deception short answer

Question 1

what are some examples of valuable consideration

Answer 1

• monetary payment for goods or services
• goods given in return for services provided
• issuing a false invoice to receive payment

Question 2

to raise a reasonable doubt on the basis of a mistaken belief, the belief may be either..

Answer 2

• 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

Question 3

what is the nature of the belief in the definition of claim of right

Answer 3

1. the belief must be a belief in a proprietary or possessory right in the property
2. the belief must be about rights to the property in relation to which the offence is alleged to have been committed
3. the belief must be held at the time of the conduct alleged to constitute the offence
4. the belief must be actually held by the defendant

Question 4

what must the prosecution prove for the offence of using or attempting to use a document

Answer 4

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

Question 5

what is required to be proved for false representation

Answer 5

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

Question 6

in what ways can a representation be made

Answer 6

oral, documentary or by conduct or a combination thereof

Question 7

what must the prosecution prove with regards to knowledge

Answer 7

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

Question 8

how can knowledge be established

Answer 8

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

Question 9

what must be proven with regards to recklessness

Answer 9

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

Question 10

in s240(2)(b), along with an intent to deceive, what else are you required to show

Answer 10

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

Question 11

what are some examples of privilege or benefit

Answer 11

• 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

Question 12

what is ideal possession

Answer 12

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

Question 13

what are some examples of pecuniary advantage

Answer 13

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

Question 14

what must you prove for an offence against s240(1)(b) obtaining credit by deception

Answer 14

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

Question 15

when must the intention to deceive exist

Answer 15

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 16

what does not amount to deceit

Answer 16

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

Question 17

what must you prove with regards to inducement

Answer 17

• 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

Question 18

what did r v morley conclude with regards to the loss alleged by the victim

Answer 18

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

Question 19

what did the court require the prosecution to prove in r v morley

Answer 19

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

Question 20

what is the penalty for the offence of obtaining or causing loss by deception

Answer 20

over $1000 - 7 years imprisonment

between $500 - $1000 - 1 year imprisonment

under $500 - 3 months imprisonment

Question 21

when is propensity evidence admissible in deception cases

Answer 21

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

Question 22

under s7 of the evidence act 2006 when is evidence relevant

Answer 22

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

Question 23

what is a voidable title

Answer 23

title obtained by deception, fraud, duress or misrepresentation, this means that the title can be avoided by the seller

Question 24

how can a person avoid title

Answer 24

• 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

Question 25

when does title pass

Answer 25

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

Question 26

what is the effect of s246(4) of the crimes act 1961 on title

Answer 26

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

Question 27

how does hire purchase affect title and possession

Answer 27

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

Question 28

what is section 25 of the sale of goods act 1908

Answer 28

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

Question 29

what two core elements need to be proved for an offence against s220 of crimes act 1961 (theft by person in special relationship)

Answer 29

• 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

Question 30

what are the two mental elements required for an offence against s220 of the crimes act 1961 (theft by person in special relationship)

Answer 30

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

Question 31

what is a false document

Answer 31

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

Question 32

what are some examples of material alteration

Answer 32

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

Question 33

when is the forgery complete

Answer 33

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 34

what is the intent required for forgery

Answer 34

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 35

what are some examples of forgery

Answer 35

• 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

Question 36

what must you prove the defendant knew for the offence of using a forged document

Answer 36

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

Question 37

what are the mental elements for an offence against s258 of the crimes act 1961

Answer 37

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

Question 38

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

Answer 38

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

Question 39

what is required to prove a false representation

Answer 39

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

Question 40

what are the three ways in which representations can be made

Answer 40

representations can be made orally, documentary or by conduct

Question 41

when can a person keep title of goods obtained by fraudulently inducing another to hand them over

Answer 41

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

Question 42

what actions would involve accessing a computer system

Answer 42

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 43

what intents must be proven for a charge of accessing a computer system for dishonest purpose under s249(1) and 249(2)

Answer 43

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

Question 44

what is the difference between s249(1) and s249(2) of the crimes act 1961

Answer 44

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

Question 45

what is propensity evidence

Answer 45

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

Question 46

when investigating fraud uses of credit cards must information must you obtain from the bank accounts manager

Answer 46

• 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

Question 47

what details should you find out when an account has been opened with fictitious details

Answer 47

• 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

Question 48

what thins may a judge consider when assessing the probative value of evidence

Answer 48

• 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

Question 49

company fraud investigation types

Answer 49

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

Question 50

resources, source type and type of potential assistance

Answer 50

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

Question 51

what actions of a defendant may give rise to an offence under s220

Answer 51

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