Deception Flashcards
What was held in R V HARNEY?
Foresight of dangerous consequences that could well occur together with intent to continue the course of conduct regardless of the risk
John purchases property with a valueless cheque on Tuesday. John sells it to Mike the local pawn shop on wednesday, Mike sells it to Jane the same day. On thursday the valueless cheque is dishonoured and reported to Police. Who will have legal title of the property? Or who will take possession of the property?
Jane, because title voided after her genuine purchase
What was held in R V MISIC?
Essentially a document is a thing which provides evidence or information or serves as a record
How can title be voided?
Communication with the person, the taking of all possible steps to bring it to notice eg writing a letter, text, phone call etc.
By advising Police the item was obtained by fraud.
A person who has property on hire purchase has?
Possession only (until full amount paid)
What is required to prove the inducement?
The false representation was believed and that it was the consequence of the belief that the victim parted with with his or her money
What is valuable consideration?
Issuing a false invoice to receive payment for goods never supplied
John finds a gym membership card for the local gym / swimming pool, its a hot day so John goes to the pool and uses the card to gain entry without paying. What is John’s liability and what has John obtained by using the membership?
240(1)(a) obtains by deception.
A pecuniary advantage
Both possession and title will pass on to a bona fide or innocent purchaser?
When the property is brought by a third party from a person who obtained it by deception before the original owner voids the title
A person can only be charged under S249(1) in relation to accessing a computer system for dishonest purpose when?
He/she actually obtained any property or privilege or service or pecuniary advantage, benefit, valuable consideration or loss to any person
In relation to the offence of obtaining credit by deception under 240(1)1b) CA61 which is incorrect?
Under the definition of obtain in S217 CA61 it is not sufficient that the accussed obtained the extension of credit to another person
HAYES V R defined pecuniary advantage as?
The pecuniary advantage is anything that enhances the accused position. It is that enhancement which constitutes the element of advantage
A senior executive of a company who is acting on behalf of the company commits a series of deception causing other companies to sustain financial losses. In these circumstances any criminal liabilities result with?
Both the senior executive and the company as the actions of the executive are said to be the actions and state of mind of the company
The term credit means?
Refers to the obligation on the debtor to pay or repay, and the time given for them to do so by the creditor
What was held in R V CROOKS in relation to knowledge?
The accused may also be liable if their conduct has amounted to “wilful blindness” and thus equated to knowledge (conduct of the accused amounting to putting their head in the sand)
A person can be said to be in control of a thing if?
It is proved that the accused did in fact exercise some control over the thing
For propensity evidence to be admissible the ultimate issue is?
R V SHARMA the ultimate issue is the degree to which the probative value of the evidence outweighs the prejudicial effect
The term valuable consideration means that a person?
HAYES V R a valuable consideration is “anything capable of being valuable” whether of a monetry kind or of any other kind; in short money or money’s worth
Roberts car is in the local garage having been repaired. Robert could not afford to pay for the repair before getting the car back. Knowing that he does not have the funds in his account to cover the cost of repairs he hands over a cheque to the repairer and received the car in return. He drives home
Robert has obtained the car by deception as someone else has a special propriety or interest in it
Claim of right in relation to any act means?
A belief at the time in a proprietry or possessory right in property
Brown booked into a motel and on checking in he offered to pay in advance. He was told to pay the account in the morning. He left without checking out or paying. What is Browns liability?
R V McKAY on appeal it was held that the credit had been obtained on booking in but at that time the accused did not possess the intent to deceive. No offence committed
For a charge under S240(1)(b) CA61 (obtaining credit by deception) the obligation to repay means?
The obligation to repay must be a legally enforceable one
A fraudulent device, trick or stratagem used with intent to deceive any person must be?
Fraudulent, meaning dishonest in the traditional sense
False documents includes a document of which the whole or any material part purports to be made?
By a person who did not authorise its making or by a fictitious person
The serious fraud office investigates serious or complex fraud complaints. An investigator from that office may only make an arrest of a fraud suspect?
Under no circumstances as the investigator does not have powers to arrest
What was held in R V HARNEY?
Forsight of the dangerous consequences that could well happen together with the intent to continue the course of conduct regardless of the risk
John purchases property with a valueless cheque on tuesday. John sells it to mike at the local pawn shop on wednesday. Mike sells it to jane the same day. On thursday the valueless cheque is dishonoured and reported to the police. Who will have legal title of the property or who will take possession of the property?
Jane, because title voided after her genuine purchase
What was held in R V MISIC?
Essentially a document is a thing which provides evidence or information or serves as a record
Can title be voided?
Yes. Communication with the person, the taking of all possible steps to bring it to their notice eg by writting a letter, text, phone call etc or by advising police that the item was obtained by fraud
A person who has property on hire purchase has?
Possession only (until full amount is paid)
What is required to prove inducement?
That the false representation was believed and that it was the consequence of the belief that the victim parted with his or her money
What is a valuable consideration?
HAYES V R
Monetary payment in return for goods and services
Goods given in return for services provided
Issuing a false invoice to receive payment for goods never supplied
What is meant by the terms referred to in section 240(1)(b) CA61:
A) debt
B) liability
A) means money owing from one person to another
B) means legally enforceable financial obligation to pay, such as the cost of a meal
Where a person has been induced to part with goods by deception, what are the 2 steps they can take to avoid the deceivers title?
Advising the defrauder by letter, in person, phone, text, email that the person defrauded is aware of the deception. If the defrauder cannot be contacted a public notice in the paper will suffice
To successfully prosecute a person on a charge of using altered or reproduced documents with intent to deceive under S259 CA61 name three mental elements you must prove?
1) the defendant must know the relevant matters in regards to the document ie that the document had been altered with intent to deceive
2) the defendant must have intended by the employment, or by causing another to use or rely on it, to obtain by deception any property, privilege, service, pecuniary advantage, benefit or valuable consideration or to cause loss to another person
3) there must be an intention to acquire or retain the property etc or to cause loss by deception
An offender knowingly presents to a retailer an item with two price tags for different amounts, aware the higher amount is the correct price. He shows the lower price to the checkout operator and obtains the item for the lower price. He is apprehended by police two days later for the offence.
A) what offence has been committed?
B) who has title to the item obtained?
A) obtain by deception S240(1)(a)
By any deception
And without claim of right
Obtains ownership, possession of or control over
Any property, privilege, service, benefit, pecuniary advantage or valuable consideration
The prosecution must establish either that the defendant knows or believes his representation is false in a material particular, or is reckless as to whether it is false. State your understanding in relation to the term (false in a material particular)?
Material particular can be given the meaning; important, essential, relevant detail or item.
R V MALLET
A matter will be a “material particular” if it is something important or something that matters.
A minor detail may amount to a “material particular” if it is of consequence to the facts of the case
Investigations into company fraud complaints will usually involve enquiries with the Ministry of Commerce. State four possible sources available there?
Registrar of companies
Insolvency services
Companies office
Official assignee
A) what knowledge must an accused person have to be liable for making a false representation?
B) how can knowledge be established?
A) prosecution must prove the defendant knew that the representation was false in a material particular or was reckless as to its falsity. Absolute certainty is not required
B) knowledge can be established by;
Implication from the circumstances surrounding the event
An admission
Propensity evidence
The term computer system is defined in S248 CA61. State the definition?
“Computer system” includes all related input, output, processing, storage, software or communication facilities, and stored data. It can encompass one computer or a network of computers or a computer connected to the internet with the potential of connecting to millions of networked computers
Propensity evidence may be relevant in some deception cases. When may evidence be called in cases of deception?
S43 Evidence Act 06: prosecution may offer propensity evidence about the defendant in criminal proceedings only if the evidence has a probative value in relation to an issue in dispute in the proceeding which outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant
In relation to S240(2) besides making a false representation by oral what other ways can a false representation be made?
Deception:
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 and or is reckless as to whether it is false in a material particular.
An omission to disclose a material particular with intent to deceive any person in circumstances where there is a duty to disclose it.
A fraudulent device, trick or stratagem used with intent to deceive any other person
What is the definition of obtain as per S217 CA61?
Obtain in relation to any person means to obtain or retain for himself or herself or any other person
In R V HAYES what was held in relation to pecuniary advantage?
Anything that enhances the accused’s financial position. It is that enhancement which constitutes the element of advantage
What are the 2 core elements when it comes to an offence under S220 CA61 - theft by a person in a special relationship?
Requires proof of 2 core elements:
A) that he or she have received property on terms or in circumstances which, to the defendant’s knowledge, affect what the accused may do with the property and its proceeds or require the defendant to act in accordance with the requirements of another person AND
B) the defendant intentionally departed from the relevant obligation
What is the difference between forgery and altering and reproduction of a document?
The differences rest in the varying definitions of “document” and “intent”.
With forgery an intent to deceive only is required, not an intent to obtain by deception.
In the offence of altering, concealing, destroying or reproducing a document you must prove that the offender intended to obtain by deception.
Define claim of right?
S2 CA61: in relation to any act means a belief at the time of the act in a propriety 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 any matter of law other than the enactment against which the offence is alleged to have been committed
Define access when it comes to computer offences?
Access is widely defined and covers almost all interactions with a computer system such as using a computer at work and more remote forms of access such as viewing a website or using a virus
Define property?
S2 CA61: any real or personal property and any estate or interest in any real or personal property or money, electricity, and any debt and anything in action and any other right or interest
Define credit as per 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 creditors. Credit does not extend to an obligation to supply services or goods
Define false representation under S240(2)?
The representation must be false and the defendant must know or believe that it is false in a material particular or be reckless whether it is false. Absolute certainty is not required wilful blindness as to the falsitivity of the statement will suffice
What 2 points were made in R V HARNEY?
Foresight of dangerous consequences that could well happen together with an intention to continue the course of conduct
When interviewing a victim who alleges they have been defrauded what 2 important questions should be asked by the investigator?
1) find out the identity used by the offender
2) obtain descriptions of the offender, the property obtained and the vehicle used
What ate the essential ingredients of the forgery offences as set out in S256(1) CA61?
Everyone is liable to imprisonment for a term not exceeding 10 years who makes a false document with the intention of using it to obtain any property, privilege, service, pecuniary advantage, benefit or valuable consideration:
- makes a false document
- with intent to use it to obtain
- property, privilege, service, pecuniary advantage, benefit or valuable consideration
You are investigating a cheque fraud series where the account has been opened and a cheque book obtained using ficticious details. Apart from the normal bank enquiries in relation to the cheque offences list 4 possible enquiries you should make regarding the offender opening the account with the bank?
1) account number and date it was opened
2) the nature and amount of the first deposit
3) details used when the account was opened
4) descriptions of suspects and associates
5) names / addresses of employee who opened the account
What are essential ingredients of S228 CA61 taking or using a document?
- with intent to obtain
- any property, service, pecuniary advantage or valuable consideration
- dishonestly
- and without claim of right
- takes or obtains / uses or attempts to use any document
Apart from false representation what matters would constitue a deception as defined under S240(2) CA61?
(2) in this section deception mean;
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 is false in a material particular or
ii) is reckless as to whether it is false in a material particular
b) on omission to disclose a material particular, with intent to deceive any person, in circumstances where the duty is to disclose
c) a fraudulent device, trick, strategem used with intent to deceive any person
An offender using a false name and address hires an electric drill from the local hire shop. The drill is found at his home some months later and he claims that he did intend to return it at some stage but didn’t get around to it.
A) what is the most appropriate charge?
B) who has title of the drill?
A) S220 CA61 theft by person in a special relationship
B) the owner of the hire shop. Title never changes hands
Set out the ingredients of the offence of obtaining credit by deception S240(1)(b) CA61?
- by any deception
- and without claim of right
- in incurring any debt or liability
- obtains credit
What was held in the case R V MORLEY as it relates to S240(2)
An intention to deveive requires that the decption is practised in order to deceive the affected party. Purposeful intent is necessary and must exist at the time of the deception
Paul is the director of a company installing windows for domestic property owners. He has a large backlog of jobs to complete due to manufacturing delays by his suppliers. His financial situation deteriorates and he continues to receive deposits from clients in order to pay his bills. Paul thinks he can trade his way out of financial difficulties. Is paul criminally liable for deception? Explain your answer
Yes. Where senior executor of a company committs an offence both the company and the person are liable. This is commercial fraud committed by paul against the public under the guise of his company.
S240(2) duty to disclose. He has not disclosed the backlog and monetary issues. Reckless as to whether he can fulfil the order
When is forgery complete?
Forgery is complete as soon as the document is made with knowledge and intent
For forgery the prosecution must prove that the document was false and the defendant intended either?
To use the false document to obtain or
That the false document be used or acted on as genuine
Two stage test for recklessness?
Subjective test is the internal reason a person acts as they do
An objective test is that of a reasonable person
