Deception

Question 1

Section 228(1) CA1961

Answer 1

Dishonestly Taking or Using a Document

Every one is liable to imprisonment for a term not exceeding 7 years who, with intent to obtain any property, service, pecuniary advantage, or valuable consideration,—

(1) (a) dishonestly and without claim of right, takes or obtains any document; or
(1) (b) dishonestly and without claim of right, uses or attempts to use any document.

Question 2

Section 217 CA1961 - Obtain

Answer 2

Obtain, in relation to any person, means obtain or retain for himself or herself or for any other person

Question 3

Section 2 CA1961 - Property

Answer 3

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

Question 4

Section 217 CA1961 - Dishonestly

Answer 4

Dishonestly, 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.

Dishonesty is a state of mind and the fact that a person acted dishonestly can be inferred from circumstances.
A jury can infer that a person had a dishonest state of mind unless he or she can raise a reasonable doubt on the basis of relevant but mistaken belief that:
- act/omission was expressly or impliedly consented to by a person entitled to give such consent, or
- act/omission was authorised by a person entitled to authorise it

Question 5

Section 2 CA1961 - Claim of Right

Answer 5

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 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 6

Section 219(4) CA1961 - Taking

Answer 6

For tangible property, theft is committed by a taking when the offender moves the property or causes it to be moved.

Question 7

Section 72 CA1961

Answer 7

Definition of attempts

(1) Every one 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.
(2) The question whether an act done or omitted with intent to commit an offence is or is not only preparation for the commission of that offence, and too remote to constitute an attempt to commit it, is a question of law.
(3) An act done or omitted with intent to commit an offence may constitute an attempt if it is immediately or proximately connected with the intended offence, whether or not there was any act unequivocally showing the intent to commit that offence.

Question 8

Section 240 CA1961

Answer 8

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, or any privilege, service, pecuniary advantage, benefit, or valuable consideration, directly or indirectly; or
(b) in incurring any debt or liability, obtains 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 other person.

(1A) Every person is liable to imprisonment for a term not exceeding 3 years who, without reasonable excuse, sells, transfers, or otherwise makes available any document or thing capable of being used to derive a pecuniary advantage knowing that, by deception and without claim of right, the document or thing was, or was caused to be, delivered, executed, made, accepted, endorsed, or altered.

(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 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 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 9

Section 240(2) CA1961

Answer 9

Deception

(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 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 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 10

Section 241 CA1961

Answer 10

Punishment of obtaining by deception or causing loss by deception

Every one who is guilty of obtaining by deception or causing loss by deception is liable as follows:

(a) if the loss caused or the value of what is obtained or sought to be obtained exceeds $1,000, to imprisonment for a term not exceeding 7 years:
(b) if the loss caused or the value of what is obtained or sought to be obtained exceeds $500 but does not exceed $1,000, to imprisonment for a term not exceeding 1 year:
(c) if the loss caused or the value of what is obtained or sought to be obtained does not exceed $500, to imprisonment for a term not exceeding 3 months.

Question 11

Section 40, Evidence Act 2006

Answer 11

Propensity rule

(1) In this section and sections 41 to 43, propensity evidence -
(a) means evidence that tends to show a person’s 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.

(2) A party may offer propensity evidence in a civil or criminal proceeding about any person.

(3) However, propensity evidence about -
(a) a defendant in a criminal proceeding may be offered only in accordance with section 41 or 42 or 43, whichever section is applicable; and
(b) a complainant in a sexual case in relation to the complainant’s sexual experience may be offered only in accordance with section 44.

(4) Evidence that is solely or mainly relevant to veracity is governed by the veracity rules set out in section 37 and, accordingly, this section does not apply to evidence of that kind.

Question 12

Section 43 Evidence Act 2006

Answer 12

Propensity evidence offered by prosecution about defendants

(1) 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.
(2) When assessing the probative value of propensity evidence, the Judge must take into account the nature of the issue in dispute

(3) When assessing the probative value of propensity evidence, the Judge may consider, among other matters, the following:
(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 and the acts, omissions, events, or circumstances 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 and the acts, omissions, events, or circumstances 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 paragraph (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 and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried are unusual.

(4) When assessing the prejudicial effect of evidence on the defendant, the Judge must consider, among any other matters,—
(a) whether the evidence is likely to unfairly predispose the fact-finder against the defendant; and
(b) whether the fact-finder will tend to give disproportionate weight in reaching a verdict to evidence of other acts or omissions.

Question 13

Section 246(4) CA1961

Answer 13

Receiving after restoration to owner

(4) If-
(a) any property stolen or obtained by any other imprisonable offence has been returned to the owner; or
(b) legal title to any such property has been acquired by any other person, -
a subsequent receiving of it is not an offence, even though the receiver may know that the property had previously been stolen or obtained by any other imprisonable offence.

Question 14

Section 25 Sale of Goods Act 1908

Answer 14

Where the seller of goods has a voidable title thereto, but his title has not 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 seller’s defect of title.

Question 15

Section 220 CA1961

Answer 15

Theft by person in special relationship

(1) This section applies to any person who has received or is in possession of, or has control over, any property on terms or in circumstances that the person knows require the person—
(a) to account to any other person for the property, or for any proceeds arising from the property; or
(b) to deal with the property, or any proceeds arising from the property, in accordance with the requirements of any other person.

(2) Every one to whom subsection (1) applies commits theft who intentionally fails to account to the other person as so required or intentionally deals with the property, or any proceeds of the property, otherwise than in accordance with those requirements.
(3) This section applies whether or not the person was required to deliver over the identical property received or in the person’s possession or control.
(4) For the purposes of subsection (1), it is a question of law whether the circumstances required any person to account or to act in accordance with any requirements.

Question 16

Section 256 CA1961

Answer 16

Forgery

(1) Every one 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.
(2) Every one is liable to imprisonment for a term not exceeding 3 years who makes a false document, knowing it to be false, with the intent that it in any way be used or acted upon, whether in New Zealand or elsewhere, as genuine.
(3) Forgery is complete as soon as the document is made with the intent described in subsection (1) or with the knowledge and intent described in subsection (2).
(4) Forgery is complete even though the false document may be incomplete, or may not purport to be such a document as would be binding or sufficient in law, if it is so made and is such as to indicate that it was intended to be acted upon as genuine.

Question 17

Section 257 CA1961

Answer 17

Using forged documents

(1) Every one is liable to imprisonment for a term not exceeding 10 years who, knowing a document to be forged, -
(a) uses, the document to obtain any property, privilege, service, pecuniary advantage, benefit, or valuable consideration; or
(b) uses, deals with, or acts upon the document as if it were genuine; or
(c) causes any other person to use, deal with, or act upon it as if it were genuine.

(2) For the purposes of this section, a document made or altered outside New Zealand in a manner that would have amounted to forgery if the making or alteration had been done in New Zealand shall be deemed to be a forged document

Question 18

Section 258 CA1961

Answer 18

Altering, concealing, destroying, or reproducing documents with intent to deceive

(1) Every one is liable to imprisonment for a term not exceeding 10 years who, with intent to obtain by deception any property, privilege, service, pecuniary advantage, benefit, or valuable consideration, 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.

(2) An offence against subsection (1) is complete as soon as the alteration or document is made with the intent referred to in that subsection, although the offender may not have intended that any particular person should—
(a) use or act upon the document altered or made; or
(b) act on the basis of the absence of the document concealed or destroyed; or
(c) be induced to do or refrain from doing anything.

Question 19

Section 259 CA1961

Answer 19

Using altered or reproduced document with intent to deceive

(1) Every one is liable to imprisonment for a term not exceeding 10 years who, knowing any document to have been made or altered in the manner and with the intent referred to in section 258, with intent to obtain by deception any property, privilege, service, pecuniary advantage, benefit, or valuable consideration, or to cause loss to any other person,-
(a) uses, or deals with, or acts upon, the document; or
(b) causes any person to use or deal with, or act upon, the document.

(2) For the purposes of this section, it does not matter that the document was altered or made outside New Zealand.

Question 20

Section 249 CA1961

Answer 20

Accessing computer system for dishonest purpose

(1) Every one is liable to imprisonment for a term not exceeding 7 years who, directly or indirectly, accesses 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) Every one is liable to imprisonment for a term not exceeding 5 years who, directly or indirectly, accesses any computer system with intent, dishonestly or by deception, and without claim of right,—
(a) to obtain any property, privilege, service, pecuniary advantage, benefit, or valuable consideration; or
(b) to cause loss to any other person.

(3) In this section, deception has the same meaning as in section 240(2).

Question 21

Section 250 CA1961

Answer 21

Damaging or interfering with a Computer System

(1) Every one is liable to imprisonment for a term not exceeding 10 years who intentionally or recklessly destroys, damages, or alters any computer system if he or she knows or ought to know that danger to life is likely to result.

(2) Every one is liable to imprisonment for a term not exceeding 7 years who intentionally or recklessly, and without authorisation, knowing that he or she is not authorised, or being reckless as to whether or not he or she is authorised, -
(a) damages, deletes, modifies, or otherwise interferes with or impairs any data or software in any computer system; or
(b) causes any data or software in any computer system to be damaged, deleted, modified, or otherwise interfered with or impaired; or (c) causes any computer system to
(i) fail; or
(ii) deny service to any authorised users.

Question 22

Section 252 CA1961

Answer 22

Accessing computer system without authorisation

(1) Every one is liable to imprisonment for a term not exceeding 2 years who intentionally accesses, directly or indirectly, any computer system without authorisation, knowing that he or she is not authorised to access that computer system, or being reckless as to whether or not he or she is authorised to access that computer system.
(2) To avoid doubt, subsection (1) does not apply if a person who is authorised to access a computer system accesses that computer system for a purpose other than the one for which that person was given access.

Question 23

Intent to obtain

Answer 23

The defendant must intent to obtain, and he or she must intent to obtain by deception

Question 24

R v CARA

service

Answer 24

Service is limited to financial or economical value, and excludes privileges or benefits.

Question 25

HAYES v R
(pecuniary advantage)

+ examples

Answer 25

Pecuniary advantage is anything that enhances the accused’s financial position.
It is that enhancement which constitutes the element of advantage.

• cash from stolen goods
• cash/goods obtained by a credit card
• student ID discount
• avoiding paying debt

Question 26

Valuable consideration

+ examples

Answer 26

Anything capable of being valuable consideration, whether of monetary kind of of any other kind.
In short, money or money’s worth.

• monetary payment for goods
• goods given in return for service
• false invoice to receive payment for goods never supplied

Question 27

Privilege or Benefits

+ examples

Answer 27

Means special right or advantage.
Not limited to pecuniary nature.

• using someone else’s gym card
• access medical service
• withdrawing a charge
• reducing sentence for an offence

Question 28

HAYES v R

dishonesty

Answer 28

The question whether a belief is actually held, not whether that belief is reasonable.
However, reasonableness may be relevant as evidence on the issue of whether the belief was actually held.

Question 29

R v MISIC

document

Answer 29

Essentially a document is a thing which provides evidence of information or serves as a record.

Question 30

Uses / Attempts to use

what must be proved

Answer 30

The prosecution must prove that the offender used or attempted to use a document with intent to obtain property, service, pecuniary advantage or valuable consideration.
“Use” may include a single action or continuing action.

Question 31

HAYES v R

unsuccessful use

Answer 31

An unsuccessful use of a document is as much use as a successful one.
An unsuccessful use must not be equated conceptually with an attempted one.
The concept of an attempt relates to the use, not to the ultimate obtaining of a pecuniary advantage, which is not a necessary element of an offence.
Because the use does not have to be successful, it may be difficult to draw a clear line between use and attempted use.

Question 32

Ingredients - Use/Attempted to use document

Answer 32

• with intent to obtain
• any property, service, pecuniary advantage or valuable consideration
• dishonestly and without claim or right
• uses or attempts to use
• any document

Question 33

Representation

Answer 33

Representation includes a representation about a past past or present fact, or future event, or existing intention, knowledge, belief or opinion or other states of mind.

Representation must be capable of being false, so it must contain a proposition of fact.

Question 34

False Representation

Answer 34

The representation must be false and the defendant must know or believe that it is false in a material particular.
Absolute certainty is not required and wilful blindness will suffice.
The falsity of representation must be proved.
If there is more than one false representation, each should be included separate count.

Question 35

R v MORLEY

representation of existing facts

Answer 35

Representation must relate to a statement of existing fact, rather than a statement of future intention.

Question 36

False Representation

what must be proved

Answer 36

1. Intent to deceive
2. There was a representation by a defendant
3. The representation was false
4. The defendant:
   - knew it was false in a material particular, or
   - was reckless as to whether it was false in a material particular

Question 37

R v MORLEY

intention to deceive

Answer 37

An intention to deceive requires that the deception is practiced in order to deceive the affected party.
Purposeful intent is necessary and must exist at the time of the deception.

No offence is committed unless:
- 240(2)(a) false representation
- 240(2)(b) non disclosure
- 240(2)(c) fraudulent device, trick, stratagem
Used by the defendant with the intent to deceive ghost victim, or with knowledge that the victim is to be deceived.

Question 38

Semister and Brookbanks (Intention to deceive v Recklessness)

Answer 38

It is insufficient that the deception is done in the mere awareness, without so intending, that the victim may be deceived. That would be a case of recklessness rather than intent, and falls outside the scope of s.240(2).

Question 39

Intent

Answer 39

In a criminal law context there are two specific types of intention in an offence.
Firstly, there must be an intent to effect an act.
Secondly, there must be an intent to get a specific result.

Question 40

Examples of False Representation

Answer 40

Orally (by words):
- verbally claiming to own goods that in fact subject to a hire purchase agreement.

By Conduct:
- representing oneself to be a collector for charity by appearing to be carrying an official collection bag.

Documentary:
- presenting a false certificate of qualification, or completing a valueless cheque on an account in which there are no funds knowing the cheque will not be honoured.

Question 41

Silence

Answer 41

Silence / non-disclosure are not representations, unless an incorrect understanding is implied and the defendant has failed to negate that incorrect understanding.
(False price tag on an item, if the defendant knows the correct price but doesn’t point it out)
(Another example - price label swapping)

Question 42

Knowledge

• the defendant must know…
• Semister and Brookbanks…
• Knowledge can be established…

Answer 42

The defendant must know that:
1. Representation was false in a material particular, or
2. Was reckless as to that falsity
Absolute certainty is not required.

Semister and Brookbanks (knowledge)
Knowing means knowing or correctly believing.
The defendant may believe something wrongly but can not know something that is false.

Knowledge can be established by:

1. Admission
2. Implication from surrounding circumstances
3. Propensity evidence

Wilful blindness is equated to knowledge.

Question 43

R v MALLET (material particular)

Answer 43

A matter will be a “material particular” if it is something important or something that matters.

Question 44

Material particular

- what must be proved…

Answer 44

Material particular is something important, essential or relevant detail of item.

Prosecution must prove that:

1. The defendant knows or believes that his representation is false in a material particular, or
2. Be reckless as to whether it is false

Question 45

Recklessness

Answer 45

Acting recklessly means consciously and deliberately taking an unjustifiable risk.
It must be proved not only that the defendant was aware of the risk but proceeded regardless, but also that it was unreasonable for him to do so.
The defendant may be liable if they are reckless as to whether the representation was false in a material particular. This means that the defendant was conscious of the risk that the representation was false in a material particular.

Question 46

R v HARNEY(recklessness)

Answer 46

Recklessness means conscious and deliberate taking of an unjustified risk. In NZ it involves proof that the consequences complained of could well happened together with an intention to continue the course of conduct regardless of the risk.

Question 47

Recklessness - Subjective & Objective Test

Answer 47

Recklessness - Subjective & Objective Test

1. The defendant consciously and deliberately ran an unjustified risk (Subjective)
2. The risk was one that was unreasonable to take in the circumstances as they were known to the defendant (Objective)

Question 48

Omission

Answer 48

Omission means inaction (not acting).
It may be a conscious decision not to do something or not giving thought to the matter at all.

Question 49

Duty to disclose

S.240(2)(b) requires proof that…

Answer 49

S.240(2)(b) requires proof that:

1. There was a material particular to be disclosed
2. The defendant had a duty to disclose that particular
3. The defendant failed to perform that duty with intent to deceive

Question 50

Fraudulent device, trick, strategem

Answer 50

Device / trick / strategem must be fraudulent, i.e. dishonest and accompanied by the intent to deceive.
Device: plan / scheme / trick
Trick: action or scheme undertaken to fool of deceive
Strategem: plan or scheme for deceiving an enemy.

Question 51

Ownership / Possession of / Control over (how can be obtained)

Answer 51

Ownership, possession of, control over can be obtained directly or indirectly.

Question 52

Obtains Ownership / Possession / Control

Answer 52

Goods are obtained if they come under person’s control, even if the person does not have physical possession of them.
Example:
In case of agreement of sending an item, the ‘obtaining’ is complete at the time of posting the item.

Question 53

Theft v Obtaining by Deception

Answer 53

In case of theft, the property is obtained without owner’s permission and the title is not passed on.

Question 54

R v COX (possession)

Answer 54

Possession involves two elements.
The first, the physical element, is actual or potential physical custody or control.
The second, the mental element, is a combination of both knowledge and intention: knowledge in the sense of awareness by the accused that the substance is in his possession and an intention to exercise possession.

Question 55

Special Interest

Answer 55

A person, from whom the goods were obtained, can have special interest in the goods without having actual ownership of them.

Question 56

Control

Answer 56

To control something means to exercise authoritative or dominative influence over it.
The defendant needs not possess something to control it.
The prosecution doesn’t have to prove that the defendant was in actual possession of the item (the control may be exercised through an agent).

Question 57

Adams on Criminal Law (possession vs control)

Answer 57

It is insufficient that the dishonestly obtained property was found at the premises of which the defendant had control. It must be proved that the defendant did in fact exercise some control over particular property.

Question 58

Debt or liability incurred

Answer 58

Debt or liability (incurred) must be legaly enforceable (i.e. if contact is void or illegal, there is no offence)
Debt - money owing from one person to another
Liability - legaly enforceable financial obligation to pay (i.e. cost of meal)

Question 59

Section 2410(1)(b) what must be proved

Answer 59

1. Identify of the suspect
2. The suspect:
   - by deception and without claim of right
   - in incurring any debt or liability
   - obtained credit

Question 60

Obligation to pay

FISHER v RAVEN (Credit)

Answer 60

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 to supply services or goods.

Question 61

Obtaining credit (examples)

Answer 61

1. Obtaining money on loan
2. Extending existing overdraft
3. Renting / leasing a dwelling, etc

Question 62

Obtaining credit - intention to deceive

Answer 62

Gaining credit is not of itself unlawful, unless it’s accompanied by intent to deceive.

Question 63

Intention to deceive

• Timing…
• R v MCKAY

Answer 63

The intention to deceive must exist at the time the deception is perpetrated.
A decision not to repay made after the credit is obtained, is not sufficient.

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 an intent to deceive.

Question 64

Credit - Intangible thing

Answer 64

Credit is an intangible thing and the credit obtained must be in respect of a monetary obligation.
In case where the defendant obtains a non - monetary benefit, the appropriate charge is under s.240(1)(a)

Question 65

Continuing representation

Answer 65

A representation (words or conduct) may be of continuing effect.
I.e. Enter restaurant to order a meal is a representation to follow a normal practice to pay for the meal at the appropriate time. If during the meal a decision to avoid payment is formed, the representation becomes false and obtaining the food them comes within s.240

Question 66

Delay / Non payment of debt

Answer 66

Intent to deceive is NOT disclose merely because of:
1. Delay or non payment of debt
2. Inability to perform a bona fide intention
Inability to pay a debt through an unforeseen circumstances (loss of money or oversight) is not deceit.

Question 67

Payment withheld

Answer 67

Intention to deceive is NOT exist where a payment is withheld because of genuine dissatisfaction with the service.
(Refusal to pay for a meal because of its quality - must be prior to meal is fully consumed)

Question 68

Hire purchase

Obtaining by deception and theft by conversion

Answer 68

Where the offender obtains the goods by false representation - deception.
Where the offender later sells the goods to another - theft by conversion (as the offender never receives title for the goods fraudulently obtained).

Question 69

Induces

Answer 69

To persuade, bring about our give rise to.

Another person must be induced or caused to deliver over, execute, make, accept, endorse, destroy or alter the document or thing.

Question 70

Prove of inducement

Answer 70

Proved by direct evidence from a victim saying:

1. False representation was believed, and
2. As a consequence of that belief, the victim parted with his / her money.

If there is no direct evidence from the victim, a reasonable inference can be drawn in certain circumstances that the victim was induced by the representation to part with the money.

Question 71

R v LAVERTY (False representation caused inducement)

Answer 71

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.

Where the victim does not believe in the false representation but still parts with the property, it can not be said that the property was obtained by deception.
The act must be induced by a belief in the truth of the representation.

Question 72

Causes loss

Answer 72

The accused must caused the loss.
The accused’s act must be substantial to cause delivery, execution (etc) of any document capable of delivering pecuniary advantage.

Question 73

Deliver over / execute / endorse / alter / accept

Answer 73

Driver over - to surrender up someone or something
Execute - to put a course of action into effect
Endorse - to write or sign on a document
Alter - to change in character or composition
Accept - to receive something

Question 74

Thing

Answer 74

Must be tangible and must be capable of deriving pecuniary advantage

Question 75

Loss

- R v Morley…

Answer 75

Financial detriment to the victim.
The loss must be direct.
Indirect losses (expectation loss / loss of bargain) is not included.
It is not necessary that the person who suffers the loss is a person who is deceived

R v MORLEY (Loss)
Loss should be assessed by the extend to which the complainant’s position before the deception had been diminished or impaired.

Question 76

Loss - What must be proved

Answer 76

1. The loss was caused by deception
2. It was reasonably foreseeable some more than trivial loss would occur, but
3. Need not prove the loss was intentionally caused.

There must be loss to any person, but need not be any benefit to anyone.

Question 77

To any person

Answer 77

Includes not only real people but also companies and other organisations.

Question 78

Admissibility and Relevance of propensity evidence

Answer 78

Propensity evidence is admissible in cases of deception where there is a sufficiently strong connection between the offence.
Propensity evidence is subject to the admissibility rules under s.7 Evidence Act 2006 (evidence is relevant if it has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding.

Question 79

R v SHARMA (probative value vs prejudicial effect)

Answer 79

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

Question 80

Propensity evidence vs Relevant evidence

Answer 80

Persistent dishonesty across the board would not in itself bring the propensity rule into play.
It is more likely to be deployed in cases involving specific offences with discernable pattern.
The court will decide whether the evidence is propensity or simply relevant.

Question 81

Concept of Title

Answer 81

Title is a right of claim to the ownership of the property. Legal right to the property.

Question 82

Theft vs Obtaining by Deceit

Answer 82

A thief never gets title.

A person who by deception induces another to hand over the goods, gets title.

Question 83

Voidable Title

Answer 83

A title obtained by deception, fraud, duress, misrepresentation is voidable title.
Voidable title can be avoided by the seller.

(If an innocent purchaser buys goods before the title had been avoided, they entitled to the good title)

Until title is avoided, the offender has a voidable title and can confer a good title on anyone who purchases the goods from him in good faith.

Question 84

Title Scenarios

Answer 84

1:
B buys a car from A using a cheque.
B gets possession and title.

2:
B steals a car from A.
B gets possession but not title.

3:
B buys a car from A using a valueless cheque.
B gets possession and voidable title.
Voidable title is a good title until it is voided / rended invalid by A.

4:
B sells a car to C (innocent buyer) before A avoids the title.
C obtains possession and good title and gets to keep the car.

5:
B sells a car to C (innocent buyer) after A avoided the title.
C gets possession but not the title and does not get to keep the car.

Question 85

Avoiding the title

Answer 85

To avoid the title, the complainant must do one of the following:

1. Communicate with the offender
2. Take all other possible steps to bring it to the offender’s notice (writing a letter)
3. Advise the police that an item has been obtained by fraud / deception

Question 86

Passing of title

Answer 86

Where there is a contract for the sake of specific goods between the parties, title passes when it was intended to pass by the parties.

If in doubt - contact legal section.

Question 87

Legal Title

Answer 87

A voidable title is still a legal title under s.246(4).
When offender sells the goods to an innocent buyer before the title is voided, then the title becomes legal.
This is to protect an innocent buyer from becoming a liable receiver.

Question 88

Title voided

Answer 88

When the goods sold after the title is voided, then subsequent receiving of the goods is an offence.
The receiver can be charged if they received the goods in bad faith or knew about the defect in the title.
The receiver can be charged as a party to the false representation or obtaining by deception.

Question 89

Possession vs Title

Answer 89

Goods are capable of being received, where possession is only obtained by false representation.

Question 90

Title - money

Answer 90

Money is a legal currency.

Whoever receives money innocently in return for value given, gets a good title even if the money have been stolen.

Question 91

Obtaining by Deception vs Theft by Conversion

• differences
• deception / theft / theft by conversion

Answer 91

Difference is in two concepts:

1. Possession
2. Ownership

Deception: a victim freely gives an offender possession and ownership of the goods (subject to tiyle)
Theft: an offender takes the goods without victim’s consent or knowledge (obtains possession but not title)
Theft by conversion: subsequent conversion (i.e. selling) of the goods obtained by deception

Example:
Offender hires the goods by false representation and then sells the goods.

Question 92

Theft by person in special relationship - the offence is committed:

Answer 92

The offence is committed when the defendant intentionally:

1. Failed to account to any other person for the property received by him / her
2. Failed to account to any other person for the proceeds of property received by him / her
3. Dealt with property received by him / her otherwise than in accordance with the requirements of some other person
4. Dealt with the proceeds of the property received by him / her otherwise than in accordance with the requirements of some other person.

Question 93

Theft by person in special relationship - what must be proved:

Answer 93

1. That he / she have received property on terms or in circumstances which, to the defendant knew required the defendant to account to any other person or to act in accordance with the requirements of another person, and
2. That the defendant intentionally departed from the relevant obligation.

Question 94

Theft by person in special relationship - mental element

Answer 94

There are two different mental elements.
1:
The defendant must know that the acquisition of the property was on terms which require the defendant to account for the property or its proceeds, or to deal with the property / proceeds in accordance with the direction of another person. The precise details of those obligations must be known.
2:
The defendant must have intentionally departed from his or her obligation.
The mere fact of intentionally failing to perform one’s obligations is sufficient for liability.

Question 95

Forgery - Use of document

Answer 95

The document does not have to be used as long as the intention to use it is present.
The defendant must know that the document is false.

Question 96

Forgery - False Document

Answer 96

For the document to be forged it:

1. Must be a document, and
2. Must be false (must lie about itself or intended to convey a lie)

Question 97

Forgery - Material alteration

Answer 97

An alteration is a material alteration if it increases the value or negotiability of a document / instrument.
A document can be false if any material alteration made to it, including:
1. Additions / Deletions
2. Insertions / Erasures
3. Removal of material or otherwise

Question 98

Forgery - Photocopy of False Document

Answer 98

The photocopy claims merely to be a copy and therefore does not ‘lie about itself’.

Question 99

Forgery - Specific Intent

Answer 99

The prosecution must prove that the defendant knew the document was false and:

1. To use the false document to obtain, or
2. That the false document be used or acted upon as genuine.

The defendant must intent to deceive using a false document.

Question 100

Forgery - No financial or specified advantage is required.

Answer 100

Under s.256(2) the defendant intended the false document be used to mislead.

Question 101

Forgery - Examples

Answer 101

1. Writing an examination papers in the name of another
2. False completing a statement of service on a witness summons
3. Pre - dating a deed to give it priority

Question 102

Using Forged Document - Knowledge

The following must be proved…

Answer 102

The following must be proved:

1. The document was false
2. The defendant knew the document was false (at the time of using / dealing with / acting upon)
3. The defendant knew the document had been made with knowledge and intention required under s.256

Question 103

Alteration, Concealment, Destruction, Reproduction

Answer 103

Alteration:
Changing a document in some manner

Concealment:
R v BOYD
a. Actual hiding of a document
b. Denial of its existence
c. Withholding of it in the face of a positive duty to produce it

Destruction:
To end the existence of.

Reproduction:
To make a copy or representation or imitation

Question 104

Cause of Alteration, Concealment or Destruction

Answer 104

The defendant may cause the document to be altered, concealed or destroyed by either:

1. Use of computer program or other device, or
2. Arranging for the necessary Acton to be taken by another person

Question 105

Section 258 - Mental Element

Answer 105

There are two alternative mental elements:

1. To obtain by deception (property, privilege, service, pecuniary advantage, benefit, valuable consideration) or
2. To cause loss to any other person (need not be done through deception)

Question 106

Forgery vs Altering Documents

Answer 106

The difference is in:
1. Intent
Forgery - intent to deceive
Altering - intent to obtain by deception
2. Document
Forgery - must be false document (as defined in section 255 C.A.1961)
Altering - can be any document

Question 107

Using Altered or Reproduced Document With Intent to Deceive - Conduct required

Answer 107

The prosecution must prove that the document had been altered with intent to deceive.
However, it is not necessary to identify the person who altered it.

Question 108

Using Altered or Reproduced Document With Intent to Deceive - Mental Element

Answer 108

1. The defendant must know that the document had been altered with intent to deceive.
2. The defendant intended to obtain by deception or to cause loss to any other person.
3. The defendant intended to obtain, retain or to cause loss ‘by deception’ (Intention to deceive another letdown by a lie or deliberate failure to comply with the duty to disclose the truth)

Question 109

Computer Crime - Access

Answer 109

Covers all interaction with a computer, such as:

1. Using computer
2. Remote access (viewing websites, using virus, etc)
3. Store data in / Receive data from, etc

A person communicating with a computer must have some form of connection with that computer system through which the communication may pass.

Question 110

Computer Crime - Computer System

Answer 110

Includes all related input, output, processing, storage, software, communication facility, stored data.
Can include a computer or a network of computers including the Internet.

Question 111

Computer Crime - Computer

Answer 111

Includes a desktop computer, laptop, server.
The court will consider the ordinary usage of the devices such as microprocessor, etc at the time of the offence to determine if it comes under this definition.

Question 112

249(1) vs 249(2)

Answer 112

249(1): A person accesses a computer system and obtains the offending material.
249(2): A person accesses a computer system with the necessary intent, restatement of the result.

Question 113

Computer Crime - Benefit is not limited to financial or pecuniary advantage

Answer 113

Benefit bears its natural meaning of any advantage and is not limited to financial or pecuniary advantage.
Includes access to someone’s e-mails (Police v LE ROY)

Question 114

Computer Crime - Dishonestly

Answer 114

Dishonesty must relate to the conduct in obtaining access to a computer system.

Question 115

Computer Crime - Loss

R v BILLINGSLEY

Answer 115

The person suffering the loss does not have to be aware of the loss at the time of the offence.

Question 116

250(1) vs 250(2)

Answer 116

250(1): relates to damaging/altering computer system that would endanger life
250(2): relates to unauthorised damaging computer system.
The defendant must know that they are not authorised or be reckless as to this fact.

Question 117

Computer Crime - Without Authorisation

Answer 117

The defendant intentionally gains access to a computer system, directly or indirectly, where the access to that computer system has not been authorised.

Question 118

Computer Crime - Offending from a remote computer

Answer 118

The offender does not have to be physically present in order to access computer system.

Question 119

Computer Crime - Authorised Access for Dishonest Purpose

Answer 119

Where the offender accesses a computer system for the purpose other than the one he was given access for, the appropriate charge is under s.249 if the activity involves dishonest purpose.