deception short answer Flashcards
what are some examples of valuable consideration
- monetary payment for goods or services
- goods given in return for services provided
- issuing a false invoice to receive payment
to raise a reasonable doubt on the basis of a mistaken belief, the belief may be either..
- 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 authorised by a person entitled to authorise it
what is the nature of the belief in the definition of claim of right
- the belief must be a belief in a proprietary or possessory right in the property
- 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
what must the prosecution prove for the offence of using or attempting to use a document
the prosecution must prove that the offender used (or attempted to use) the document with the intent to obtain the property, service, valuable consideration, pecuniary advantage or valuable consideration
what is required to be proved for false representation
you must prove:
- there was an intent to deceive
- that there was a representation by the defendant
- that the representation was false; and that the defendant either:
i) knew it to be false in a material particular or
ii) was reckless whether it was false in a material particular
in what ways can a representation be made
oral, documentary or by conduct or a combination thereof
what must the prosecution prove with regards to knowledge
prosecution must prove that the defendant either knew the representation was false in a material particular or was reckless as to its falsity
how can knowledge be established
knowledge can be established by:
- an admission
- implication from the circumstances surrounding the event
- propensity evidence
the prosecution must prove that the defendant either knows or believes his representation to be false in a material particular or is reckless as to whether it is false
what must be proven with regards to recklessness
where recklessness is an element in the offence the following must be proven:
- the defendant consciously and deliberately ran a risk (subjective test)
- the risk was unreasonable to take in the circumstances as they were known to the defendant (objective test)
it must be proved that the defendant was aware of the risk and proceeded regardless (subjective test), but also that it was unreasonable for him to do so (objective test)
R v harney
in s240(2)(b), along with an intent to deceive, what else are you required to show
s240(2)(b) 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
what are some examples of privilege or benefit
- using another persons gym membership card so that you can use gym facilities
- access to medical services
- the withdrawal of an assault charge
- a reduction in sentence for an offence
what is ideal possession
ideal possession is set out in r v cox, it requires that both the physical and mental elements are proved to satisfy possession
the physical element requires physical custody or control over the item and can be either actual or potential
actual possession arises where the thing is in the persons physical possession, and potential possession arises when the person has the potential to have the thing in their control
the mental element is a combination of both knowledge that person possesses the item in question and an intention to possess the item
what are some examples of pecuniary advantage
pecuniary advantage basically means economic or monetary advantage
examples:
- cash from stolen goods
- clothing or cash obtained by a credit/eftpos card
- a discount (by using student ID card)
- avoiding or deferring payment of a debt
what must you prove for an offence against s240(1)(b) obtaining credit by deception
you must prove:
- the identity of the suspect and that they:
- by deception and without claim of right
- in incurring any debt or liability
- obtained credit
when must the intention to deceive exist
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
what does not amount to deceit
intent to deceive is not disclosed merely because there is:
- delay or non payment of the debt; or
- an inability to perform a bonafide intention
intent to deceive does not exist where payment is withheld because of genuine dissatisfaction with the service
what must you prove with regards to inducement
- that the false representation was believed; and
- that it was the consequence of that belief that the victim parted with his or her money
R v Granger
- a reasonable inference can be drawn in certain circumstances that the owner was induced by the representation to part with his money
what did r v morley conclude with regards to the loss alleged by the victim
the loss alleged by the victim must have been induced by, or caused in reliance upon the deception
the court concluded that the loss flowing from the deception must be assessed by the extent to which the complainants position before the deception had been diminished or impaired
what did the court require the prosecution to prove in r v morley
the court said the prosecution must prove that:
- the loss was caused by a deception
- it was reasonably foreseeable some more than trivial loss would occur, but
- need not prove the loss was intentionally caused
thus, there must be loss to “any other person” but there is no requirement that there be any benefit to anyone
what is the penalty for the offence of obtaining or causing loss by deception
over $1000 - 7 years imprisonment
between $500 - $1000 - 1 year imprisonment
under $500 - 3 months imprisonment
when is propensity evidence admissible in deception cases
when there is a sufficiently strong connection between the offences
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
r v sharma - the ultimate issue is the degree to which the probative value of the evidence outweighs its prejudicial effect
under s7 of the evidence act 2006 when is evidence relevant
under s7(3) evidence is relevant if it has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding
what is a voidable title
title obtained by deception, fraud, duress or misrepresentation, this means that the title can be avoided by the seller
how can a person avoid title
- to avoid title the person losing title must communicate with the person obtaining it
- they must take all other possible steps to bring it to that persons notice eg by writing a letter, text or phone call
- they must advise the police that the vehicle was obtained by deception
when does title pass
s19 of sale of goods act 1908:
where there is a contract for the sale of specific goods between the parties title passes when it was intended to pass by the parties
to ascertain this intention, consider: - the terms of the contract
- the conduct of the parties
- the circumstances of the case
what is the effect of s246(4) of the crimes act 1961 on title
s246(4) is an exception to the offence of receiving, whereby 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
the effect of this section 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
if the title is voided before it is sold to the person then then a legal title has not been acquired within the meaning of the section
how does hire purchase affect title and possession
where goods are purchased on hire purchase, title is not obtained until the full amount is paid
if a deposit is paid on hire purchase then possession only is obtained and subsequently the goods may later be received
what is section 25 of the sale of goods act 1908
if the seller of goods has a voidable title, but this title has not been avoided at the time of the sale, the buyer acquires good title to the goods, provided he buys them in good faith and without notice of the sellers defect in title
what two core elements need to be proved for an offence against s220 of crimes act 1961 (theft by person in special relationship)
- 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 proceeds or require the defendant to act in accordance with the requirements of another person; and
- that the defendant intentionally departed from the relevant obligation
what are the two mental elements required for an offence against s220 of the crimes act 1961 (theft by person in special relationship)
1) 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
2) the defendant must have intentionally departed from this obligation
r v sizemore - there is no requirement for the accused to act dishonestly or without claim of right, the mere fact of failing to perform ones obligations is sufficient for liability
what is a false document
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
eg a print of a forged goldie painting is not a forgery, only the original forgery claiming to be an unforged original constitutes a forgery
what are some examples of material alteration
you can make a false document by making any material alteration to a genuine document, under s256 forgery, such alterations might involve:
- additions
- insertions
- deletions
- obliterations
- erasures
- removal of material or otherwise
an alteration is a material alteration if it increases the value or negotiability of the document or instrument
when is the forgery complete
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
what is the intent required for forgery
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
what are some examples of forgery
- writing an exam 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
what must you prove the defendant knew for the offence of using a forged document
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
to prove the document is a forgery you must prove that:
- the document was false
- the user knew the document had been made with the knowledge and intent required under s256 of the crimes act 1961
what are the mental elements for an offence against s258 of the crimes act 1961
the first is an intention to obtain by deception any property, privilege, service, pecuniary advantage, benefit or valuable consideration, there must be an intention to obtain by deception
the alternative mental element is an intention to cause loss
there is no requirement that the loss is intended to be inflicted via deception, the mere destruction of a document so as to deprive a person of something value might fall within the section
what are the mental elements required for the offence of using altered or reproduced document with intent to deceive under s259 of crimes act 1961
1) the first mental element is that the defendant must know that the document has been altered with intent to deceive
2) secondly, the defendant must have intended the employment of the document or the causing of another to use or rely on it, to obtain by deception any property, privilege, service, pecuniary advantage, benefit or valuable consideration or to cause loss to any other person
3) there must be an intention to acquire or retain the property etc or to cause loss by deception
what is required to prove a false representation
to prove a false representation you must prove:
- that there was an intent to deceive
- that there was a representation by the defendant
- that the representation was false, and the defendant either
- knew it to be false in a material particular or was reckless whether it was false in a material particular
what are the three ways in which representations can be made
representations can be made orally, documentary or by conduct
when can a person keep title of goods obtained by fraudulently inducing another to hand them over
a person can keep title of goods obtained fraudulently if the original purchaser subsequently sells the good to an innocent buyer who is not aware of the defect in title, then the title is made legal
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 instructions or communications may pass
what intents must be proven for a charge of accessing a computer system for dishonest purpose under s249(1) and 249(2)
it must be proved that the offender intended to:
- obtain any property, privilege, service, pecuniary advantage, benefit or valuable consideration; or
- causes loss to any other person
what is the difference between s249(1) and s249(2) of the crimes act 1961
s249(1) is directed at the situation where a person has actually accessed a computer system, obtains the offending material or causes loss
s249(2) is directed at someone who actually accesses the computer system with that intent regardless of the result
what is propensity evidence
s40 of evidence act 2006
1)a) propensity evidence means 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 is alleged to have been involved;
but does not include evidence of an act or omission that is
- 1 of the elements of the offence for which the person is being tried; and
- the cause of action in the proceeding in question
when investigating fraud uses of credit cards must information must you obtain from the bank accounts manager
- account holders full name and details
- date account was opened
- account history and how it has been operated
- date the cheque/credit card reported missing
- how and who reported the loss
- whether the account holder is suspected of issuing valueless cheques
- details of any cheques dishonoured and returned
what details should you find out when an account has been opened with fictitious details
- the account number and date it was opened
- nature and amount of first deposit
- details of any other deposits
- details used when account was opened
- details of employee who opened the account
- serial numbers of cheques supplied
- descriptions of suspects
what thins may a judge consider when assessing the probative value of evidence
- frequency with which the acts, omissions, events or circs which are the subject of the evidence have occurred
- connection between the AOEC which are the subject of the evidence and the AOEC which constitute the offence being tried
- extent of similarity
- number of persons making similar allegations against the defendant
- whether allegations in (d) may be result of collusion or suggestibility
- the extent at which the AOEC are unusual
company fraud investigation types
Category A
- large scale thefts and other dishonesty offences against employers and employees
Category B
- dishonesty offences against financial institutions by people outside the institutions obtaining money from it through deception
Category c
- commercial fraud against the public
Category D
- dishonesty offences committed by professional people in positions of trust
resources, source type and type of potential assistance
police accountants and legal officers:
- give advice, can assist with production orders, search warrants and charges
Ministry of Business (sources of info):
- registrar of companies
- companies office
- official assignee
- insolvency services
Commerce commission:
- assist with Fair trading Act 1986
- pyramid selling
Financial markets authority:
- assist with matters relating to financial markets authority act 2011 and issues of prospectuses
Customs:
- matters involving international travel and CAPPS alerts
what actions of a defendant may give rise to an offence under s220
where the defendant:
- failed to account to any other person for property received by the defendant
- failed to account to any other person for the proceeds of property received by the defendant
dealt with property received by the defendant otherwise than in accordance with the requirements of some other person
- dealt with the proceeds of the property received by the defendant otherwise than in accordance with the requirements of some other person
