Deception cards Flashcards
What is the definition of Deception in 240 (2)?
- A false representation whether oral, documentary or conduct, person intends to deceive and knows its false material or reckless to whether it is false material
- An omission to disclose a material particular, intent to deceive in circumstances where there is duty to disclose
- Fraudulent device, trick, stratagem used with intent to deceive.
Liability for Uses or Attempts to use a document
Section 228 (1)(b)
- Dishonestly
- And without claim of right
- Uses or attempts to use any document
- With intent to obtain any property, service, pecuniary advantage, valuable consideration
Dishonestly
Done without belief in consent from a person with authority
Without Claim of Right
No belief of possessory or proprietary right to property
Use/Attempts to Use
Uses - Single action or continuing ise
Attempts - HAYES Unsuccessful use of a document is much as a successful one.
Any Document:
MISIC - Thing which provides evidence of information or service as a record
With intent to obtain any…
Intent - Commit the act, specific result
COLLISTER - Words/actions before/during/after, nature of offence and circumstantial evidence
Property
Real or personal property,estate or interest.
Service
Limited to financial or economic value, exclude privilege or benefit
Percuniary advantage
HAYES - Something that enhances the accused financial position
Valuable Considerations
HAYES - Anything capable of being valuable consideration, money or monies worth
Liability for obtaining by deception (a)
Section 240 (1)(a)
- By any deception
- And without claim of right
- Obtains possession of, control over, any property, service, pecuniary advantage, valuable consideration
By any deception:
A false representation – either by oral / documentary / conduct made with intent to deceive and known / or reckless if false in material particular OR an omission to disclose a particular where there is a duty to do so OR a fraudulent device, trick, or stratagem used with intent to deceive any person.
MORLEY - Intention to deceive requires purposeful intent at the time the deception is practice
Without Claim of Right:
No belief of possessory or proprietary right to property
Obtains possesion or control over:
Ownership - Goods come under control, don’t have to physically have them
Possesion:
COX - Two elements, physical (custody and control) and mental (Knowledge and intention)
Any property - Real or personal property,estate or interest.
Privilege - limited to financial or economic value, exclude privilege and benefit
Pecuniary advantage - something that enhances the accused financial position
Valuable Considerations - Anything capable of being valuable consideration, money or monies worth
Liability for obtaining by deception (b)
Section 240 (1)(b)
- By any deception
- And without claim of right
- In incurring any debt or liability
- Obtains credit
By any deception:
A false representation – either by oral / documentary / conduct made with intent to deceive and known / or reckless if false in material particular OR an omission to disclose a particular where there is a duty to do so OR a fraudulent device, trick, or stratagem used with intent to deceive any person
MORLEY - Intention to deceive requires purposeful intent at the time the deception is practice
Without Claim of Right:
No belief of possessory or proprietary right to property
In occurring any debt OR liability:
Debt - Money owing from one person to another
Liability - Legally enforced financial obligation.
Debt and liability must be legally enforceable, if contract in void or illegal, there is no offence.
Obtains - Obligation to pay or repay at time received
Credit - Intangible, must relate to money obligation
Liability for causing loss by deception (d)
Section 240 (1)(d)
- By any deception
- And without claim of right
- Cause loss to any person
By any deception:
A false representation – either by oral / documentary / conduct made with intent to deceive and known / or reckless if false in material particular OR an omission to disclose a particular where there is a duty to do so OR a fraudulent device, trick, or stratagem used with intent to deceive any person
MORLEY - Intention to deceive requires purposeful intent at the time the deception is practice
Without Claim of Right:
No belief of possessory or proprietary right to property
Cause Loss to any other person:
Loss - Financial detriment.
MORLEY loss must have been caused by deception, only has to play a part in the loss
Define false representation under 240 (2)?
Representations are not defined
- Examples include representations about a past or present or future fact or existing intention opinion belief knowledge.
- Under current law representation must be false, defendants believes its false or reckless.
- Absolute certainty not required, willful blindness to falsity of statement will suffice
How is the term representation intepreted (not defined) by the courts? State what relevant case law in your answer
R V Morely
Representation must relate to a statement of existing fact. rather then future intent
What must the prosecution prove in relation to a False Statement?
- There was a representation by the defendant
- Intent to deceive
- Representation was false and defendant knew or reckless it was false in a material particular.
State your understating in relation to the term false in a material particular?
An important, essential, relevant detail or item.
What ‘knowledge’ must an accuse person have to be liable for making a false representation?
Knew or reckless the representation was false in a material particular. Absolute certainty not required.
How can ‘knowledge’ be established?
- Admission
- Implication from the circumstances surrounding the event
- Propensity
What is R V Crooks in relation to knowledge?
The accused may be liable if their conduct amounted to willful blindness, this is equated to knowledge
In relation to 240(2), besides making false representation by oral, what other ways can false representation be made?
- Documentary
- Conduct
- Silence or non disclosure
- Continuing effect
A fraudulent device, trick or stratagem used with intent to deceive any person must be….
Dishonest in the traditional moral sense
What is the definition of a device, trick and stratagem
Device
A Plan, scheme or trick
Trick
An action or scheme undertaken to deceive
Stratagem
Cunning plan or scheme especially for deceiving
What are examples of valuable considerations?
(Property 240 1a)
- Monetary payment in return for services or goods.
- Goods given in return for services provided
- Issuing a false invoice to receive payment for goods never supplied
What are examples for pecuniary advantage?
(Property 240 1a)
- Cash stolen from goods
- Cash obtained by a credit card
- Discount by using student ID
- Avoiding or deferring a payment or debt
What are examples of a privilege or benefit?
(Property 240 1a)
- Using another persons membership to use the gym
- Access to medical services
- The withdrawal of an assault charge
- A reduction in sentence to an offence
What is meant by the terms debt and liabilities referred to in section 240 (1)(b)?
Debt
Money owing from one person to another
Liability
Legally enforceable financial obligation to pay
What is credit?
Fisher V Ryan
The obligation on the debtor to pay or repay and the time given to them by the creditor. Does not extend to obligation to supply services or good
What must exist in relation to debt and liability in deception?
Must be legally enforceable.
In relation to the offence of obtaining a credit by deception under section 240 (1) (b) CA 1961, which one of the following statement is NOT correct?
Under the definition of obtain in S217 CA 61, It is not sufficient that the accused obtained the extension of credit to another person - IT IS SUFFICIENT
Question to do with bonafide intention?
An intent to deceive is not disclosed because of inability to perform a bonafide intention, delay or non payment of a debt
For a charge under section 240 (1)(b) CA 1961, the obligation to repay means…
The obligation must be legally enforceable against whomever the credit is obtained.
What are some examples of obtaining credit?
- Obtaining money on loan
- Extending existing overdraft
- Renting or leasing a property
What is your understanding of withholding payment due to genuine satisfaction with a service?
Intent to deceive does not exist if genuine dissatisfaction with the service.
eg not paying for a meal because it was badE
What offence is committed when property on hire purchase is obtained by deception, then sold on?
- Goods obtained by hire purchase on false representation is deception
- If offender later sells the good to another, offence is theft by conversion.
Offender never receives title for goods obtained by hire purchase.
Define induce?
To persuade, bring about or give rise to
What was held in R V Laverty in relation to inducement?
Prosecution to prove the person parting with property was induced by a false representation.
How would you prove inducement?
Direct evidence for the deceived party, the false representation was believed by the victim and consequence of that belief made the victim part with their money
When interviewing a victim who alleges they have been defrauded, what two important questions should be asked by the investigator?
- Whether or not the victim believed the false representation
- Whether or not the consequence of that belief made the victim part with their money
The case R V Morley discussed the matter of loss in Section 240 (1)(d). Which statements best describe what was held?
- Prosecution must prove the loss alleged must have been induced caused upon the deception as long as it played a material part in occasioning the loss
- Must be a direct loss. Expected or future loss of profit are not included
What must prosecution prove in relation to loss?
- The loss was caused by deception
- It was reasonably foreseeable to more than trivial loss would occur
- Not prove the loss was intentionally caused
The term valuable consideration means that a person can…
Obtain anything capable of being valuable consideration, monetary kind or any other kind
What are the four beliefs that must be held in Claim of Right?
- Must be a belief in a proprietary or processionary right in property.
- Must be about rights to property of the alleged offence committed
- Must be held at the time of the conduct alleged to constitute offence
- Must actually be held by the defendant
An item is located in Johns property. What must be proved in relation to possesion?
Prove that John exercise control over the property. Being at the premises is insufficient for possession.
When can goods be said to have been ‘obtained’ by the defendant?
When the defendant has obtained the goods for themselves or any other person
What is lien?
A right over another’s property to protect a debt charged on that property
To prove a charge of theft by a person in a special relationship under section 220(1) it is necessary to prove that the person knew they had…..
- Account to any other person for the property or any proceeds arising from the property OR
- Deal with the property or any proceeds arising from the property according to requirements from any other person
What are the two core elements of proof for the theft offence Section 220 by a person in a special relationship?
- He/she had received property on terms to the accused knowledge, affect what the accused may do with the property or proceeds and required accused to act according to the requirements of another person
- Defendant intentionally departed from relevant obligation
What are the differences between obtaining property by deception and theft in regards to possession?
In theft, the property is obtained without the owners permission, title has not been passed on.
False documents includes a document of which the whole or any material part purports to be made:
- By a person who did not authorise its making
- Fictitious person
You can make a false document by making material obligation to a genuine document. Under Section 256, such alterations might include what?
- Additions
- Insertions
- Deletions
- Obliterations
- Erasures
- Removal of material
When is an alteration considered material alteration?
- If it increases the value of document, instrument, negotiability.
- False document made by making alterations to genuine document
What are the elements for forgery Section 256 (1) CA 61?
A person
Making a false statement
With intent to use it
To obtain any property, privilege, pecuniary advantage, benefit, service or valuable consideration
When is forgery complete?
- As soon as the document is made
With intent to use it to obtain any PPSVB - Know it is false, intent to be used in NZ or anywhere else as genuine
Intent to deceive is not an essential ingredient of forgery. Nonetheless, what must prosecution prove
- The defendant knew the document was false and intended to either use the false document to obtain PPSVB or the false document be used as genuine document
- Not enough that the document is false and defendant knew. Must prove intent to deceive.
What is the difference between forgery and altering and reproduction of a document?
- The varying definitions of ‘document’ and ‘intent’
- With forgery, intent to deceive only is required. In reproduction of document, must prove intent to obtain by deception
- Any document can be altered, edited reproduce and still be a document. With forgery the document must be a ‘false document’ defined in Section 225 CA.
To successfully prosecute a person on a charge of Section 259 CA 61 (reproduce document with intent to deceive)
What are the three mental elements you must prove?
- Defendant must know the document had been altered with intent to deceive
- Defendant intended by the employment of the document to obtain PPPSVB by deception to cause loss to any person
- Intent to acquire retain PPSVB or cause loss by deception.
Define computer system in section 248 CA 61?
- Means a computer OR
- 2 or more interconnected computers OR
- Any communication links between computers or another devices OR
- 2 or more interconnected computers combined with communication links between computers or any other device
Define access when it comes to computer access?
In relation to any computer system, instruct, communicate with, store data in, receive data in, made use of resources of the computer system
Explain what actions would involve accessing a computer system?
Access requires that the person instructing or communicating with the computer system has some form of connection with the computer system through which instruction or communication may pass
Dishonest access of a computer what is required to prove this?
249 (1) and 249 (2)
- 249 (1) Defendant directly or indirectly accessed a computer system dishonestly or by deception without claim of right obtains any PPSVB or cause loss
- 249 (2) Defendant directly or indirectly accessed a computer system and WITH INTENT or by deception without claim of right obtains any PPSVB or cause loss
Explain the distinction between section 249 (1) and 249 (2)?
249 (1) a person has accessed a computer system obtained the offending material or cause loss
249 (2) Someone has accessed a computer with that same intent, regardless of the result.
A person can only be charged with Section 249 (1) when?
The actually obtained any property, privilege, pecuniary advantage benefit, valuable consideration or caused loss to any other person
Describe a situation when a person may not be physically present at a computer to access it?
Via a software that remotely infects computers.
Investigations into company fraud complaints will usually involve enquiries with the Ministry of Commerce. State four possible sources available there.
- Registra of companies
- Companies office
- Official assignee
- Insolvency services
List the two questions that must be asked if someone reports a stolen credit card?
- What was the ID used by the offender?
- Description of the offender, details of circumstances
What is the definition of Intention to Deceive?
R V Morley
Intention to deceives requires purpose intent to deceive at the time deception is practice
Explain the continuing effect in relation to a ‘Dine and dash’
A representation by words or conduct may have a continuing effect. For example; Order a meal at the restaurant. expected to receive and pay for meal. While eating you decide to leave to avoid paying.
What is the timing of intention to deceive?
,The intention to deceive is essential and must exist at the time when the deception is perpetrated. So when the credit is obtained a later decision not to repay is insufficient.
For propensity evidence to be admissible, what is the ultimate issue?
R V Sharma
The degree to which the probative value of evidence outweigh the prejudicial effect.
What bank enquiries should you make regarding accounts when investigating fraud/deception?
- Interview employees and obtain statements
- Account number and date it was open
- Details used when account was opened
- Nature and amount of first deposit
- Descriptions of the suspect and associates
- Details of any other deposits
What are things Judge may consider for propensity evidence?
- Frequency of act which are the subject of the evidence have occurred.
- Connection between time and acts of the evidence and the offence against the defendant
- Extent of similarity between the evidence and the offence against the defendant
- Extent to which the acts are evidence and the offence against the defendant are unusual
- Number of persons making allegations against the defendant with similar offence
- Allegations of paragraph (d) may be the result of collusion or suggestibility.
What are the company deception categories? Category A
A) Large scale theft/dishonesty offences against employees by employers. Offences:
Dishonestly taking using document
Theft by person in special relationship
Altering concealing
Forgery
False accounting
What are the company deception categories? Category B
B) Dishonesty offences committed against financial institutions by people outside the institution. Includes GST deception against IRD by false GST returns.
Offences
Forgery
False accounting
Accessing computer for dishonest purpose
What are the company deception categories? Category C
C) Commercial deception against the public by people who entice people to invest money
Offences:
False statement by promoter
Deception
What are the company deception categories? Category D
D) Usually offences committed by professional people in position of trust, solicitors or accountants against their clients
Offences:
Theft by person in special relationship
Dishonestly taking or using documents
What is the definition of Pecuniary Advantage?
Hayes V R
Anything that enhances the accused financial position, the enhancement is the advantage
What is the definition of document?
R V Misic
A thing which provides evidence, information or serves as a record
What is R V Laverty
Necessary for prosecution to prove person parting with property was induced to do so by false representation made
Liability for accessing computer system for dishonest purposes (1)(a)
Section 249 (1)(a)
- Directly or indirectly
- Accesses any computer
- Dishonestly or by deception
- And without claim of right
- Obtains any property, service, pecuniary advantage, valuable consideration
Liability for accessing computer system for dishonest purposes (1)(b)
Section 249 (1)(b)
- Directly or indirectly
- Accesses any computer
- Dishonestly or by deception
- And without claim of right
- Cause loss to any other person
Liability for accessing computer system for dishonest purposes (2)(a)
Section 249 (2)(a)
- Directly or indirectly
- Accesses any computer with intent
- Dishonestly or by deception
- And without claim of right
- Obtains any property, service, pecuniary advantage, valuable consideration
Liability for accessing computer system for dishonest purposes (2)(b)
Section 249 (2)(b)
- Directly or indirectly
- Accesses any computer with intent
- Dishonestly or by deception
- And without claim of right
- To cause loss to any other person
What is the definition of claim of right?
A belief at the time of the act in a proprietary or possessory right in property in relation to the offence was allegedly committed
What is the definition of authorisation?
Involves computers and includes authorisation conferred on a person by or under an enactment or rule of law, court order.
What was held in Hayes V R for belief in dishonesty
Reasonable may be evidence if the belief was actually held.
When may evidence of propensity be called in cases of deception?
Where there is sufficiently strong connection between the offences committed.
