vehicle. What offence has Robert committed?
A

Obtains by deception because the mechanic now has interest in the vehicle and Robert was dishonest in getting the vehicle back as he knew the cheque would bounce.

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3
Q
  1. M/C In relation to receiving a false cheque in the mail from an associate with intent to use it when it arrives. When has the cheque’s been obtained?
A

When the cheque is sent/posted.
NOT when it arrives or when the agreement between the two parties was made.

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4
Q
  1. M/C In relation to Possession and Title, what do you get when purchasing something through Hire Purchase?
A

Possession only and not Title because you are only hiring the item temporarily then returning it to the owner/company who has Title of it.

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5
Q

5. (S/A) Explain the continuing effect in relation to a ‘Dine and Dash’

A

A representation by words or conduct may have a continuing effect. For example, entering a restaurant and ordering dinner represents that the diner will follow the normal practice and pay for a meal. If during the course of the dinner the diner decides to avoid that payment, the continuing representation will become false, and the obtaining of food will come within s240.

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6
Q

6. (S/A) What are two questions you must ask a victim who has been defrauded?

A
  1. Was the false representation believed by the victim? Did they believe it was true?
  2. Did the victim part with money as a result of that belief?
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7
Q

7. (S/A) What is the definition of false representation?

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.
Absolute certainty is not required, and wilful blindness as to the falsity of the statement will suffice.

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8
Q

8. (S/A) 3 mental elements required to be proven under section 259, Using altered or reproduced documents with intent to deceive

A

Firstly - the defendant knew the document had been altered with intent to deceive.

Secondly - intended by employment of the document to obtain by deception any property etc or cause loss to any person.

Thirdly - intention to acquire or retain the property etc or to cause loss by Deception

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9
Q

9. (S/A) Knowledge can be established by

A
  • Propensity evidence
    • Implication from the circumstances surrounding the event
    • An admission
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10
Q

10. (MCQ) Timing of intention to deceive

A

The intention to deceive is essential and must exist at the time when the deception is perpetrated. So when the credit is obtained, a later decision not to repay is insufficient.

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11
Q

11. (S/A) Two core elements of proof required under Section 220 - Theft by person in a special relationship

A
  • That he or she received the property on terms or in circumstances which to the defendant’s 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
  • That the defendant intentionally departed from the relevant obligation.
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12
Q

12. (S/A) Definition of false in material particular

A

An important, essential or relevant detail or item. A matter will be material particular if it is something important or something that matters.
Prosecution must establish either that the defendant knows his representation is false in material particular or is reckless as to whether it is false in material particular.

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13
Q

13. (S/A) Investigations into company fraud complaints will usually involve enquiries with the Ministry of Commerce. Four possible sources available there are:

A
  • Companies Office
  • Official Assignee
  • Registrar of Companies
  • Insolvency Services
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14
Q

14. (MCQ) For propensity evidence to be admissible, what is the ultimate issue?

A

R v Sharma The degree to which the probative value of the evidence outweighs the prejudicial effect.

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15
Q

15. (S/A) Bank enquiries you should make regarding accounts when investigating fraud/deception offences

A
  • Account number and date it was opened
  • Nature and amount of first deposit
  • Details of any other deposits
  • Details used when account was opened
  • Descriptions of the suspect and any associates
  • Names and addresses of the employee who opened the account and any other employees who can identify the suspect.
  • Interview the employees and obtain statements
  • Serial numbers of the cheques supplied
  • Details of the dishonoured cheques and the people or firms defrauded
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16
Q

*16. (S/A) Things a judge may consider when considering propensity evidence**

A

a) Frequency with which the acts, omissions, events or circumstances which are the subject of the evidence have occurred
(b) Connection time between the acts, omissions, events or circumstances of the evidence and those of the offence for which the defendant is being tried
(c) Extent of the similarity between the acts, omissions or events of the evidence and those of the offence for which the defendant is being tried
(d) Number of persons making allegations against the defendant that are similar to the offence for which the Defendant is being tried
(e) Whether the allegations described in paragraph (d) may be the result of collusion or suggestibility
(f) Extent to which the acts, omissions, events or circumstances of the evidence and those of the offence for which the defendant is being tried are unusual.

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17
Q

*17. (S/A) Company deception categories**

A

A) Large scale thefts and other dishonesty offences against employees by employers.
Offences are usually:
- Dishonestly taking/using document
- Theft by person in special relationship
- Altering, concealing etc.
- Forgery
- Accessing a computer for dishonest purpose
- False accounting

B) Dishonesty offences committed against financial institutions by people outside the institution. Includes GST deception against Inland Revenue by businesses who make false GST returns.
Offences are usually:
- Forgery
- False accounting
- Accessing computer for dishonest purpose.

C) Commercial deception committed against the public by people who either as individuals or through the guise of company, entice people to invest money.
Offences are usually:
- False statement by promoter
- Deception.

D) Usually offences committed by Professional people in a position of trust, such as solicitors and accountants against their clients.
Offences are usually:
- Theft by person in a special relationship
- Dishonestly taking or using documents - Used forged documents.

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18
Q

*18. (S/A) Definition/Case Law for Pecuniary Advantage**

A

Hayes v R. A pecuniary advantage is anything that enhances the accused financial position. It is that enhancement which constitutes the element ‘advantage’.

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19
Q

19. (S/A) Definition/Case Law for Document

A

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

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20
Q

20. (S/A) Case Law for Intention to Deceive

A

R v Morley. An intention to deceive must be practised at the time of the deception in order to deceive the affected party. Purposeful intent is necessary and must exist at the time of the deception.

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21
Q

21. (S/A) Case Law for Possession

A

R v Cox. Possession involves two elements. Firstly the physical element which involves actual or potential physical custody or control of the property and secondly the mental element which is a combination of both knowledge and intent. Knowledge that the thing is in their possession and an intention to exercise possession.

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22
Q

22. (S/A) Definition/Case Law for Credit

A

Fisher v Raven. Credit relates to an obligation of the debtor to pay or repay in the time given to do so by the creditor. The obligation to pay must be legally enforceable.

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23
Q

*23. (M/C) Case Law for R v Laverty**

A

R v Laverty. 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.

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24
Q

24. (S/A) Definition of Property

A

Includes any real or personal property and any estate or interest in any real or personal property, money, electricity and debt and anything in action or any other right or interest.

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25
Q

25. (S/A) Definition of Deception

A

A) A false representation made orally, documentary or by conduct where the person making the representation intends to deceive any other person and:
- Knows that it is false in a material particular or
- Is reckless as to whether it is false in a material particular

B) An omission to disclose a material particular, with intent to deceive any person, in circumstances where there is a duty to disclose it.

C) A fraudulent device, trick or stratagem used with intent to deceive any person.

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26
Q

26. (M/C) Definition of Debt

A

Money owing from one person to another.

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27
Q

27. (M/C) Definition of Liability

A

Legally enforceable financial obligation to pay.

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28
Q

28. Takes or Obtains a Document
Section 228(1)(a), Crimes Act 1961

A
  • With intent to obtain any property OR service OR pecuniary advantage OR valuable consideration
  • Dishonestly
  • And without claim of right
  • Takes OR Obtains any document
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29
Q

29. Uses or Attempts to use a Document
Section 228(1)(b), Crimes Act 1961

A
  • With intent to obtain any property OR service OR pecuniary advantage OR valuable consideration
  • Dishonestly
  • And without claim of right
  • Uses OR Attempts to use any document
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30
Q

30. Obtaining by Deception (a)
Section 240(1)(a), Crimes Act 1961

A
  • By any deception
  • And without claim of right
  • Obtains possession of OR control over, any property OR any privilege OR service OR pecuniary advantage OR benefit OR valuable consideration
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31
Q

31. Obtaining by Deception (b)
Section 240(1)(b), Crimes Act 1961

A
  • By any deception
  • And without claim of right
  • In incurring any debt or liability
  • Obtains credit
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32
Q

32. Causing loss by Deception (d)
Section 240(1)(d), Crimes Act 1961

A
  • By any deception
  • And without claim of right
  • Causes loss to any person
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33
Q

33. Accessing Computer System for Dishonest Purpose (1)(a)
Section 249(1)(a), Crimes Act 1961

A
  • Directly OR Indirectly
  • Accesses any computer system
  • Dishonestly OR by deception
  • And without claim of right
  • Obtains any property OR privilege OR service OR pecuniary advantage OR benefit OR valuable consideration
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34
Q

34. Accessing Computer System for Dishonest Purpose (1)(b)
Section 249(1)(b), Crimes Act 1961

A
  • Directly OR indirectly
  • Accesses any computer system
  • Dishonestly OR by deception
  • And without claim of right
  • Causes loss to any other person
35
Q

35. Accessing Computer System for Dishonest Purpose (2)(a)
Section 249(2)(a), Crimes Act 1961

A
  • Directly OR indirectly
  • Accesses any computer system with intent
  • Dishonestly OR by deception
  • And without claim of right
  • To obtain any property OR privilege OR service OR pecuniary advantage OR benefit OR valuable consideration
36
Q

36. Accessing Computer System for Dishonest Purpose (2)(b)
Section 249(2)(b), Crimes Act 1961

A
  • Directly OR indirectly
  • Accesses any computer system with intent
  • Dishonestly OR by deception
  • And without claim of right
  • To cause loss to any other person
37
Q

37. Obtain

A

Means obtain or retain for himself, herself, or any other person.

38
Q

38. Property

A

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.

39
Q

39. Service

A

Service is limited to financial or economic value and excludes privileges or benefits.

40
Q

40. Pecuniary Advantage

A

Hayes v R. Anything that enhances the accused financial position. It’s that enhancement which constitutes the element of advantage.

41
Q

41. Valuable Consideration

A

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

42
Q

42. Dishonesty

A

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.

43
Q

43. Claim of Right

A

In relation to any act, means a belief at the time of the act 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 which the offence is alleged to have been committed.

44
Q

44. Document

A

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

45
Q

45. Deception

A

a) A false representation, whether oral, documentary, or by conduct, where the person making the representation intends to deceive any other person and
- knows that it is false in a material particular or;
- 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.

46
Q

46. Intent

A

In a criminal law context, there are two specific types of intention in an offence. Firstly, there must be an intention to commit the act and secondly, an intention to get a specific result.

47
Q

47. Material Particular

A

An important, essential, or relevant detail or item. A matter will be a material particular if it is something important or something that matters.

48
Q

48. Device

A

A plan, scheme, or trick.

49
Q

49. Trick

A

An action or scheme undertaken to fool, outwit, or deceive.

50
Q

50. Stratagem

A

A cunning plan or scheme especially for deceiving an enemy, or trickery.

51
Q

51. Debt

A

Debt means money owing from one person to another.

52
Q

52. Liability

A

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

53
Q

53. Loss

A

Is likely to include financial and property losses and may also encompass emotional, cultural and intellectual losses.

54
Q

54. Access

A

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.

55
Q

55. Authorisation

A

For the purposes of offences involving computers, 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.

56
Q

56. Computer system

A

Means:
- a computer; or 2 or more interconnected computers; or
- any communication links between computers or to remote terminals or another device; or
- 2 or more interconnected computers combined with any communication links between computers or to remote terminals or any other device; and all parts and related input, output, processing, storage, software, or communication facilities, and stored data.

57
Q

57. Benefits

A

Special right or advantage.

58
Q

58. Credit

A

Fisher v Raven. Refers to the obligation on the debtor to pay or repay and the time given for them to do so by the creditor. The obligation to pay must be legally enforceable.

59
Q

59. Person

A

Gender neutral. Proven by judicial notice or circumstantial evidence.

60
Q

60. Hayes v R (Pecuniary Advantage)

A

Anything that enhances the accused’s financial position. It’s that enhancement which constitutes the element ‘advantage’.

61
Q

61. Hayes v R (Belief for Dishonesty)

A

The question is whether the belief is actually held, not whether that belief is reasonable. Reasonableness may be used as evidence for whether the belief was actually held.

62
Q

62. R v Misic

A

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

63
Q

63. Hayes v R (Uses or attempts to use)

A

An unsuccessful use of a document is as much use as a successful one. Because the use does not have to be successful it may be difficult to draw a clear line between use and attempted use.

64
Q

64. R v Morley (Intent to deceive)

A

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.

65
Q

65. Cameron v R

A

Recklessness is established if:
- The defendant recognised there was a real possibility that their actions would bring about the proscribed result
and/or
- That the proscribed circumstances existed and having regard to that risk those actions were unreasonable.

66
Q

66. R v Morley (Representations)

A

Representations must relate to a statement of existing fact rather than a statement of future intention.

67
Q

67. R v Cox (Possession)

A

Possession involves two elements. First, the physical element is actual or potential physical custody or control. Secondly, the mental element is a combination of knowledge and intention. Knowledge that something is in his possession and an intention to exercise possession.

68
Q

68. Fisher v Raven

A

Refers to the obligation on the debtor to pay or repay, in the time given to do so by the creditor. The obligation to pay must be legally enforceable.

69
Q

69. R v Laverty

A

Prosecution must prove that the person parting with the property was induced to do so by the false representation made.

70
Q

70. R v McKay

A

It was held that the credit had been obtained upon booking in but at that time the accused did not possess an intent to deceive.

71
Q

71. Four Beliefs for claim of right

A
  • A belief in a proprietary or possessory right in property.
  • The belief must be about rights to the property in relation to which the offence has been committed.
  • The belief must be held at the time of the conduct.
  • The belief must be held by the defendant but does not have to be reasonable and may be based on ignorance or mistake.
72
Q

72. What is required to be proven for Deception

A
  • 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 material particular OR was reckless whether it was false in material particular.
73
Q

73. A false representation can be communicated by either:

A
  • Orally (Claiming to own goods that are actually subject to hire purchase)
  • By Conduct (Representing oneself to be a collector for charity)
  • Documentary (Presenting a valueless cheque)
74
Q

74. Distinction between theft and obtains by Deception

A

The difference lies with the concepts of possession and title or ownership. If someone has gained something by deception, then the owner has given them ownership of the thing freely although under deception. If something has been stolen it has been taken without permission therefore the thief has possession but not title or ownership.

75
Q

75. What is necessary to avoid title

A
  • Communicate with the buyer
  • Take all other possible steps to bring it to the buyer’s notice, e.g. by writing a letter, text, phone call, etc.
  • Advise the police
76
Q

76. Section 246(4) – Receiving after restoration to owner

A

The effect of this section is that a person who in certain circumstances may be a receiver, cannot be convicted of receiving from a fraudulent offender who has a voidable title to goods dishonestly obtained by means of a deception.

77
Q

77. When is someone entitled to good title?

A

If an innocent purchaser buys goods obtained by a deception before title has been avoided, then he or she is entitled to a good title.

78
Q

78. Under Section 256. Forgery, such alteration might involve:

A
  • Additions
  • Insertions
  • Deletions
  • Obliteration
  • Erasures
  • Removal of material or otherwise
79
Q

79. Specified Intent for Forgery

A

The prosecution must prove that at the time of the alleged act, the defendant knowing that the document was false, had intended either:
- To use the false document to obtain or
- That the false document be used or acted on as genuine

80
Q

80. Knowledge required for Using Forged Documents

A

You must prove that the defendant knew the document was a forgery at the time of the physical act of using, dealing with or acting upon it.
To prove that the document is forgery you must prove that:
- The document was false.
- The user knew that the document had been made with the knowledge and intent required under section 256 of the Crimes Act 1961.

81
Q

81. Forgery vs Altering Etc

A

In the offence of altering etc you must prove that the offender intended to obtain by deception.
In a charge of forgery the document must be a false document.
With forgery an intent to deceive only is required not an intent to obtain by deception.

82
Q

82. Distinction between Sections 250(1) & 250(2) – Damaging or Interfering with Computer System

A

(1) - Criminalises the destruction, damaging or altering of a computer system that the defendant knows or ought to know would endanger life.
(2) - Makes it an offence to damage etc any computer system and adds the requirement that the defendant must act without authority with the knowledge that they are not authorised or are reckless whether they are authorised.
(2) (b) - Is directed at instances where the defendant has so arranged matters that the victim’s own operation of his or her computer system, or the acts of third parties will cause damage to the victim’s computer system.

83
Q

83. A false Document includes a document of which the whole or any material part purports to be made by who?

A
  • Any person who did not make it
  • By a fictitious person
84
Q

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

A

Propensity evidence, 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.

Deception (2 decks)

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