DECEPTION

Question 1

Ingredients s.228

Answer 1

228(1)(a) 7 Years 1) With Intent to Obtain any Property, service, Pecuniary Advantage or valuable consideration 2) Dishonestly 3) And without claim of right 4) Takes or obtains any document 228(1)(b) 7 Years 1) With intent to … 2) Dishonestly 3) And without claim of right 4) Uses of attempts to use any document

Question 2

Definition Intent

Answer 2

In criminal law context there are two specific types of intent, firstly there must be an intent to commit an act and secondly and intent to get a specific result

Question 3

Definition Obtain

Answer 3

Obtain s.217 CA61 In relation to any person means to obtain or retain for himself or any other person

Question 4

Definition Property

Answer 4

Property s.2 CA61 Property includes any real or personal property, and any estate or interest in any real or personal property, any money, debt or electricity, or any other thing in action, or any other right or interest.

Question 5

Define Pecuniary Advantage

Answer 5

Pecuniary Advantage Basically means an economic or monetary advantage R v HAYES A pecuniary advantage means anything that enhances the accused’s financial position it is this enhancement that constitutes the element of advantage.

Question 6

definition Dishonestly

Answer 6

s.217 CA61 Dishonestly In relation to any act or omission means done or ommitted without a belief in an expressed or implied consent to or authority for the act or omission from a person authorized or entitled to give such consent

Question 7

definition Claim of Right

Answer 7

Claim of Right s.2 CA61 In relation to any act, means a belief at the time of the act in a proprietary or possessory right to property against which the offence os alleged to have been committed. Although that belief may be based on ignorance, mistake o fact or any other matter of law other than the enactment against which the offence is alleged to have been committed.

Question 8

Definition Takes

Answer 8

Takes s.219(4) For tangible property, theft is committed by the taking, when the offender moves the property or causes it to be moved.

Question 9

Define; Document;

Answer 9

DOCUMENT s.217 CA61 Includes any part of a document in any form and includes: * pater materials containing anything that can be read * photos negatives and other related items Discs, Tapes, Cards and other device/equipment on which information can be stored or serves as a record. Rv MISIC Essentially a document is a thing which provides evidence or contains information or serves as a record.

Question 10

Who does the offence of Theft by a person in a special relationship apply to? s.220 CA61

Answer 10

applies to any person who receives or has control over any property on terms or in circumstanes that that person knows require them to:

a) acount to any other person for the property or for the proceeds arising from the property
b) to deal with the property or any proceeds arising from the property in accordance with the requirements of any other person

Question 11

What is the definition of and an example of valuable consideration?

Answer 11

Anything capable of being a valuable consideration, whether of monetary kind or any other kind, in short money or moneys worth.

eg. payment in return for goods and services,

goods given in eturn for services provided,

payment for goods received by issuing a false invoice,

a compensation, fee or payment.

Question 12

What are the ways in which a false representation can be made?

Answer 12

Orally

in writing

by conduct

Question 13

What are the two core elements of proof for the offence of theft by a person in a special relationship s.22 CA61

Answer 13

a) that he/she received property, on terms or 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.

b) The the defendant intentionally departed from the relevant obligation

Question 14

What is the deference between s.249(1) and 249(2): Accessing computer system for dishonest purpose

Answer 14

s. 249 everyone is liable who directly or indirectly asseses any computer system ((1) and thereby) OR
* ((2)* with intent)

Dishonestly OR by deception and w/o claim of right:

a) obtains any Property, Service, Privelige, Benefit, PA of VC OR
b) causes loss to any person

The distinction is reflected in the words “thereby” and “obtains”:

(1) (7 years) is directed at the situation where a person has actually accessed a computer system, obtains the offending material or causes loss, wheras:
(2) (5 years) is directed at someone who actually asseses the computer system with that intent regardless of the result which may be unsucessfull.

Question 15

What is the deifference between forgery (s.256) and altering or reproducing a document (s258)?

Answer 15

The differences rest in the varying degrees of document and intent.

With forgery an intent to decieve only is required not an intent to obtain by deception and the document must be a false document as defined in s.255.

In the offence of altering, concealing, destroying or reproducing a document you must prove the defendant intended to obtain by deception and the document can be any document.

Question 16

Define access in relation to s.249 Accessing a computer system for dishonest purpose?

Answer 16

Access (s.248)

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.

Question 17

Define credit:

Answer 17

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 creditor.

Credit does not extend to an obligation supply goods or services.

Question 18

Define false representation

Answer 18

The representation must be false and the defendant must know or beleive it to be false in a material particular, or be reckless whether it is false.

Almost certainty is not required and wilfull blindness as to falsity will suffice.

Question 19

List the things a judge must consider when assesing a propensity evidence application?

Answer 19

1) the nature of the issue in dispute.

2) the probative value of the evidence.

* the frequency that the acts, ommissions, events or cicumstances have occured

* the connection in time between the acts, events, ommissions or circumstances which are the subject of the evidence and those which constitue the offence the defendant is being tried on

* the extent of simmilliarity between the acts …

* the number of persons making allegations against the defendant that are the same as or simmilliar tot he subject which the constitutes the offence the defendant is being tried upon an wether they may be the result of collusion or sugestibality.

* The extent to which the acts … are unusual

3) the prejudicial effect of the evidence on the defendant and whether:

* the evidence is likly to unfairly predisose the the fact finder against the defendant, and

* the fact finder will tend to give dissproportionate weight in reaching a verdict to evidence of other acts or ommissions

Question 20

Disucss the criminal liability of a company when one of its employees commits a fraud offence

Answer 20

When a senior executive acting on behalf of a company commits an offence the company is the principal offender and the executive a party to the offence.

Criminal actions of other employees are not imputable to the company.

Question 21

Define debt or liability?

Answer 21

Debt: money owing from one to another.

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

Question 22

What is the ultimate issue in regards to the admissability of propensity evidence?

Answer 22

the degree to which its probative value outweighs its prejudicial effect.

Question 23

What are the ingredients of forgery and when is the offence complete?

Answer 23

256 (1) 10years

• makes a false document
• with intent to obtain a Property, service, privilege, service, PA, benefit or VC.

256(2) 3 years

• makes a false document knowing it to be false,
• with the intent that it used or acted upon in NZ or elsewhere as genuine.

The offence is complete as soon as the document is created with the required intent. even though it may be incomplete.

Question 24

Define R v MORLEY in relation to an intention to Deceive

Answer 24

R v MORLEY

an intention to deceive requires that the deception be practised in order to deceive the affected party, purposefull intent is necessary and must exist at the time of the deception.

no offence is commtted unless the decpetion is committed to deceive the victim or in the knolwedge that the victim is virtually certain to be deceived. Recklessness is insufficient.

Question 25

IDentify 5 possible enquires in relation to an offender opening an account with a bank?

Answer 25

1) obtain a sample of the suspects handwritting from bank documentation.
2) Ascertain whether the offender was captured on CCTV or their photograph taken.
3) Liase wit the Bank investigator and arrange for the original cheques to be recovered and forwarded to you or if the bank insists on returning them to the complaint obtain their details so you can request they forward them to you.
4) Arrange for original documents to be examined by a fingeprinting expert or document examiner and ensure they are handled as little as possible.
5) contact other Polcie stations and fraud squads as to similiare complaints and investigations

Question 26

Identify possible enquiries that could be made at the branch where the offender opened the bank account?

Answer 26

1) date the account was opned
2) photographs and CCTV of the offender
3) The date the cheque book or credit card was reported missing
4) the seriel numbers of any missing cheques
5) details of dishonoured cheques and the people defrauded.

Question 27

What sources may be available to assit with an investigation into a company fraud investigation?

Answer 27

1) Police forensic acountants
2) Legal section in regards to preparing production orders and search warrants and charges.
3) ministry of business, Inovation and employment with the Register of Companies, Companies office, Official assignee and insolvancy services.
4) commerce commission in realtion to offences against the fait trading act and pyramid selling.
5) Financial markets authority in relation to company prospectuses and offences agasint the financial markets authority act.
6) NZ customs in relation to matters involving international tranves and CAPPS alerts.
7) Liquidators an receivers.

Question 28

Discuss R v MORLEY in relation to loss?

Answer 28

The loss caused must be a direct los indirect losses such as anticipated future profits and loss of a bargain are not included.

“The loss aledged by the victim must have been induced by or caused in reliance upon the deception, but the deception need not be the only operative factor, so long as it played a material part in occassioning loss.”

Question 29

How can an inducement be proved?

Answer 29

By direct evidence from the person alleged to have been defrauded. in practise the defendant is questioned to elicit answers proving;

*the the false representation was beleived.

* that it was a consequence of that beleif tyhat the victim parted with their money.

Question 30

What is the definition of a false document?

Answer 30

means a document:

a) of which the whole or any material part purports to be made by any person who did not make it or a fictitious person
b) of the the whole or any material part purports to be made on behalf of any person who did not authorise its making or on behalf of a fictitious person
c) of which the whole or any material part has been altered by addittion, insertion, deletion, obliteration, erasure, removal or otherwise, and that purports to have been altered by or on behalf of a person who did not alter it or authorise its alteration or by a or on behalf of a fictitious person.
d) that is in whole or part a reproduction of any other document and that purports to be made by or on behalf of a person who did not make it or authorise its making, or by a fictitious person.
e) that is made in the name of a person, either by that person or there authority, with the intention that it should pass, as being made by some other person who did not make it or by a fictitous person.

For a document to be forged it must meet that definition.

essentially a false document tells a lie about itself.

Question 31

Define material particular?

Answer 31

not defined in crimes act but given its usual meaning of an important, essesntial or relevant detail or item.

In R v MALLET; a matter will be a material particular if it is something important or something that matters.

Question 32

How can title be avoided?

Answer 32

A communication with B

If unable to directly communicate then by taking all other possible steps eg. writting a letter, email or putting notice in a paper,

Reporting the matter to police.

Question 33

What are the elements of s.259 using altered/reproduced document with intent to deceive

Answer 33

1) knowing any document to have been made or altered in the manner and with the intent in s.258 (to obtain any property, service, provilege, benefit Pecuniary Adv or Val consideration or to cause loss to any person
2) uses, deals with or act upon the document OR
3) causes any person to use or deal with or act upon the document

Does not included transactions with others who are aware of the documents nature.

must prove;

1) document had been altered with intent to deceive.
2) the defendant intended by using or causing another to use the document to obtain by deception,
3) OR there was an intent to retain the property or cause loss to another by the deception

Question 34

How is the term representation interpreted?

Answer 34

a representation can by oral, written or demonstrated by conduct or a combination there of.

R v MORLEY

Representations must relate to a statment of existing fact, rather than a statment of future intentions

Question 35

explain “false in a material particular” and how can knowledge the defendant knew the material particular was false be proven?

Answer 35

The representation must be false and the defendant must know it to be false in a material particular, or be reckless wether it is false, absolute certainty is not suficient and will full blindness as to the falsity of the statment will suffice, a minro detail may amount to a material particular if it is of consequence to the facts and the question of materiality will be assesed objectivly.

Knowledge the defendant knew the material particular to be falsecan be proven by;

1) admissions,
2) implications from the circumstances surrounding the events,
3) propensity evidence.

Question 36

When may propensity evidence be admissable?

Answer 36

When there is a sufficiently strong connection between the offences.

it is more likly to be deployed in cases involving specific offences with a discernable methodology or pattern.

Propensity evidence is admissable if it has a tendancy to prove or dissprove anything that is of concequence to the determination of procedings

the ultimate issue is the degree to which the probative value of the evidence outwighs its prejudicial effect.

Question 37

What must be proved in a prosecution for forgery s.256?

Answer 37

intent to deceive is not an essential ingredient of forgery but you must prove that:

1) at the time fo the forgery
2) the defendant knew the document to be false and intended to;

use the false doument to obtain OR

that the false document be used or acted upon as genuine

It is not enough that the document is false and the maker knows it to be so, it must also be proved the maker intended the document to deceive by its falsity.

Question 39

define “by any deception s240 (1) (a)(b)(c)

Answer 39

Deception:

a) a false representation whether oral, documentary, or by conduct, where the person making the representation intends to deceive any other and
1) knows it to be false OR
2) 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 OR
c) a fraudulant device, trick or strategem used with intent to deceive any person.

FALSE REPRESENTATION

must be false and the efendant must know or beleive that it is false in a material particular OR be reckless as to whether it is false.

Absolute certainty is not required and wilfull blindness as to the falsity of the statment will suffice.

INTENT TO DECEIVE

the offender must know the representation to be false and intend the other to act upon it as genuine.

R v MORLEY

the intention to deceive requires that the deception be practised in order to deceive the affected party. Purposefull 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.

Question 40

State ingredients of Deception offences

Answer 40

240(1)(a)

By any deception

And without claim or Right

Obtains possesion of or control over any property, OR privilege, service,PA, VC or benefit

240(1)(b)

By any deception

And without claim of right

In incurring any debt or liability

Obtains credit

S.240(1)(c)

By any deception

And without claim of right

Causes loss to any person

Question 42

Ingredients s.249 Access Computer system for dishonest purpose

Answer 42

249(1) (7 yrs)

Everyone is liable to 7 years imprisonment who directly or indirectly accesses a computer system and thereby dishonestly and by deception and without claim of right

(a) Obtains any Prop, Priv, Ser, Ben, PA or VC OR
(b) causes loss to any person

249(2) (5 yrs)

Everyone is liable to 5 years imprisonment who directly or indirectly accesses a computer system

with intent to dishonestly and by deception and without claim of right

(a) obtains any Prop, Priv, Ser, Ben, PA or VC
(b) causes loss to any person