DECEPTION

Question 1

What is held in Hayes v R? (Pecuniary Advantage)

Answer 1

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

Question 2

What is held in Hayes v R? (Reasonableness)

Answer 2

The question is whether the 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 3

What is held in R v Misic

Answer 3

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

Question 4

What is held in Hayes v R? (Attempts)

Answer 4

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 attempt relates to use not to the ultimate obtaining of a pecuniary advantage, which is not a necessary element of the 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 5

What is held in R v Morley (Purposeful intent)

Answer 5

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.

Question 6

What is held in R v Morley (Representation)

Answer 6

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

Question 7

What is held in R v Harney (Recklessness)

Answer 7

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

Question 8

R v Cox (Possession)

Answer 8

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 knowledge and intention: knowledge in the sense of an awareness by the accused that the substance is in his possession and an intention to exercise possession.

Question 9

Fisher v Raven (Credit)

Answer 9

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 10

R v McKay (Credit)

Answer 10

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 11

R v Laverty (False representation)

Answer 11

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 12

What is the definition of deception as set out in Section 240(2) of the Crimes Act 1961?

Answer 12

(a) Means a false representation, whether oral, documentary, or by conduct where the person making the representation intends to deceive any other person and:
- Knows that it is false in a material particular, or
- 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 13

What is required to prove a “false representation”?

Answer 13

• That there was an intent to deceive
• That there was a representation by the defendant
• That the representation was false and the defendant either:
  1) knew it to be false in material particular or
  2) was reckless whether it was false in material particular

Question 14

When can goods be said to have been “obtained” by a defendant?

Answer 14

Section 217 Crimes Act 1961

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

Question 15

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

Answer 15

• Orally
• Documentary
• By conduct

Question 16

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

Answer 16

An important distinction between theft and obtaining by deception is that in theft the property is obtained without the owner’s permission and title is not passed on.

Question 17

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 17

A person can keep title of goods fraudulently obtained when:
- Section 264(4) is an exception to the rule that you cannot get a better title that the seller. 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 18

How can you avoid title?

Answer 18

Title can be avoided by:

• Communication to B. The taking of all possible steps to bring it to B’s notice eg by writing a letter, text, cell phone call etc
• By advising the police that the vehicle was obtained by fraud

Question 19

When is forgery complete?

Answer 19

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)

Question 20

Define Claim or right under section 2 of the Crimes Act 1961

Answer 20

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 any matter of law other than the enactment against which the offence is alleged to have been committed.

Question 21

Define the term “access” under Section 248

Answer 21

The term access in relation to any computer system, means instruct, communicate with, store data in, receive data from, or otherwise make use of any of these resources of the computer system.

Question 22

Explain what actions involve accessing a computer system

Answer 22

Access requires 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 23

For a charge of Accessing A Computer System For Dishonest Purpose to be successful, what intents must be proved?

Answer 23

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

Question 24

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

Answer 24

Distinction between these offences is reflected in the words "thereby" and "obtains"
Section 249(1) is directed at the situation where a person has actually accessed a computer system , obtains the offending material or causes loss whereas Section 249(2) is directed at someone who actually access the computer system with that intent regardless of the result.

Question 25

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

Answer 25

A person may not be physically present at a computer but can gain access to it via software that remotely infects computers.

Question 26

What is the definition of property as held in section 2 of the Crimes Act 1961?

Answer 26

Property includes any real or personal property, any estate or interest in any real or personal property, money, electricity, any dept and anything in action, and any other claim or right

Question 27

What is the definition of service?

Answer 27

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

Question 28

What is the definition of valuable consideration?

Answer 28

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

Question 29

What is the definition of Dishonestly as held in section 217 of the Crimes Act 1961?

Answer 29

Dishonestly in relation to an act or omission, meas done or omitted without 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.

Question 30

The Jury can infer that the defendant had a dishonest mind unless the defendant can raise a reasonable doubt on the basis of a “relevant but mistaken belief”

What are the two mistaken beliefs in reference to this?

Answer 30

• that the act or omission was expressly or impliedly consented to by a person entitled to give consent
• that the act or omission was authorised by a person entitled to authorise it.

Question 31

What is the definition of Claim Of Right as defined under section 2 of the Crimes Act 1961?

Answer 31

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, mistaken belief, or any matter of law other than the enactment against which the offence is alleged to have been committed.

Question 32

What is held under section 214(4) of the Crimes Act in relation to the element of “taking”

Answer 32

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

Question 33

What is the definition of document as defined in section 217 of the Crimes Act 1961?

Answer 33

Document means a document or a part of a document in any form and includes without limitation:

(a) any paper or other material used for writing or printing that is marked with matter capable of being read
(b) any photograph or photograph negative, plate, slide, film, or micro film, or any photostatic negative
(c) any disc, tape wire, sound track, card, or other material or device in or on which information, sounds, or other data are recorded, stored (whether temporarily or permanently) or embodied so as to be a capable with or without the aid of some other equipment, of being reproduced.
(d) any material by mean of which information is supplied, whether directly or by means of any equipment, to any device used for recording or storing or processing information.
(e) an material derived, whether directly or by means of any equipment, from information recorded or stored or processed by any device used for recording or storing or processing information.

Question 34

What must the prosecution prove in relation to knowledge?

Answer 34

The prosecution must prove that the defendant knew that the representation was false in a material particular or was reckless as to its falsity. Absolute certainty is not required.

Question 35

How can guilty knowledge be established?

Answer 35

• An admission
• An implication from the circumstances surrounding the event
• Propensity evidence

Question 36

What is the definition of “a material particular”?

Answer 36

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

ie an important, essential, or relevant detail.

Question 37

What is meant by a “duty to disclose” in relation to deception?

Answer 37

A duty to disclose will often originate in the civil law context, for example where the parties involved are in a contractual relationship.

Question 38

What is the definition of “device” “trick “stratagem”?

Answer 38

Device: A plan, scheme, or trick

Trick: An action or scheme undertaken to fool, outwit, or deceive

Stratagem: A cunning plan or scheme especially for deceiving an enemy, or trickery

Question 39

What is the definition of property as defined under section 2 of the Crimes Act 1961?

Answer 39

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

Question 40

What are three examples of a valuable consideration?

Answer 40

• 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

Question 41

What is the nature of belie required in relation to claim of right?

Answer 41

• There must be a belief in a proprietary or possessory right in property. There must be a belief that relates to an element of ownership of the property in question or a right to take possession of it. Property may include, in appropriate cases, tangible property that cannot be possessed but may be owned.
• The belief must be about rights to the property in relation to which the offence is alleged to have been committed.
• The belief must be held at the time of the conduct alleged to constitute the offence.
• The belief must be actually held by the defendant

Question 42

In relation to “takes or obtains” ownership, possession, or control may be?

Answer 42

Directly or indirectly obtained. Includes coming into possession with, or without the consent of the owner.

Question 43

What is the definition of “attempts” as defined in section 72(1) of the Crimes Act 1961?

Answer 43

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.

Question 44

What exemplifies a representation?

Answer 44

Examples have included representations about a past or present fact, about a future event, or about an existing intention, opinion, belief, knowledge or other state of mind.

Simester and Brookbanks suggests “ it must be capable for being false so it must contain a proposition of fact.

Question 45

What is meant by a “false representation”

Answer 45

The 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.

Absolute certainty is not required and willful blindness as to falsity or the statement will suffice.

Question 46

What is meant by the “continuing effect” in relation to a representation?

Answer 46

In many cases a representation by words or by conduct may have a continuing effect. For example a restaurant and ordering dinner represents that the diner will follow the normal practice and pay for the meal. If during the course of the dinner the diner decides to avoid that payment, the continuing representation will become false, and the obtaining of food will come within s240.

Question 47

What is held in Police v Dronjak

Answer 47

the defendant was shopping in a department store. He was approached by an assistant who in reply to his query advised that the cost of a particular car radio was $695.83. He advised the assistant that the would purchase the item when he went through the checkout.

On arrival at the checkout the car radio bore two price tags one of $695.83 and the other $38.88. The defendant allowed the cashier to charge the lower of the two prices.

It was commented that by maintaining silence in the face of a mistake known to him and deliberately refraining from drawing the assistants attention to the mistaken Dronjak had obtained title to the radio by deception.

Question 48

What is held in R v Crooks?

Answer 48

It was held that the accused may also be liable if their conduct has amounted to wilful blindness and this is equated to knowledge.

Question 49

What is meant by “control”?

Answer 49

To control something means to exercise authoritative or dominating influence or command over it.

Question 50

Hire purchase - where goods are……

Answer 50

Where goods are obtained by hire purchase by a false representation the offence committed is deception.

Question 51

Define deliver over, execute, make, accept, endorse, destroy, or alter……….

Answer 51

None of the terms are defined in the Crimes Act 1961.

To deliver over, is to surrender up someone or something

To execute, is to put a course of action into affect

To endorse, is to write or sign on a document

To alter, is to change in character or composition, typically in a comparatively small by significant way.

To accept, is to receive something.

Question 52

Explain the propensity rule as defined in section 40(1)(a) and (b) of the Evidence Act 2006?

Answer 52

(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.

(b) does not include evidence of an act or omission that is
- one of the elements of the offence for which the person is being tried or
- the cause of the action in the proceeding in question.

Question 53

Explain “voidable title”?

Answer 53

A title obtained by deception, fraud, duress or misrepresentation is called a voidable title.

This means the title can be avoided by the seller. Thus if an innocent person purchases goods obtained by deception before title has been avoided, then he or she is entitled to good title.

Until the title is avoided, the defrauder has a voidable title, and can confer good title on anyone who acquires the goods from him in good faith and for value.

Question 54

What is necessary to “avoid title”?

Answer 54

• communication ie in writing, phone call text message, to the person who has obtained title by way of deception, fraud, duress, or misrepresentation to avoid title prior to the transfer of title to a separate party.
• By advising the police of the defect in title in relation to the property ie the vehicle.

Question 55

Explain the offence of Theft By Person In Special Relationship as held in section 220(1)(a) and (b)

Answer 55

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 proceed 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.

Question 56

What are the 2 core elements required for an offence of Theft By Person In Special Relationship?

Answer 56

(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 proceed 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

Question 57

Explain “alteration, conceal, and destroy” in relation to the offence with an intention to deceive.

Answer 57

Alteration: that a document is altered if it is changed in some manner.

Conceal: (a) the actual hiding of a document, (b) the denial of its existence, (c) the withholding of it in the face of a positive duty to produce it.

Destruction: “ to end the existence of the document”

Reproduction: “ producing a copy or representation of , or made in imitation.

Question 58

What are the ingredients of Using altered or reproduced document with intent to deceive?

Answer 58

Knowing any document to have been made or altered

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
(b) causes any person to use or deal with, or act upon the document.

Question 59

What is the mens rea requirements in relation to a charge of Using altered or reproduced document with intent to deceive?

Answer 59

Firstly the defendant must know that the document had been altered with intent to deceive.

Secondly the defendant must have intended by the employment of the document, or by causing another to use or rely on it, to obtain by deception any property, service, privilege, pecuniary advantage, benefit or valuable consideration or to cause loss to any other person.

Thirdly there must be an intention to acquire or retain the property or to cause loss by deception

Question 60

What is the interpretation of “access” in relation to computer crime?

Answer 60

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

Question 61

What is the interpretation of “authourisation” in relation to computer crime?

Answer 61

Includes an authorisation conferred on a person by or under an enactment or a rule of law or by an order of a court or judicial process.

Question 62

What is the interpretation of “computer system” in relation to computer crime?

Answer 62

• Means a computer system
• 2 or more interconnected computers
• any communication links between computers or to remote terminals or another device.
• 2 or more interconnected computers combined with any communicative computers or to remote terminals or any other device and includes any part of the items described in paragraph (a) and all related input, output processing, storage, software, or communication facilities, and stored data.

Question 63

What are the ingedients for accessing computer system for dishonest purpose?

Answer 63

Everyone who

Directly or indirectly

Access any computer system and therby,

Dishonestly or by deception

And without claim of right

Obtains any property, privilege, service, pecuniary advantage, benefit or valuable consideration, or

Causes loss to any other person

Question 64

What are the ingredients of Damaging or interfering with a computer system?

Answer 64

Everyone who

Intentionally or recklessly

Destroys or damages or alters

Any computer system

If he or she knows

or ought to know

that danger to life is likely to result.

Question 65

What is the distinction between s250(1) and 250(2)?

Answer 65

s250(1) criminalises the destruction, damaging or altering of a computer system that the defendant knows or ought to know wold endanger life

s250(2) makes it an offence to damage etc any computer system and adds the requirement that the defendant must act without authority with the knowledge that they are not authorised or are reckless whether they are authorised.

s250(2)(b) is directed at instances where the defendant has so arranged matters that the victims own operation of his or her computer system, or the act of third parties, will cause damage to the victim’s computer system