Deception Flashcards
What are the 2 main points held in law in relation to R v Harney
A foresight of the dangerous consequences together with intent to continue the course regardless of the risk
When is forgery complete?
Forgery is complete as soon as the document is made with the intent described in subsection (1) of section 256 or with the knowledge and intent described in subsection (2).
What are the ingredients for forgery?
Everyone is liable to a term no 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.
What is the definition of deception in 240(2)
In this section, deception means-
(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 a false in a material particular; or
(ii) is reckless as to whether it is false in a material particular; or
(b) an omission to disclose a material particular, with the 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.
2 questions that must be asked if someone reports a stolen credit card or cheque?
Find out the identity used by the offender
Obtain descriptions of the offender, the property obtained and the vehicle used.
In 240(2) besides the false representation aspect of deception what else is important to prove deception?
There was an intent to deceive and…
That the defendant either knew it to be false in a material particular OR
Was reckless as to whether it was false in a material particular
Ingredients of 228 taking/using a document?
Every one is liable for a term of imprisonment not exceeding 7 years who, with intent to obtain any property, service, pecuniary advantage, or valuable consideration, -
(a) dishonestly and without claim of right, takes or obtains any document; or
(b) dishonestly and without claim of right, uses or attempts to use a document.
R V Morely
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.
Difference between theft and obtaining be deception
Lies with the concepts of possession and title or ownership.
If obtained by deception - title and ownership (by deception)
If obtained by theft - possession but not title or ownership
So, an important distinction between theft and obtaining by deception is that in theft the property is obtained without the owners permission and title is not passed
Bonafide intention.
Delay or non payment of debt
Intent to deceive is not disclosed merely because there is:
- delay or non-payment of the debt, or
- an inability to perform a bona fide intention
Intent to deceive does not exist where payment is withheld because of genuine dissatisfaction with the service, eg refusing to pay for rubbish meal (prior to meal being wholly eaten)
What is credit.
Money owing with a period of time to pay
A senior executive of a company acting on behalf of the company causes loss to other company’s who is held criminally liable.
A company is criminally liable. The actions of the executive are said to be the actions and state of mind of the company. The executive is also personally liable for their actions. The company is the principal offender and the executive is held liable as a party.
Criminal actions of junior management, or employees such as accountants, are not imputed to the company.
Dishonest access of a computer what is required to prove this. 249(2)
Must prove that the offender
(a) obtained any property, privilege, service, pecuniary advantage, benefit, or valuable consideration; or
(b) causes loss to any other person
When is title obtained.
Title passes when it was indented to pass by the parties.
When a defendant obtains goods by deception he obtains title and possession, however there are limitations on the title received by the offender.
Title will pass because goods are generally handed over with consent of the complainant when goods obtained by deception. Because goods are handed over with consent, law recognises owners wanting offender to have the goods and as a result title of the goods
What must exist in relation to Debt and Liability in Deception.
Definitions
The debt or liability must be legally enforceable.
Debt = money owing from one to another Liability = legally enforceable financial obligation to pay - e.g. the cost of a meal
What must be proved in relation to possession.
-
Obtain - credit 3rd person
Long standing authority held that Credit must be obtained by and given to the defendant personally. However in extended definition of Obtain, it sufficient that the defendant obtained the extension of credit to another person. Examples where credit may be obtained: Obtaining money on loan Extending existing overdraft facilities Renting or leasing a dwelling
Claim of right Sec 2 CA 61
In relation to any act, means a belief at the time of the act in a proprietary and 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.
Sec 2 CA 61
Property Sec 2 CA 61
Property 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
Sec 2 CA 61
Fisher V Raven - Credit
Credit
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.
False representation
False 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 and wilful blindness as to the falsity of the statement will suffice
R v Misic.
Essentially a document is a thing which provides evidence or information or serves as a record.
How can title be voided.
Take all possible steps to communicate with the deceiver, eg, write a letter, text, phone call, notice in newspaper
Make a complaint to Police
What is a valuable consideration.
A valuable consideration is anything capable of being valuable consideration, whether of a monetary kind or of any other kind; in short, money for moneys worth.
Hayes v R
eg:
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
Besides making a false representation by oral what other ways can a false representation be made?
Documentary, conduct, fraudulent device, Trick or Stratagem
R V Hayes - pecuniary advantage
What was held
A pecuniary advantage is “anything that enhances the accused’s financial position”. It is that enhancement which constitutes the element of advantage
Primary teacher - motor accident - injured neck -ACC.
Claimed not able to work but ran 2 companies. Honestly believed could get payments cause not original occupation.
Two core elements when it comes to an offence under s220 theft by a person in a special relationship
(a) that he or she have received property on terms or in circumstances which, to the defendants knowledge, affect what the accused may do with the property or its proceeds or require the defendant to act in accordance with the requirements of another person, and
(b) that the defendant intentionally departed from the relevant obligation
Difference between forgery and altering and reproduction of a document
With forgery, a 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.
Access
Computer Offences
Access, 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.
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.
Hayes v R - valuable consideration
A valuable consideration is “anything capable of being valuable consideration, whether of a monetary kind or of any other kind; in short, money for money’s worth”.
Obtaining by Deception 240 (1) (a) 3m / 1 /7 years
By any deception - Deception 240(2)
- False Representation
- Intent to Deceive
- R v Morley
- R v Laverty
Without claim of right - CoR Sec 2 CA 61
Obtains possession of or control over any property
or
any privilege, service, pecuniary advantage
or
benefit
or
valuable consideration
(obtains, possession, actual possession, Warner v Met Pol Comm, constructive possession, property, Privilege or benefit, service, R v Hayes - Pecuniary advantage, R v Hayes Valuable consideration)
Privilege or benefit - special right or advantage
Intent to deceive 240 (1)(a)
R v Morley
R v Laverty
Intent to Deceive
Offender must know that the representation is false in and intent the other person to act upon it as genuine.
R v Morley
The intention to deceive requires that the deception be practiced in order to deceive the affected party. Purposeful intent must exist at the time of the deception.
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
Obtains 217 CA 61
Obtain in relation to a person, means obtain or retain for himself or herself or for any other person.
Obtaining be Deception 240(1)(b) 7 years
By any Deception
And Without Claim of Right
In incurring any debt
OR
Liability
Obtains Credit
Debt
Money owing from one person to another
Liability
Legally enforceable financial obligation to pay
Credit Fisher v Raven \+ R v McKay ...credit had been obtained...but at the time the accused did not possess an intent to deceive.
Obtaining by Deception 240(1)(d) 7 / 1 / 3 mths
By any Deception
and Without Claim of Right
Causes loss to any person
Deception
R v Morley
CoR
Loss
Is likely to include financial and property losses and may also encompass emotional, cultural and intellectual losses
Person - gender….
or Sec 2 Def. if relevant to scenario
Sec 2 CA 61
Person, owner, and other words and expressions of the like kind, include the Crown and any public body or local authority, and any board, society, or company, and any other body of persons, whether incorporated or not, and the inhabitants of the district local authority, in relation to such acts and things as it or they are capable of doing or owning
Intent
R v Mohan
R v Waaka
Intent
A person does something intentionally if they mean to do it, they desire a specific result and act with the aim or purpose of achieving it.
R v Mohan
Intent involves a decision to bring about, in so far as it lies within the accused’s power, the commission of the offence
R v Waaka
A fleeting or passing thought is not sufficient; there must be a firm intent or a firm purpose to effect an act
Pecuniary advantage
Pecuniary advantage
economic or monetary advantage
Dishonestly S217 CA
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.
When interviewing a victim who alleges that they have been defrauded, what two important questions should be asked by the investigator?
The identity used by the offender.
Descriptions of the offender, the property obtained and the vehicle used.
You are investigating a cheque fraud where account opened and chequebook obtained with fictitious details. Apart from the normal bank enquiries in relation to cheque offences, list four possible enquiries you should make regarding the offender opening the account.
Account number and date opened.
Nature and amount of the first deposit.
Details of other deposits.
The details used when opening the account.
Descriptions of the suspect and any associates.
Names and addresses of employee who opened the account and other employees who can ID the suspect.
The serial numbers of the cheques supplied
Details of the dishonoured cheques and the people/firms defrauded.
An offender using false name and address hires an electric drill from a local hire shop. The drill is found at his home some months later and he claims that he did intent to return it at some stage but didn’t get around to it.
What is the most appropriate charge?
Who has title to the drill?
Obtaining by Deception 240 (1)(a) CA 61
By any deception and without claim of right, obtains possession of or control over any property
Hire people have title to the drill as in they have a lien over the property, or similar to hire purchase, possession but not title
Paul - director small company. Large back log of jobs with manufacturing delays. 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. Is Paul criminally liable for deception? Explain answer.
Yes because he knows that his ability to provide the service is false in a material particular in that he cannot provide the items.
In relation to 240(2) besides making a false representation by oral…what other ways can a false representation be made
Documentary, conduct, fraudulent device, trick or stratagem
How is the term (representation) interpreted (not defined) by the courts. State the relevant case law in your answer
Representation - False Representation
R v Morley
Representation not defined. Examples include representations about past or present fact, or about a future event, existing intention, opinion, belief, knowledge. It must be capable of being false so must contain a proposition of fact. Simester and Brookbanks Principals of Criminal Law 2007
False 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. Wilful blindness will suffice.
R v Morley
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.
False representation - what is required to be proved?
That there was an intent to deceive
That there was a representation by the defendant
That the representation was false; and the defendant either:
Knew it was false in a material particular OR
Was reckless whether it was false in a material particular
What ‘knowledge’ must an accused person have to be liable for making a false representation
How can ‘knowledge’ be established
That 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.
Knowledge can be established by:
An admission
Implication from the circumstances surrounding the event
Propensity evidence
Propensity Evidence 43(1)
When is it admissible?
The prosecution may offer propensity evidence about a defendant in a criminal proceeding 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.
Propensity evidence is admissible in cases of deception where there is sufficiently strong connection between the offences..
eg
evidence that other cheques drawn by defendant were dishonoured shows intent when trying to draw another cheque
When is title voidable
Where title is obtained by deception, fraud, duress or misrepresentation it will be voidable title.
If an innocent purchaser buys goods obtained by deception, before title is avoided, then he or she is entitled to a good title.
Specified Intent - Forgery
Intent to deceive is not an essential ingredient of forgery.
Prosecution must prove that at the time of the act, the defendant, knowing the document was false, intended either:
*to use the false document to obtain, or
*that the false document be used or acted on as genuine.
Not enough that the document is false and the maker knows it is false. It must also be proved that the offender intended to deceive by means of that which is false.
Computer system 248(a)
Computer system
(a) means
(i) a computer; or
(ii) two or more connected computers; or
(iii) any communication links between computers or to remote terminals or another device; and
(iv) 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.
An offender has given fictitious details and has defrauded the bank, what 4 actions other than the bank enquiries must you do in order to assist u to identify the offender?
Check any relevant addresses for offender
Follow up car registration, phone numbers and evidence to identify
If you have a photo - put photo on Bully Board
If property easily IDed consider possible avenues of disposal
If appropriate - warn customs re ATM fraud - if believe trans national gang committed crime
Fingerprint cheques/vouchers
Representations can be made in 3 ways….
orally, documentary or by conduct
To successfully prosecute a person on a charge of (using altered or reproduced documents with intent to deceive) under section 259 of the Crimes Act 1961, name three mental elements you must prove
Defendant must know that the document has been altered with intent to deceive
The defendant must have intended to obtain by deception any property, privilege, service, pecuniary advantage, benefit or valuable consideration or to cause loss
There must be an intent to acquire or retain the property or to cause loss
Investigations into company fraud complaints will usually involve enquires with the Ministry of Commerce. State four possible sources available there
Registrar of companies
Companies office
Official assignee
Insolvency services
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)
A minor detail may amount to a material particular if it is of consequence to the facts of the case. Material particular means important, essential or relevant detail or item
An offender knowingly presents to the retailer an item with two price tags for different amounts, aware that 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 some two days later for this offence
a) what offence has the offender committed
b) who has title to the item obtained by the offender
Obtains by deception
Police v Dronjak
Price tag $695.8 for radio, added price tag $38.88 Defendant allowed cashier to charge incorrect price by not pointing out higher price - he obtained title by deception by remaining silent
The offender has title
Propensity evidence may be relevant in some deception cases. When may evidence of propensity be called in cases of deception
Propensity evidence is admissible in cases of deception where there is sufficiently strong connection between the offences..
eg
evidence that other cheques drawn by defendant were dishonoured shows intent when trying to draw another cheque
POLICE investigating the fraudulent use of credit cards or cheques must conduct enquires with the bank where the account is domiciled
List the information an investigator must obtain from the bank accounts manager
*The account holders full name, occupation, private and business addresses and telephone numbers
*The date account was opened
*The account history and how it is has been operated
*The date the cheque book or credit card was reported missing
*How and by whom a loss was reported
*The serial number so of any missing cheques
*Details of any cheques dishonoured and returned
*Whether the account holder is suspected of issuing valueless cheques
NB - also find out if there are other banks which cheques have been returned, and details of people/firms defrauded
LIST the things a judge may consider when considering propensity evidence?
(a) The frequency with which the acts, omissions, events, or circumstances which are the subject of the evidence have occurred
(b) The connection in time between the acts, omissions, events, or circumstances which are the subject of the evidence which constitute the offence for which the defendant is being tried
(c) The extent of the similarity between the acts, omissions, events, or circumstances which are the subject of the evidence which constitute the offence for which the defendant is being tried
(d) The number of persons making allegations against the defendant that are the same as, or are similar to, the subject of the offence for which the defendant is being tried
(e) Whether the allegations described in para (d) may be the result of collusion or suggestibility
(f) The extent to which the acts, omissions, events, or circumstances which are the subject of the evidence which constitute the offence for which the defendant is being tried are unusual
WHEN investigating company fraud what sources of information must you canvass early to assist you in your investigations?
Police accountants and Legal Officers -
Police forensic accountants in AK, WG, CHCH. Legal Section can help in preparing production orders, search warrants and charges.
Ministry of Business, Innovation and Employment - Possible sources of information: Registrar of companies Companies office Official assignee Insolvency services
Commerce Commission -
Assist in matters relating to:
Fair Trading Act
Pyramid selling
Financial Markets Authority -
Assist re above act
NZ Customs -
International travel and CAPPS alerts
Liquidators and receivers -
These administer companies that are in liquidation or receivership. They are usually accountants
Police v Dronjak
Price tag $695.8 for radio, added price tag $38.88 Defendant allowed cashier to charge incorrect price by not pointing out higher price - he obtained title by deception by remaining silent
Lien
a right over another persons property to protect a debt charged on that property
