Deception (General)

Question 1

“Intend to obtain” definition as in Section 228 CA 61?

Answer 1

The defendant MUST intent to obtain, and he or she must intend to obtain BY deception

Question 2

What is the definition of “Obtain” as found in Section 217 CA 61?

Answer 2

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

Question 3

What is the definition of “Property” as found in Section 2 CA 61?

Answer 3

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

Question 4

What is the definition of “Service” as found in R v Cara?

Answer 4

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

Question 5

What is the definition of a “Pecuniary advantage” as found in Hayes v R?

Answer 5

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

Question 6

What is the definition of a “Valuable Consideration” as found in Hayes v R?

Answer 6

Anything capable of being valuable consideration, whether of a monetary kind or of any other kind; in short, money or moneys worth

Question 7

What is an example of a Valuable Consideration?

Answer 7

• 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 8

What is the definition of “Dishonestly” as defined in the Crimes Act?

Answer 8

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

Question 9

What was the discussion in R v Hayes around dishonesty?

Answer 9

The court in R v Hayes noted that the objective facts of a particular case may be such that the jury can properly infer that the defendant had a dishonest mind unless he or she can raise a reasonable doubt on the basis of a relevant but mistaken belief

Question 10

Belief (as to consent) in regards to Section 228 CA 61 may be either:

Answer 10

• That the act or omission was, expressly or impliedly, consented to by a person entitled to give consent or
• That the act or omission was authoirsed by a person entitled to authorise it

Question 11

What is significance with regard to the “belief” held and its interpretation under S217?

Answer 11

That absence of any reference to the relevant belief having to be reasonable or based on reasonable grounds is significant

Question 12

What is the definition of “Claim of Right” as defined in the Crimes Act ?

Answer 12

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 13

What does the change of definition for “Claim of right” mean for the belief requirement of the defendant?

Answer 13

It now requires that the defendant have, at the time of the act alleged to constitute the offence, a belief in a proprietary or possessory right in the property in relation to which the offence is alleged to have been committed.

Question 14

What are the FOUR requirements in the nature of belief required for S228?

Answer 14

• A belief in a proprietary or possessory right to the property
• The belief must be held in respect of THAT property
• The belief must be held AT THE TIME of the offence
• The belief must be ACTUALLY held

Question 15

What can “property” include for Section 228?

Answer 15

It may include, in appropriate cases, intangible property that cannot be possessed but may be owned

Question 16

Does the defendant have to believe he or she has the relevant possessory or proprietary interest?

Answer 16

With the new definition, it is only a belief that such a right exists and therefore it could be argued that a defendant could rely on a belief as to anothers legal rights

Question 17

What nature of belief as to the proprietary or possessory right to property will NOT be sufficient as a defence?

Answer 17

If there is a belief that the defendant had a proprietary or possessory right in relation to OTHER property and was therefore justified in taking or dealing with the property in regard to which the offence was allegedly committed.

Question 18

What is NOT a requirement in the nature of belief required for S228?

Answer 18

That the belief is required to be reasonable or reasonably held.

Question 19

What MAY a belief be based on for S228?

Answer 19

Ignorance or mistake

Question 20

Is the reasonableness of the belief relevant for S228?

Answer 20

The reasonableness of the belief may be relevant in determining whether the defendants assertion of the belief is credible.

Question 21

Is “taking” defined by statute?

Answer 21

No but can be read, for the purposes of S228, in conjunction with the definition of theft.

Question 22

What can the definition of “taking” be derived from? And what does it state?

Answer 22

It can be read in conjunction with the definition of theft;
Theft is committed by a taking when the offender moves the property or causes it to be moved

Question 23

How can Ownership, Possession or control be obtained?

Answer 23

Directly or indirectly and includes coming into possession with or without the consent of the owner.

Question 24

What is the definition of a “Document” as provided in the Crimes Act?

Answer 24

A document, or part of a document, in any form and includes;
- Any paper or other material used for writing or printing and can be read
- Any photograph / negatives and related items
- Any disc, tapes, cards or other devices/equipment on which information is stored and can be reproduced
- Any material where information is supplied to any device used for recording / storing / processing information

Question 25

How must legislation be interpreted with regard to a “Document”?

Answer 25

Developments in technology may improve the way evidence or information is provided or a record is kept but this does not change the purpose of the technology.

Question 26

What must the prosecution prove in relation to “Uses or attempts to use document”?

Answer 26

That the offender used (or attempted to use) the document with intent to obtain the property, service, valuable consideration, pecuniary advantage or valuable consideration.

Question 27

What can “Use” include?

Answer 27

A single action such as handing over a document to its intended recipient or the continuing use of a document

Question 28

What is the definition of “Attempts” as under S72 Crimes Act 1961?

Answer 28

• Everyone who
• Having 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 29

What is a “Question of law” in relation to attempts?

Answer 29

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.

Question 30

When will an act or omission with intent to commit an offence constitute an attempt?

Answer 30

If it was immediately or proximately connected with the intended offence, whether or not there was any unequivocally showing the intent to commit that offence.

Question 31

Where is the definition of “Deception” found?

Answer 31

Under S240(2) CA 61

Question 32

What is the definition of “Deception” as found under S240(2) Crimes Act 1961?

Answer 32

(a) 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
- Is reckless as to whether it is false in a material
particular.
(b) An omission to disclose a material particular, with intent to deceive any person, in circumstances where there is a duty to disclose
(c) A fraudulent device, trick or stratagem used with intent to deceive any person

Question 33

What are examples of a “Representation” in reference to the definition of “deception”?

Answer 33

• Representations about a past or present fact
• About a future event
• About an existing intention, opinion, belief, knowledge or other state of mind.

Question 34

What does Simester and Brookbanks suggest a “representation” is?

Answer 34

It must be capable of being false so it must contain a proposition of fact

Question 35

What must the representation be under the current law?

Answer 35

It must be false and the defendant must know or believe that it is false in a material particular, or be reckless whether it is false.

Question 36

What is not required for representation under the current law?

Answer 36

Absolute certainty is not required and wilful blindness as to falsity of the statement will suffice.

Question 37

What was stated in Carlos v R in regards to a representation?

Answer 37

It was directed that if more than one false representation is alleged, each misrepresentation should be included in a separate count.

Question 38

What must you prove for S240 CA 61?

Answer 38

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

Question 39

When is no offence committed? (S240 CA 61)

Answer 39

No offence is committed unless the false statement, non disclosure or trick etc is made or used by the defendant for the purpose of deceiving their victim, or in the knowledge that the victim is virtually certain to be deceived.

Question 40

What did Simester and Brookbanks state is insufficient in regard to an “intention to deceive” in S240 CA 61?

Answer 40

That 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 S240(2).

Question 41

What does “Recklessness” in S240(2) CA 61?

Answer 41

It ONLY refers to whether the representation is false in a material particular.

Question 42

Who does the deception need to be made to?

Answer 42

It need not have been made to the person actually delivering over the property, granting credit, conferring a benefit or suffering a loss provided the deception was the cause of the relevant conduct.

Question 43

What is an example of “Orally” for S240 CA 61 ?

Answer 43

Verbally claiming to own goods that are in fact subject to a hire purchase agreement

Question 44

What is an example of “By conduct” for S240 CA 61?

Answer 44

Representing oneself to be a collector for charity by appearing to be carrying an official collection bag.

Question 45

What is an example of “Documentary” for S240 CA 61?

Answer 45

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 46

What can you consider when evaluating whether a representation made by the defendant meets requirements under S240 CA 61?

Answer 46

It is possible to look beyond the literal meaning of express words used by the defendant and consider whether a particular meaning can be IMPLIED from his or her conduct.

Question 47

What can a representation by words or conduct have?

Answer 47

A continuing effect.

Question 48

What is an example of a representation by words or conduct having a continuing effect?

Answer 48

Entering 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 49

Is silence included as a false representation?

Answer 49

As a general rule, silence or non-disclosure will not be regarded as a representation, but there are exceptions to this such as where an incorrect understanding is implied from a course of dealing and the defendant has failed to negate that incorrect understanding.

Question 50

What is an exception to the rule on silence?

Answer 50

This is found in label swapping cases where Dronjak was shopping in a department store, asked and was told by a shopkeeper the price of an item but when he took it up to the counter, the product bore two pricetags and he didn’t speak up when the attendant scanned the lesser amount.

It was commented that by maintaining silence in a mistake known to him and by deliberately refraining from drawing attention to the mistake he had obtained title by deception.

Question 51

What must the prosecution prove in relation to a false representation?

Answer 51

The prosecution must prove that the defendant knew the representation was false in a material particular or was reckless as to its falsity.

Question 52

How can knowledge be established?

Answer 52

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

Question 53

What did R v Crooks hold in relation to knowledge?

Answer 53

That the defendant may also be liable if their conduct has amount to “wilful blindness” and thus equated to knowledge.

Question 54

What is a “Material particular” as defined in R v Mallett ?

Answer 54

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

Question 55

What is meant by an omission to disclose a material particular?

Answer 55

Section 240(2)(b) concerns an omission to disclose a material particular, with intent to deceive where there is a duty to disclose

Question 56

What is the definition of an “omission”?

Answer 56

Omission is inaction - e.g. not acting. It can either be a conscious decision not to do something or not giving thought to the matter at all.

Question 57

In S240(2)(b) you are required to show an intent to deceive, what else must you show?

Answer 57

It also requires you to show that there was some material particular that was not disclosed, that the defendant was under a duty to disclose and that the defendant failed to perform that duty.

Question 58

Where does a “Duty to disclose” originate?

Answer 58

Often it will originate in the civil law, for example, where the parties are in a contractual relationship

Question 59

What does Section 240(2)(c) concern?

Answer 59

A fraudulent device, trick or strategem used with intent to deceive any person

Question 60

What does the provision of “A fraudulent device, trick or strategem used with intent to deceive any person” introduce?

Answer 60

It introduces a criminal offence of fraud and effectively covers any form of fraudulent conduct. The conduct must be accompanied by an intent to deceive.

Question 61

What can the circumstances of “Fraud” range from?

Answer 61

Simple trickery to more complex schemes such as pyramid moneymaking schemes.

Question 62

What is the definition of a “device”?

Answer 62

A plan, scheme or trick

Question 63

What is the definition of a “Trick”?

Answer 63

An action or scheme undertaken to fool, outwit or deceive

Question 64

What is the definition of a “Stratagem”?

Answer 64

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

Question 65

What is underlying each term “device, trick or stratagem”?

Answer 65

Concepts of Deceit and Dishonesty

Question 66

What is the definition of “Privilege” or “Benefit” ?

Answer 66

These are not limited to a privilege or benefit of a pecuniary nature. Both of these words mean a “Special right or advantage”.

Question 67

What are examples of a “privilege or benefit”?

Answer 67

• Using another persons gym membership card so that you can use the gym facilities
• Access to medical services
• The withdrawal of an assault charge
• The reduction in sentence for an offence

Question 68

What if the “Privilege or benefit” does not involve money?

Answer 68

There does not need to be financial loss or injury to the person who has been defrauded.

Question 69

When are “Goods” obtained?

Answer 69

If the goods come under their control, even though they may not have physical possession of them.

Question 70

How may “Property” be obtained?

Answer 70

If a deception made to one person means that the property is then actually obtained from another person, provided that the deception operated on the mind of the person giving up the property.

Question 71

What is an example of obtaining possession by fraud from a third person?

Answer 71

Where there is an agreement that the sending of some item (e.g. a cheque by post) shall complete a transaction, the “obtaining” is complete at the time of posting.

Question 72

What is the distinction between theft and obtaining by deception?

Answer 72

In theft, the property is obtained without the owners permission and title is not passed on.

Question 73

What is the definition of “Ownership” synonymous with?

Answer 73

It is synonymous with the concept of title.
In certain circumstances a person parting with goods not only relinquishes possession to the other person, but also passes on a legal right of ownership to the goods.

Question 74

If possession is obtained by fraud, what does the offender gain?

Answer 74

The offender will typically gain both “title to” or “property in” goods (ownership) and possession because the person parting with the goods intends to give the other person both possession and ownership.

Question 75

“Special interest” meaning?

Answer 75

It is sufficient if the person from whom the goods were obtained had some special property or interest in the goods without having actual ownership of them.

Question 76

What is an example of “special interest” ?

Answer 76

A contractors lien being placed over property - a right over anothers property to protect a debt charged on that property - until the debt was paid or the goods were voluntarily parted with. This would enable him to retain possession of the car and would give a special property or interest in the vehicle.

Question 77

What was held in R v Cox RE a special interest lien?

Answer 77

The owner of the car who, by false pretences, induced the garage proprietor to give up his lien over and possession of the car had obtained the vehicle by false pretences.

Question 78

What does it mean to “Control” something?

Answer 78

It means to exercise authoritative or dominating influence or command over it.

Question 79

What does ordinary usage of the word “control” show ?

Answer 79

That a defendant does not have to possess something in order to control it.

Question 80

What does the prosecution not need to prove in relation to “Control”?

Answer 80

That the accused was in actual possession of the property. It may be sufficient that the accused exercised control over the property through an agent.

Question 81

What is insufficient for “control” ?

Answer 81

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 the particular property.

Question 82

What does “Pecuniary advantage” mean?

Answer 82

Economic or monetary advantage

Question 83

What are examples of “Pecuniary advantage”?

Answer 83

• Cash from stolen goods
• Clothing or cash obtained by a credit or EFTPOS card
• A discount (by using a student ID card)
• Avoiding or deferring payment of a debt

Question 84

What is the definition of “Debt”?

Answer 84

Means money owing from one person to another

Question 85

What is the definition of “Liability”?

Answer 85

A legally enforceable financial obligation to pay, such as the cost of a meal.

Question 86

What is the definition of “Credit”?

Answer 86

Refers to the obligation on the debtor to pay or repay, and the time given for them to do so by the creditor.

Question 87

What must you prove for a charge under Section 240(1)(b) CA 61 (Being obtaining credit by Deception)?

Answer 87

The identity of the defendant and that they;
- By deception and without claim of right
- In incurring any debt or liability
- Obtained credit

Question 88

What do you need to note in regard to a debt or liability?

Answer 88

It must be legally enforceable. This means that if the contract is void or illegal there will be no offence.

Question 89

What do you need to note in regard to an obligation to pay?

Answer 89

It must be legally enforceable against whomever the credit is obtained (usually the defendant)

Question 90

What does “time to pay” mean in reference to a “credit”?

Answer 90

Credit may involve varying periods of time. Credit can be obtained over lengthy periods, as in loan agreements, or for a matter of minutes, such as the time taken to consume a meal or receive a haircut. At the end of the period of credit, payment is expected to be made.

Question 91

What did “Adams on Criminal law” highlight re credit?

Answer 91

The long-standing authority that has held that credit must be obtained by and given to the defendant personally.

Question 92

What does the definition of “Obtain” extend in regards to the Adams on Criminal Law information provided?

Answer 92

That it will be sufficient that the defendant obtained the extension of credit to another person

Question 93

What is an example of situations where credit may be obtained?

Answer 93

• Obtaining money on loan
• Extending existing overdraft facilities
• Renting or leasing a dwelling

Question 94

When is gaining credit unlawful?

Answer 94

It is not in itself unlawful unless it is accompanied by an intent to deceive.

Question 95

When must the defendant have the intention to deceive?

Answer 95

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.

Question 96

What is an example of the timing of an intention to deceive?

Answer 96

In relation to meals at a restaurant, in order to convict the offender you must prove that they had an intent to deceive when they either entered the restaurant or started their meal.

Question 97

What is credit?

Answer 97

Credit is an intangible thing. Credit obtained must be in respect of a monetary obligation.

Question 98

If the defendant obtains a non-monetary benefit what would be the appropriate charge?

Answer 98

Most likely a charge under S240(1)(a) depending on the facts of the case.

Question 99

What is an example of obtaining credit by deception?

Answer 99

If a shopkeeper mistakes a customer for someone else and gives them credit, the customer is guilty of obtaining credit by deception if they are aware of the mistake and accept the credit with no intention of paying later.

Question 100

What did Adams on Criminal Law say in regard to continuing representations?

Answer 100

That in many cases a representation, whether by words or conduct, may be of continuing effect.

Question 101

What is an example of a continuing representation?

Answer 101

Entering a restaurant and ordering a meal would be a representation that one will pay for the meal at the appropriate time. If the diner then decides to avoid payment, the continuing representation of an intention to pay will become false and any obtaining of food will come within S240.

Question 102

Intent to deceive is not present merely because there is:

Answer 102

• Delay or non-payment of the debt or
• An inability to perform a bona fide intention.

Question 103

What is NOT an example of incurring debt by deception?

Answer 103

To incur a debt and then be unable to pay through unforeseen circumstances, loss of money or oversight is not deceit.

Question 104

Does witholding payment amount to fraud?

Answer 104

Intent to deceive does not exist where payment is withheld because of genuine dissatisfaction with the service.

e.g. where the cost of a meal is refused because of the quality of food (made before wholly consuming the food)

Question 105

Can obtaining goods on hire purchase amount to deception?

Answer 105

Where they are obtained on hire purchase by a false representation, the offence committed is deception.

Question 106

If goods are obtained on hire purchase by a false representation and then sold to another, what is the appropriate charge?

Answer 106

Theft by conversion as the offender never receives title for goods fraudulently obtained on hire purchase.

Question 107

What is the definition of “induces” ?

Answer 107

To persuade, bring about or give rise to

Question 108

What does Simmester and Brookbanks suggest in terms of the definition of “induces”?

Answer 108

That the scope of the induced conduct is very wide. Another person must be induced or caused to do any of “Deliver over, execute, make, accept, endorse, destroy or alter” the document or thing

Question 109

What should inducement be proved by?

Answer 109

Wherever possible, it should be proved by direct evidence from the person alleged to have been defrauded.

Question 110

In practice, proving inducement, the victim of the deception is usually questioned to elicit answers proving:

Answer 110

• That the false representation was believed and
• That it was the consequence of that belief that the victim parted with his or her money

Question 111

What was held in R v Granger ?

Answer 111

That in the absence of direct evidence a reasonable inference can be drawn in certain circumstances that the owner was induced by the representation to part with his money.

Question 112

What must there be for a charge containing “inducement” ?

Answer 112

There must be a belief in the truth of the representation.

Question 113

What is an example of an attempt at obtaining by deception where there the elements of “inducement” are not met for the full offence?

Answer 113

Where the owner parts with property solely as a means of trapping the defendant AND
Where the person believes the representation but is not induced to part with property.

Question 114

What must be the “cause” of the deception?

Answer 114

The defendant, or an act of the defendant, must be the substantial and operative cause of the delivery, execution etc, of any document capable of deriving pecuniary advantage.
The accused MUST cause the loss.

Question 115

What is the definition of “Deliver over” ?

Answer 115

Is to surrender up someone or something

Question 116

What is the definition of to “execute”?

Answer 116

To put a course of action into effect.

Question 117

What is the definition of to “endorse”?

Answer 117

To write or sign on a document

Question 118

What is the definition of to “Alter”?

Answer 118

To change in character or composition, typically in a comparatively small but significant way

Question 119

What is the definition of to “accept”?

Answer 119

To receive something

Question 120

What is the definition of a “Thing”?

Answer 120

It is a broad and encompassing concept, however, a “thing” must be tangible and must be capable of being used to derive a pecuniary advantage.

Question 121

What is the definition of “Loss”?

Answer 121

It is not defined in statute but in most cases will involve financial detriment to the victim.

Question 122

Will all forms of “Loss” be covered under causing loss by deception?

Answer 122

No, not all forms of loss will come within this section. Property or valuable things will be the subject matter of loss, but it is less clear where a loss concerns something that is non-quantifiable.

Question 123

Does a loss caused by deception need to be direct or indirect?

Answer 123

The loss caused by deception must be in the nature of a direct loss. Indirect losses, such as expectation loss (loss of a bargain) and loss of anticipated future profits are not included.

Question 124

What did R v Morley conclude in relation to losses?

Answer 124

The loss alleged by the victim must have been induced by, or caused in reliance, upon the deception. But deception need not be the only operative factor, so long as it played a material part in occasioning the loss.

Question 125

What did the courts consider needed to be assessed in relation to a “loss”?

Answer 125

The complainants position before the deception and whether it had been diminished or impaired.

Question 126

Under Section 240(1)(d) what is NOT required in relation to a loss?

Answer 126

It is not required that the person who suffers the loss be the person who was deceived.

Question 127

Where a “loss” is more in the nature of a benefit than of property, what may be the more appropriate charge?

Answer 127

A charge under Section 240(1)(a) CA 61.

Question 128

What is required to be proved for causing loss by deception?

Answer 128

that:
- The loss was caused by deception
- It was reasonably foreseeable some more than trivial loss would occur but
- Need not prove the loss was intentionally caused

Question 129

What is there no requirement to prove for causing loss by deception?

Answer 129

There is no requirement that there be any benefit to anyone

Question 130

What is the penalty for deception offences?

Answer 130

If the loss caused or the value of what is obtained or sought to be obtained exceeds:
- $1000 - 7 years imprisonment
- $500 but not $1000 - 1 year
- Does not exceed $500 - 4 months

Question 131

What is the definition of propensity as found in Section 40 Evidence Act 2006?

Answer 131

Evidence that tends to show a persons propensity to act in a particular way or to have a particular state of mind, being evidence of acts, omissions, events or circumstances with which a person is alleged to have been involved

Question 132

What does propensity not include?

Answer 132

Evidence of an act or omission that is
- One of the elements of the offences for which the person is being tried or
- The cause of action in the proceeding in question

Question 133

What are the restrictions around propensity evidence?

Answer 133

Propensity evidence about;
- A defendant in a criminal proceeding may be offered only in accordance with Section 41, 42 or 43 and
- a complainant in a sexual case in relation to the complainants sexual experience may only be offered in accordance with section 44

Question 134

Do the rules of propensity apply to evidence of veracity?

Answer 134

Evidence that is solely / mainly relevant to veracity is governed by veracity rules and therefore the rules around propensity do not apply to evidence of that kind.

Question 135

When may the prosecution offer propensity evidence about a defendant as person Section 43 Evidence Act 2006?

Answer 135

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 defedant.

Question 136

When assessing the probative value of evidence, what may the judge consider?

Answer 136

• The frequency the relevant acts etc occurred
• The connection in time
• The extent of similarity in the acts
• The number of persons making allegations against the defendant
• Whether the allegations may be a result of collusion or suggestibility
• The extent to which the circumstances are unusal

Question 137

When assessing the prejudicial effect of evidence on the defendant, what must the judge consider?

Answer 137

• Whether the evidence is likely to unfairly predispose the fact-finder against the defendant and
• Whether the fact finder will tend to give disproportionate weight in reaching a verdict to evidence of other acts or omissions

Question 138

When is propensity admissible in deception charges?

Answer 138

Where there is a sufficiently strong connection between the offences.

Question 139

What is an example of propensity evidence being admissible in a charge of deception?

Answer 139

Evidence that other cheques drawn by the defendant were dishonoured may be evidence of the circumstances in which the cheque that is the subject matter of the charge was drawn, and therefore directly relevant to the defendants state of mind when he or she issued it.

Question 140

When would propensity evidence not be admissible in a charge of deception?

Answer 140

Persistent dishonesty across the board, embracing a number of offences, would not in itself bring the propensity rule into play. It is more likely to be deployed in cases involving specific offences with a discernable methodology or pattern

Question 141

What did R v Sharma conclude in relation to propensity evidence?

Answer 141

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

Question 142

What is the definition of “Title”?

Answer 142

A legal right to the property.

Question 143

What title can a person pass on?

Answer 143

As per Section 149 Contract and Commercial law, a person cannot give better title to property than they own.
e.g. a seller who has no rights of ownership to the goods purports to pass title to a buyer, the buyer can receive no greater interest in the goods than the seller had.

Question 144

What is the difference between theft and deceit in regard to title?

Answer 144

A thief never gets title. However, a person, who by deception or other deceit, induces another to hand over the goods (and title), title will pass.

Question 145

What is voidable title?

Answer 145

A title obtained by deception, fraud, duress, or misrepresentation is called ‘voidable title’ and means that the title can be voided by the sellar.

Question 146

What does it mean if the defrauder has voidable title?

Answer 146

That until the title is voided, they can confer good title on to anyone who acquires the goods from him or her in good faith and for value

Question 147

As under Section 151 Contract and commercial law - what is the consequences of sale under voidable title?

Answer 147

If the seller has voidable title and sells the goods before the title has been voided then the buyer of those goods acquires a good title to the goods if the buyer buys the goods in good faith and without notice of the sellers defect of title.

Question 148

What is an example of obtaining good title?

Answer 148

The complainant believes an altered gift card given to him to be good and valuable, so he is happy to hand over not only possession of the goods but title to them as well. The result is that the offender obtains title, albeit a voidable title.

Question 149

What is a scenario that outlines a genuine sale?

Answer 149

B buys a car from A and pays cash for it
In this situation, B gains possession of the car and title to it
A intends to pass his title to B

Question 150

What is a scenario that outlines Unlawful taking / theft?

Answer 150

B steals or unlawfully takes a car from A
In this situation, B gains possession of the car but not the title, as A did not intend to pass the title on
A thief never gains title to the goods they steal

Question 151

What is a scenario that outlines Civil action?

Answer 151

A agrees to sell a vehicle to B
A has good title to the vehicle and passes title to B
B agrees to pay A $2000 in 4 instalments but only pays 1 instalment of $500.
A can bring a civil claim against B as they are an “unpaid seller”
Bs title is voidable by civil action
If B on sold the vehicle to C (who has no awareness of the circumstances) then C receives good title.
To void B’s title (prior to onselling) A can bring a claim to the small claims tribunal

Question 152

What is a scenario that outlines Obtained by Deception?

Answer 152

B meets with A with the intention of viewing As vehicle for sale.
B is a fraudster and has no intention or means to pay the asking price of $15 000
B agrees to buy the vehicle and provides false details about himself and leaves with the vehicle.
B makes no further contact and keeps the vehicle.
B obtains possession and title because A intended to pass over title.
B’s title can be regarded as voidable as it has been obtained by deception
B has title until it is voided by A.
If B sells it before it is voided - he confers good title to the seller

Question 153

If a person is convicted of fraud after he has conferred good title to another person, can the goods be reclaimed by the initial owner?

Answer 153

No, the buyer does not lose title to the property that they obtained good title to.

Question 154

When is receiving not an offence?

Answer 154

As per Section 246 Crimes Act 1961
Receiving is not an offence when the property stolen or obtained has been returned to the owner or
legal title has been acquired by any other person

Question 155

What is the exception to the rule of “You cannot get a better title than the seller”?

Answer 155

If the original purchaser (deception) subsequently sells the goods to an innocent buyer then the title is made legal.

Question 156

What is the effect of Section 246 being receiving after restoration to the owner?

Answer 156

Is that a person, who in certain circumstances may be a receiver, cannot be convicted of receiving from a fraudulent offender who has a voidable title to goods dishonestly obtained by means of a deception.

Question 157

What if title has been voided by the complainant?

Answer 157

This will leave the fraudulent offender with mere possession only and the subsequent receiving of those goods will be an offence.

Question 158

Why must you exercise care when charging someone with receiving after voidable title has been voided by the complainant?

Answer 158

You must consider whether the receiver is liable as a party to the false representation or obtaining by deception instead. The receiver can be charged only if they received it in bad faith or knew of the defect in title.

Question 159

How is hire purchasing effected by title and receiving?

Answer 159

Where goods are purchased on hire purchase, title is not obtained until the full amount is paid.
Therefore, if a deposit is made on a hire purchase by A through false representation, then possession only is obtained. If A sells it to B with B having guilty knowledge, then B can be guilty of the offence of Receiving, as B has no title.

Question 160

There may be an offence under S220 where the defendant has intentionally:

Answer 160

Where the defendant:
- Failed to account to any other person for;
1. property received
2. proceeds of property received
- Dealt with;
3. property received by the defendant otherwise in accordance with the requirement of some other person
4. Proceeds of the property received by the defendant otherwise in accordance with the requirement of some other person

Question 161

An offence under Section 220 of the Crimes Act requires proof of two core elements, what are they?

Answer 161

(a) That he or she have received property on terms or in circumstances which, to the defendants knowledge, affect what the defendant may do with the property or its proceeds 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 162

What is the first mental element of an offence under S220?

Answer 162

The defendant must know that the acquisition of the property was on terms or requirements which require the defendant to account for the property or its proceeds, or to deal with the property or its proceeds in accordance with the direction of another person.

Question 163

When will the first mental element of an offence under S220 be met?

Answer 163

If the defendant is aware there are terms of some kind affecting his or her freedom of action; it should not be necessary that the precise details of those obligations be known.

Question 164

What is the second mental element of an offence under S220?

Answer 164

The defendant must have intentionally departed from his or her obligations.

Question 165

What is said in R v Sizemore in regards to the mental elements of an offence under S220?

Answer 165

That there is no requirement that the accused be shown to have acted dishonestly or without claim of right. The mere fact of intentionally failing to perform ones obligations is sufficient for liability.

Question 166

What is a test of whether something is to be included as a document?

Answer 166

A test of a document may be whether the writing conveys the same message as the spoken word in the minds of all people able to read it.

Question 167

For forgery, does the document have to be used?

Answer 167

There is no requirement that the defendant use the document, as long as the intention to do so is present. The defendant must know that the document is false.

Question 168

What is a false document?

Answer 168

Essentially, a false document must lie about itself. However, just because a lie is put in writing does not mean that the document on which it is written is a forgery. The document itself must lie about itself, or intend to convey a lie in cases where it has been written by someone intending to pass it off as having been written by someone else. These various forms of lies make a document false.

Question 169

What is an example of a false document?

Answer 169

A print of a forged Goldie painting is not a forgery - only the original forgery claiming to be an unforged original constitutes a forgery.

Question 170

How can you make a false document?

Answer 170

You can make a false document by making any material alteration to a genuine document.

Question 171

To make a false document involves alteration to a genuine document, what may these alterations involve?

Answer 171

• Additions
• Insertions
• Deletions
• Obliterations
• Erasures
• Removal of material or otherwise

Question 172

When is an alteration a material alteration?

Answer 172

It is a material alteration if it increases the value or negotiability of a document or instrument. A false document can be made by making material alterations to a genuine document.

Question 173

Is a photocopy a false document?

Answer 173

A photocopy of a false document claims merely to be a copy and therefore, does not tell a lie about itself.

Question 174

When is forgery complete?

Answer 174

You do not need to intend that a particular person will be affected by the forged document. Forgery is complete as soon as the document is made with knowledge and intent

Question 175

What must the prosecution prove for forgery?

Answer 175

While intent to deceive is not an essential element of forgery. Nonetheless, the prosecution must prove that, at the time of the alleged act, the defendant, knowing that the document was false, had intended either:
- To use the false document to obtain or
- That the false document be used or acted on as genuine

Question 176

What is not sufficient in relation to forgery?

Answer 176

It is not enough that the document is false and that its maker knows it is false. It must also be proved that the offender intended to deceive by means of that which is false.

Question 177

Is there a financial advantage to the charge of forgery?

Answer 177

Subsection (2) applies where there is no intention to obtain any financial or other specified advantage. The defendant must have intended that the document be used to mislead.

Question 178

Under Section 256(3) for forgery what is there no requirement of?

Answer 178

There is no requirement that the document be put to its intended use.

Question 179

Under Section 256(4) for forgery when may an offence have been completed?

Answer 179

The forgery may be completed and the offence committed even though the document is not completed or is not in a legally effective form.

Question 180

When may it be hard to prove forgery?

Answer 180

If a document is both incomplete and obviously erroneous, it may be hard to prove an intention that the incomplete document pass as genuine.

Question 181

What is an example of forgery?

Answer 181

• Writing an examination paper in the name of another person who is required to sit the exam
• Pre-dating a deed to give it priority over another
• Forging letters of recommendation for inclusion in a CV that are necessary to obtain a position
• Falsely completing a statement of service on a witness summons.

Question 182

Under Section 257 (2) CA 61 can a document made outside NZ be included?

Answer 182

A document made or altered outside NZ in a manner that would have amounted to forgery if the making or alteration had been done in NZ shall be deemed to be a forged document.

Question 183

What knowledge must you prove the defendant had for a charge against S257(1) being “Using forged documents”?

Answer 183

You must prove that the defendant knew the document was a forgery the time of the physical act of using, dealing with or acting upon it.

Question 184

To prove that the document is a forgery, you must prove that:

Answer 184

• the document was false
• the ‘user’ knew the the document had been ‘made’ with the knowledge and intent required under S256 of the Crimes Act 1961

Question 185

When is an offence against Section 258(1), being altering etc or reproducing documents complete?

Answer 185

It is comple as soon as the alteration or document is made with the relevant intent, although the offender may not have intended that any particular person should use or act upon the document OR act upon the basis of the absence of the document concealed or destroyed OR be induced to do or refrain from doing anything

Question 186

What is the definition of “alteration” ?

Answer 186

Alteration is not defined within this act but it is suggested that it carries its normal meaning - that a document is altered if its changed in some manner.

Question 187

What was the word “conceal” held to include?

Answer 187

• The actual hiding of a document
• the denial of its existence and
• the withholding of it in the face of a positive duty to produce it

Question 188

What is the definition of “destruction”?

Answer 188

For the purposes of this section it should be taken to mean “to end the existence of”

Question 189

What is the definition of “Reproduction” ?

Answer 189

For the purposes of this section, it should be taken to mean “Producing a copy or representation of or made in imitation”

Question 190

How may a defendant “cause” a document to be altered, concealed or destroyed?

Answer 190

Either:
- Through arranging for the necessary actions by another person OR
- By the use of a computer program or other device which will operate to alter, conceal or destroy the document.

Question 191

What are the two alternative mental elements of an offence against S258(1) Crimes Act 1961 being altering etc or reproducing documents?

Answer 191

The first: An intention to obtain by deception any property, privilege, service, pecuniary advantage, benefit or valuable consideration.
The second: An intention to cause loss

Question 192

What is there no requirement of for a charge against S258(1) being altering etc or reproducing documents and what does this mean?

Answer 192

There is no requirement that the loss is intended to be inflicted by deception. Thus the simple destruction of a document so as to deprive another of something of value might fall within the section. (It could also amount to a theft)

Question 193

What does the difference between the offence of forgery and one of altering or reproducing a document rest with?

Answer 193

It rests in the varying definitions of “document” and “intent”

Question 194

What are the differences in the definition of a document between the offence of forgery and one of altering or reproducing a document?

Answer 194

Any document can be altered or reproduced in the charge of altering, concealing destroying or reproducing a document however in the charge of forgery the document must be a false document.

Question 195

What are the differences in the definition of intent between the offence of forgery and one of altering or reproducing a document?

Answer 195

With forgery, an intent to deceive only is required NOT an intent to obtain by deception.
In the alternate offence of altering, concealing, destroying or reproducing a document, you must prove that the offender intended to obtain by deception.

Question 196

What must you note in regards to Section 259 CA 61 being Using altered or reproduced document with intent to deceive?

Answer 196

It does not matter that the document was made or altered outside NZ if it is being used, dealt with, or acted upon within NZ.

Question 197

What conduct is required for a charge under S259 CA 61 Using altered or reproduced document with intent to deceive?

Answer 197

The conduct element of the offence is simple in that it only requires that the defendant have used, dealt with, or acted on the document or caused any person to us, deal with or act upon it.

Question 198

What must the prosecution prove in a charge of S259 CA 61 being Using altered or reproduced document with intent to deceive?

Answer 198

They must prove that the document in question had previously been altered with intent to deceive, though it would not seem to be a need to identify the person or persons who had so altered it.

Question 199

For a charge of S259 CA 61 being Using altered or reproduced document with intent to deceive what are the mental elements that need to be satisfied?

Answer 199

• The defendant must know the relevant matters relating to the document in question, that is that the document had been altered with intent to deceive
• 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 etc.
• There must be an intention to acquire or retain the property etc or to cause loss “by deception”.

Question 200

What is the definition of “access” as defined in Section 248 Crimes Act 1961?

Answer 200

Access is widely defined and covers almost all interactions with a computer system. Such as using a computer at work and more remote forms of access such as viewing a website or using a virus.

Question 201

What does “access” require as defined in Section 248 Crimes Act 1961?

Answer 201

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 202

What is the definition of “computer system” as defined in Section 248 Crimes Act 1961?

Answer 202

It 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 with the internet with the potential of connection to millions of networked computers.

Question 203

Is the term “computer” defined?

Answer 203

No, which doesn’t pose a problem when it is a desktop computer, laptop or server but as technology advances, the courts will consider the ordinary usage of the device at the time of the offence.

Question 204

What is the distinction between S249(1) and S249(2) being accessing computer systems for dishonest purposes?

Answer 204

The distinction between these two offences is reflected in the words “thereby” and “obtains”.
(1) is directed at the situation where a person has actually accessed a computer system, obtains the offending material or causes loss whereas (2) is directed at someone who actually accesses the computer system with that intent regardless of the result.

Question 205

In R v Le Roy what was held in regards to a benefit (in regards S249 to accessing a computer system for dishonest purpose)?

Answer 205

The court in this matter said that it bore its natural meaning of any advantage and was not limited to financial or pecuniary advantage.

It further held that requiring the benefit to be obtained dishonestly was an unsustainably narrow approach to an interpretation in regards to S249 and that the dishonesty related to the conduct in obtaining access to a computer system

Question 206

What did the court in R v Billinsley note in regard to a loss for section 249 being accessing a computer system for dishonest purpose?

Answer 206

It noted that the person who suffers loss does not have to be aware of the loss at the time of the offence.

Question 207

What is the distinction between S250(1) and S250(2) CA 61 being Damaging or interfering with a computer system?

Answer 207

Section 240(1) criminalises the destruction, damaging or altering of a computer system that the defendant knows or ought to know would endanger life whereas:
S240(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 AND
S240(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 acts of third parties, will cause damage to the victims computer system.