Deception Flashcards
Section 228(1)(a)
Dishonestly takes or uses a document
7 years imprisonment
With intent To obtain any Property, Service, Pecuniary advantage, or Valuable consideration
Dishonestly and without claim of right, takes or obtains any document
Section 228(1)(b)
Dishonestly takes or uses a document
7 years imprisonment
With intent To obtain any Property, Service, Pecuniary advantage, or Valuable consideration
Dishonestly and without claim of right, uses or attempts to use any document
For section 228(1) intent means?
The defendant must intent to obtain, and must intent to obtain by deception
Define obtain
Means to obtain, retain for himself, herself or any other person
Define property
Includes any 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
Define service (r v cara)
In r v cara - service is limited to financial or economic value and excludes privilege or benefit
Define pecuniary advantage (Hayes v R)
A pecuniary advantage is anything that enhances the accused’s financial position
Define valuable consideration
A valuable consideration is shying capable of being valuable consideration, whether of a monetary kind or any other kind, money or moneys worth.
Define dishonestly
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.
Belief in Hayes v r
The question is whether the belief is actually held not whether that belief is reasonable
Define without claim of right
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 based on ignorance or mistake of fact or of any matter of law other than the enactment against which the offence is alleged to have been committed
Claim of right requires that the defendant have?
At the time of the alleged offence, a belief in a proprietary or possessory right in property in relation to which the offence is alleged to have been committed
Nature of belief (claim of right)
- there must be a belief that relates to an element of?
- Ownership of the property in question
- Or a right to take or retain possession of it
(Property may include intangible property)
Define takes
Is the same as theft - when the offender moves the property or causes it to be moved
Define document section 217 CA61
Short definition ( R v Misic) essentially a document is anything which provides evidence or information or serves as a record
Prosecution must prove for uses or attempts
That the offended used or attempted to use the document with the intent,
To obtain the property, service, valuable consideration pecuniary advantage or valuable consideration.
Attempts section 72 CA61
Everyone who having an intent to commit an offence, does or omits an act for the purpose of accomplishing his object is guilty of an attempt to commit the offence intended whether in the circumstances it was possible to commit the offence or not.
Section 240(1) obtaining by deception or causing loss by deception.
(1) everyone is guilty of obtaining by deception or causing loss by deception who, by any deception and without claim of right,
(a) obtains ownership or possession of, or control over any property, privilege, service, pecuniary advantage, benefit,valuable consideration, directly or indirectly or
(b) in incurring any debt or liability, obtains by credit or
(c) induces or causes any other person to deliver over, execute, make, accept, endorse, destroy or alter any document or thing capable of being used to derive a pecuniary advantage or
(d) causes loss to any person
Define deception section 240(2)
(a)
(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 or
Define deception section 240(2)
(b)
(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
Define deception section 240(2)
(c)
(c) a fraudulent device, trick or stratagem used with intent to deceive any person
What must you prove for deception
- 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 to be false in material particular or
- was reckless wether it was false in material particular
Define representation
Is not defined - SIMESTER BROOKBANKS suggest “it must be capable of being false so it must contain a proposition of fact”
Define false representation
The representation must be false, the defendant must know or believe that it is false in material particular or be reckless whether it is false.
Section 240(1)
Intention to deceive
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 if the deception.
Section 240 - knowledge
The prosecution must prove that the defendant knew that the representation was false in material particular or was reckless as to its falsity, absolute certainty is not required
Knowledge can be established by
- an admission
- implication from the circumstances surrounding the event
- propensity evidence
Define material particular
It is not defined - its usual meaning of an important, essential or relevant detail or item
Define reckless
A conscious and deliberate taking of an u justifiable risk
When recklessness is an element in the offence the crown must prove the following ?
- the defendant consciously and deliberately ran a risk (subjective test)
- the risk was unreasonable to take in the circumstances (objective test)
Define omission
An inaction or not acting, a conscious decision not to do something
Define the following for section 240(2)(c)
- device - a plan, scheme or trick
- trick - an action or scheme undertaken to fool or outwit or deceive
- stratagem - a cunning plan or scheme for deceiving an enemy
Underlying each term is the concept of
Deceit and dishonesty
Section 240(1)(a) - obtaining by deception or causing loss by deception,
- P
- P
- P
- S
- B
- V/C
Directly or indirectly
- property
- privilege
- pecuniary advantage
- service
- benefit
- valuable consideration
Directly or indirectly
Define privilege and benefit
They both mean a special right or advantage
Difference between theft and obtaining by deception
In Theft, the property is obtained without the owners permission and title is not passed on
Define ownership (title)
Ownership is synonymous with the concept of title - a person parting with goods relinquishes possession to the other person, but also passes on legal right of ownership (title) of the goods
Define actual possession
Where the thing in question is in the persons physical custody
Define potential possession
Where the person has the thing in question under their control ie, storing the thing at an associates address
Define ideal possession (R v Cox)
Where the person has both the physical and mental possession of the thing
- knowledge that the person possesses the thing and
- an intention to possess the thing
Define a special lien
Is a right over another persons property to protect a debt that is (charged on that property) until the debt is repaid.
Define “to control” something
Means to exercise authorities or dominating influence or command over it.
Define pecuniary advantage, use examples
Simply means economic or monetary advantage
- cash from stolen goods
- clothing or cash obtained by a credit card
- a discount (using a student id card)
- avoiding payment of debt
Section 240(1)(b) - obtaining credit by deception
By any deception and without claim of right
(b) in incurring any debt or liability, obtains credit or,
A
Define debt
Means Money owing from one person to another
Define liability
Means a legally enforceable financial obligation to pay - ie the cost of a meal
What you must proved for section 240(1)(b)
- by deception and without claim of right
- in incurring any debt or liability
- obtained credit
Note that Debt or liability must be legally enforceable otherwise there is no offence
A
Creating reasonable doubt for dishonestly
That belief may be either
That the act or omission was expressly or impliedly, consented to by a person entitled to give consent, or
That the act or omission was authorised by a person entitled to authorise it
Representation defined
It is not defined, examples
Examples of benefit or privilege
A special right or advantage
- using another’s gym membership
- access to medical services
- withdrawal of assault charge
- reduction in sentence
Define credit
Refers to the obligation on the debtor to pay or repay and the time given for them to do so by the creditor.
What must you prove for deception 240(1)(b)
Incurring any debt or liability obtains credit
- by deception and without claim of right
- in incurring any debt or liability
- obtains credit
Obtains credit. Link to debt
There must be a causative link between the debt or liability and obtaining credit
Credit. Obligation to pay
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 - time to pay
This can vary ie mortgage loans or over a few minutes with haircuts or meals. At the end of the period of credit payment is expected
When is obtaining credit unlawful
When there is an intent to deceive
Timing of intention to deceive
This must exist at the time when the deception is perpetrated
Ie, when credit is obtained, a later decision not to pay is insufficient
Intent to deceive for meals
Must be proved that they had an intent to deceive when they entered the restaurant or started their meal
Credit is an intangible thing and must be in respect to a
Monetary obligation
240(1)(c) induces
To persuade, bring about or give rise to
Proof of inducement
Should be proved by direct evidence from person being defrauded
- that the false representation was believed and
- that it was the consequences of that belief that the victim parted with his or her money
In the absence of direct evidence for inducement a reasonable influence
A reasonable inference can be drawn in certain circumstances that the owner was induced
R v Laverton
It is necessary for the prosecution to prove that the person parting with the property was induced to do so by the false representation
A
Define the following
Deliver over - to hand over or surrender up
Execute - put a course of action into effect
Endorse - is to write or sign on a document
Alter - to change in character or composition
Accept - to receive somthing
-
Define the “thing”
It must be tangible and able to be used to derive a pecuniary advantage
Define loss - to cause loss
Will normally involve a financial detriment to the victim
A loss must consist of a direct loss
Indirect loss is not included
For section 240(1)(d) cause loss by deception. What is required to be proved
- The loss was caused by deception
- It was reasonable foreseeable the loss would occur
- Need. To prove the loss was intentionally caused
Section 40 EA2006 - propensity evidence means
40(1)
(a) Means evidence that tends to shoe a persons propensity to act in a particular way or to have a particular state of mind, being evidence of acts, omissions, events or circumstances with which a person is alleged to have been involved but,
(b) does not include evidence of an act or omission that is,
(i) 1 of the elements of the offence for which the person is being tried or
(ii) the cause of action in the proceeding in question
Section 40(2) propensity evidence
A party may offer propensity evidence in a civil or criminal proceeding about any person
Section 40(3) propensity evidence
A
Define title
Simply means a legal right to the property
Define voidable title
Title that has been obtained by deception, fraud, duress or misrepresentation. This means the title can be voided by the seller
To avoid the title a person must do one of the following
- communicate with defrauded person
- take all other steps to bring it to defrauders notice, writing letter, phone, text
- advise the police the vehicle was obtained by deception.
Section 25 sale of goods act 1908
Where the seller of goods has a voidable title thereto, but his title has not yet been avoided at the time of the sale, the buyer acquires a good title to the goods, provided he buys them in good faith and without notice of the sellers defect in title
Title rule of law
No one can pass on a better title than they themselves have
Forgery section 256(1)
10 years
Makes a false document Intent to obtain any P P P S B Vc
Forgery
Section 256(2)
3 years
Makes a false document
Knowing it to be false
With the intent of it being used or acted upon
in NZ or elsewhere.
Forgery
Section 256(3)
Forgery is complete as soon as the document is made with the intent described in sub 1 or with the knowledge and intent in sub 2
False document Section 255(a) - (e)
A false document must lie about itself, or intend to convey a lie in cases where it has been written by someone intending to pass it off as having been written by someone else. These various forms of lies make a document false.
Section 255 - false document in short
(a) purports to be made by any person who did not make it
(b) purports to be made by or on behalf of any person who didn’t authorise it
(c) altered by additions, insertions, deletions, obliterations, removal of material or erasures
(d) reproductions of any document
(e) made in name of person
Only the original forgery, not a scan of the forgery, claiming to be an original constitutes a forgery.
A
Examples of alterations to a genuine document
Additions Insertions Deletions Obliterations Removal of material or otherwise Erasures
Forgery - specified intent
Prosecution must prove at the time of the act, the defendant, knowing 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
Examples of forgery
- writing an exam in name of another person who is required to sit the exam
- pre dating a deed to give it priority over another
- forging letters of recommendation for a CV needed to obtain a position
- falsely completing a statement of service on witness summons
Section 257(1) - using forged documents 10 years
- Knowing a document to be forged
- (a) uses the document to obtain any P,P,P,S,B,V/C or
- (b) uses, deals with, or acts upon the document as if it were genuine
- (c) causes any other person to use, deal with or act upon it as if it were genuine
Forgery - knowledge
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.
Section 258(1) altering, concealing, destroying or reproducing with intent to deceive 10 years
With intent to obtain by deception any P,P,P,S,B,V/C or to cause loss to any other person,
(a) alters, conceals or destroys any document, or causes any document to be altered, concealed or destroyed, or
(b) makes a document or causes a document to be made that is, in whole or in part, a reproduction of any other document
Forgery vs altering, reproducing or destroying a document
With forgery an intent to deceive only is required - and the document must be a false document
With altering etc an intent to obtain by deception is required
Section 249(1) - access computer system for dishonest purpose
7 years
Who, directly or indirectly, accesses any computer system and thereby, dishonestly and without claim of right,
(a) obtains any P,P,P,S,B,V/C or
(b) causes loss to any other person
Difference between section 249(1) and (2)
Is reflected in the words thereby and obtains
249(1) is where person has accessed a computer and OBTAINED the offending material or caused loss. 7 years
249(2) is someone who accessed a computer system with that intent regardless of the result 5 years
Causing loss by deception
R v Morley - prosecution must prove
- the loss was caused by deception
- it was foreseeable some more than trivial loss would occur, but
- need not prove the loss was intentionally caused
Forgery vs altering, reproducing document
- Forgery has intent to deceive and the document must be a false document
- altering etc you must prove the offender intended to obtain by deception and any document can be altered, reproduced etc
Section 43(3) EA2006
Propensity evidence offered by prosecution about defendant
Judge may consider
- frequency in which acts or omissions have occurred
- connection in time between acts or omissions
- extend of similarity between acts or omissions
- number of people making allegations against defendant
- where the allegations in (d) are a result of collusion or suggestion
- unusual nature of acts or omissions
Computer crimes
Access
Instruct, communicate with, store data in, receive data from, or otherwise make use of any resource of the computer system
Computer crime
Authorisation
Authorisation conferred on a person under any enactment or rule of law or order by the court or judicial process
Define Computer system
- A computer, or
- two or more interconnected computers or
- 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
An alteration is (altering a document)
A material alteration if it increases the value or negotiability of a document or instrument
Computer 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
Accessing a computer for dishonest purposes Section 249 (1) CA61
Directly or indirectly Accesses any computer system and thereby, Dishonestly or by deception and WOCOR (a) obtains any PPPSBV/C or (b) causes loss to any person
