Deception

Question 1

Define deception

Answer 1

s 240(2)

(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​ 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.

Question 2

Explain the concept of title

Answer 2

Definition: a right or claim to the ownership of property

A person cannot give better title to property than they own. The buyer can receive no greater interest in the goods than the seller had.

Question 3

What are the elements to prove the offence of Accessing computer system for dishonest purposes

Answer 3

s 249 CA 61, (1) 7 Years, (2) 5 years

(1) Directly or Indirectly, access any computer system and thereby, dishonestly or by deception, and without claim of right -
(a) obtains any property, privilege, service, pecuniary advantage, benefit or valuable consideration; or
(b) causes loss to any other person.

(2) the same as above
(a) to obtain any…
(b) to cause loss to…

Question 4

Define computer system

Answer 4

Computer system is also widely defined to include 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
LexisNexis

Question 5

Explain legislation relating to Propensity Evidence

Answer 5

s 40 Evidence Act 2006
Propensity evidence may be admissable in a prosecution for causing loss by deception. Propensity may also be used to disprove a defence of mistake or innocent intention.

Question 6

What is required to prove a false representation?

Answer 6

• 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 was false in a material particular OR
• was reckless to whether it was false in a material particular

Question 7

When can goods be said to have been ‘obtained’ by a defendant?

Answer 7

s 217 CA 61 interpretation

Obtain, in relation to any person, means obtain or retain for themselves​ or for any other person

Question 8

Representations can be made in three ways, or a combination of three ways. What are these?

Answer 8

• orally
• documentary
• by conduct

Question 9

What are the differences between ‘obtaining property by deception’ and ‘theft’ with regard to possession?

Answer 9

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 on.

Question 10

Under what circumstances does a person keep title of goods if they have fraudulently induced another to hand over goods with the intention that title will pass?

Answer 10

If the original purchaser subsequently sells the goods to an innocent buyer (one who is not aware of the defect in title) then the title has been made legal.

Question 11

How can you avoid title?

Answer 11

• communication to B. The taking of all possible steps to bring it to B’s notice.
• by advising the Police that the vehicle was obtained by fraud.

Question 12

When is forgery complete?

Answer 12

As soon as the document is made; either with the intent:
- of using it to obtain any property, privilege, service, pecuniary advantage, benefit, or valuable consideration
OR
- that it in any way be used or acted upon, whether in New Zealand or elsewhere, as genuine.

Question 13

Define Claim of Right, Section 2 CA 61

Answer 13

s2 CA 61
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 against which the offence is alleged to have been committed.

Question 14

Define the term ‘access’ under s 248

Answer 14

means instruct, communicate with, store data in, receive data from, or otherwise make use of any of the resources of the computer system.

Question 15

Explain what actions would involve accessing a computer system

Answer 15

access requires that the person instructing or communicating with the computer system has some form of connection with the computer system through which instructions or communications may pass.

Question 16

For a charge of Accessing a computer system for dishonest purpose under s 249(2), to be successful, what intents must be proved?

Answer 16

it must be proved that the offender;

(a) obtained any property, privilege, service, pecuniary advantage, benefit or valuable consideration; OR
(b) causes loss to any other person

Question 17

Explain the distinction between offences under section 249(1) and 249(2)

Answer 17

the distinction is reflected in the words ‘thereby’ and ‘obtains’.

s 249(1) is directed at a situation where a person has actually accessed a computer system, obtains the offending material or causes loss, whereas

s 249(2) is directed at someone who actually accesses the computer with that intent regardless of the result.

Question 18

Describe a situation when a person may not be physically present at a computer to access it

Answer 18

someone who gains access via software that remotely infects computers

Question 19

a

Answer 19

a