Definitions and Concepts Flashcards
Obtain
Means to obtain or retain for himself, herself or some other person
Property
Property includes real and personal property, and any estate or interest in any real or personal property, money, electricity, and any other debt, and any thing in action, and any other right or interest.
Service
Service is limited to financial and economic value, and excludes privileges or benefits.
Pecuniary advantage
Anything that enhances the accused’s financial position. It is that enhancement which constitutes the elements of advantage.
Valuable consideration
A valuable consideration is anything capable of being a valuable consideration, whether of a monetary kind of of any other kind, in short money or moneys worth.
The scope of valuable consideration is wider than a pecuniary advantage.
Name 3 examples of valuable consideration
- Monetary payment in return for goods or services
- Goods given in return for services provided
- Issuing a false invoice to receive payment for goods not supplied
Dishonesty
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.
Claim or right
Means a belief at the time of the act in a proprietary or possessory right to the 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
Takes
As with theft. Takes is when the offender physical moves the property or causes it to be moved.
Uses
Can include a single action or the continuing use of a document.
Document
YOU DO NOT HAVE TO KNOW THIS IN FULL
Key words for elements explaining…
Means a document (or part of) in any form.
Paper or other material for writing or printing that is capable of being read.
Photograph, plate, slide, film, negative
Disc, tape, sound track, capable of being reproduced
used for recording, storing information
Attempts (key elements)
Intent to commit an offence
That they did, or omitted to do, something to achieve that end
That their act or omission was sufficiently close (proximate).
Deception
S240(2)
Deception means—
(a) a false representation, whether oral, documentary, or by conduct, where the person making the representation intends to deceive any other person and—
(i) knows that it is false in a material particular; or
(ii) is reckless as to whether it is false in a material particular; or
(b) an omission to disclose a material particular, with intent to deceive any person, in circumstances where there is a duty to disclose it; or
(c) a fraudulent device, trick, or stratagem used with intent to deceive any person.
False Representation
The representation should be false and the defendant must know or believe that it is false in a material particular or be reckless as to whether it was false.
Wilful blindness will suffice.
Representation
It must be capable of being false so it must contain a proposition of fact.
Examples have included representations about a past or present fact, about a future event, or about an existing intention, opinion, belief, knowledge or other state of mind
What is required to be proven for Deception?
1) That there was an intent to deceive
2) That there was a representation by the defendant
3) That the representation was false and that the defendant either
- knew it was false in a material particular or
- was reckless as to whether it was false in a material particular
Intent
In a criminal law context there are two specific types of intent. Firstly, there must be an intention to commit the act and secondly an intention to get a specific result.
Name examples of false representations (1x orally, 1x by conduct, 1x documentary)
ORALLY - verbally claiming to own goods that are subject to hire purchase agreement
BY CONDUCT - representing oneself to be a collector for a charity by carrying a collectors bucket
DOCUMENTARY - presenting a false certificate of qualification
How can you prove knowledge in deception cases in relation to false representations?
Knowledge can be established by
- an admission
- implication from circumstances of the event
- propensity evidence
Material particular
Material particular is not defined in the Crimes Act and can be given its usual meaning of an important, essential or relevant detail or item.
A minor detail may amount to a “material particular” if it is of consequence to the facts of the case.
Recklessness
Consciously and deliberately taking an unjustified risk that was unreasonable in the circumstances.
Omission
Failure to act, inaction
Duty to disclose
s240(2)(b) requires you to show that there was some material particular that was not disclosed and that the defendant was under a duty to disclose and failed to.
Device
a plan, scheme or trick
must be fraudulent and morally wrong
Trick
An action or scheme undertaken to fool, outwit or deceive.
must be fraudulent and morally wrong
Stratagem
A cunning plan or scheme especially for deceiving an enemy, or trickery.
(must be fraudulent and morally wrong)
Privilege or benefit
Not limited to a pecuniary nature. There does not need to be financial loss or injury to the person defrauded.
Examples of privilege or benefit under s240(1)(a)
1) using another persons gym membership card
2) access to medical services
3) withdrawal of an assault charge
4) reduction in sentence for an offence
What is the difference between theft and deception in terms of “title”?
Title is not passed on in theft, person obtains possession only.
Title is passed in deception albeit a voidable title, person obtains possession and voidable title.
Control
Means to exercise authoritative or dominating influence or command over it.
Examples of pecuniary advantage
- cash from stolen goods
- clothing or cash obtained from stolen EFTPOS card
- a discount (from showing student ID)
- avoiding or deferring payment of debt
Debt
Means money owing from one person to another
Liability
Means a legally enforceable financial obligation to pay, such as the cost of a meal.
Examples of credit obtained
1) obtaining money on loan
2) extending existing overdraft facilities
3) renting or leasing a dwelling
MUST BE LEGALLY ENFORCEABLE
Discuss timing of intent in relation to s240(1)(b)
The intention to deceive is essential to the offence and must exist at the time when the deception is perpetrated.
Does an intent to deceive exist when payment is withheld due to dissatisfaction of service?
No
Induces
To persuade, bring about or give rise to
What evidence should you obtain from a victim in relation to proof of inducement?
From the person defrauded find out
- that the false representation was believed
- that it was the consequence of that belief that the victim parted with his/her money
Deliver over
is to surrender up someone or something
Execute
Is to put a course of action in to effect
Endorse
Is to write or sign a document
Alter
Is to change in character or composition, typically in a small but significant way
Accept
Is to receive something
Loss
Not defined by statute but in most cases will involve financial detriment to the victim. must be direct loss not anticipated loss.
Loss is assessed by how much the complainants position prior has been diminished or impaired.
What must be proved in terms of Loss under s240(1)(d)?
- the loss was caused by deception
- it was reasonably foreseeable that some, more than trivial, loss would occur but need not prove the loss was intentionally caused.
Outline the penalties for Deception Offences
7 years imprisonment = more than $1000
1 year imprisonment = between $500 - $1000
3 months imprisonment = less than $500
Propensity Rule s40 Evidence Act 2006
Means evidence that tends to show a person propensity to act in a particular way or to have a particular state of mind.
When may evidence of propensity be called in cases of deception?
Propensity evidence is admissible in cases of deception where there is a sufficiently strong connection between the offences.
Whether on previous or later occasions to the offence charged.
What is the ultimate issue for propensity evidence to be admissible?
The ultimate issue is the degree to which the probative value of evidence outweighs its prejudicial effect.
Title
A legal right to the property
What are the ways a person can void a title?
1) Communicate with the defrauder by take all other reasonable steps to bring it to the defrauders notice, e.g. by writing a letter
2) Advise the police that the goods were obtained by deception.
Voidable Title
A title obtained by deception, fraud, duress or misrepresentation is called a voidable title. The title can be avoided by the seller. Until the title is avoided, the defendant can confer good title to anyone who acquires the goods up until title is avoided.
What assistance is available to be accessed from Ministry of Business, Innovation and Employment in the investigations of company fraud?
· Registrar of Companies.
· Companies Office.
· Official assignee.
· Insolvency Services
Computer system
computer system means:
(i) A computer; or
(ii) 2 or more interconnected computers; or
(iii) Any communication links between computers or to remote terminals or another device; or
(iv) 2 or more interconnected computers combined with any communication links between computers or to remote terminals or any other device; and
(b) includes any part of the items described in paragraph (a) and all related input, output, processing, storage, software, or communication facilities, and stored data.
What are the 2 core elements of proof required for a charge under s220 Crimes Act 1961?
- that he received property
- on terms or in circumstances which, to the accused’s knowledge, affect what the accused may do with the property or its proceeds or
- require the accused to act in accordance with the requirements of another person, and
- that the accused intentionally departed from the relevant obligation.
Elements of Forgery s256(1) Crimes Act 1961
Everyone is liable to imprisonment for a term not exceeding 10 years who
- makes a false document
- with the intention of using it to obtain any property, privilege, service, pecuniary advantage, benefit, or valuable consideration.
Elements of Forgery s256(2) Crimes Act 1961
Everyone is liable to imprisonment for a term not exceeding 3 years who
- makes a false document
- knowing it to be false
- with the intent that it in any way be used or acted upon as genuine
- whether in New Zealand or elsewhere
False document
Means a document that-
-wholly or in part purports to be made by any person who did not make it or a fictitious person
Essentially a false document itself must lie about itself
What are some ways a document can be altered?
- additions
- deletions
- insertions
- obliteration
- erasures
- removal of material
Is a photocopy of a false document, a false document in itself?
No
When is forgery complete?
As soon as the document is made with knowledge and intent. The use is a separate offence.
What are the two intents for forgery?
Had intended either:
1) to use the false document to obtain
2) that the false document be used or acted on as genuine
Three examples of Forgery
1) writing an examination paper in someone else’s name
2) forging letter of recommendation
3) falsely completing a statement of service for summons
Elements of Using a Forged Document
Knowing a document to be forged-
Uses the document to obtain any property, privilege, service, benefit, pecuniary advantage, or valuable consideration OR
Uses, deals with or acts upon the document as if it were genuine OR
Causes any other person to use, deal with or act upon the document as if it were genuine
Conceal
The hiding of a document, the denial of a documents existence, the withholding of it in the face of a positive duty to produce the document.
Destruction
to end existence of
Reproduction
producing a copy or representation of, or made an imitation
What are the three mental elements for using an altered or reproduced document with intent to deceive?
1) the defendant must know that the document had been altered or reproduced
2) the defendant must have intended to use the document to obtain by deception any property or cause loss to any person
3) there must be an intention to acquire or retain the property etc.
What is the difference between forgery and altering or reproducing a document?
- With forgery, an intent to deceive only is required, not an intent to obtain by deception.
- In the offence of altering, concealing, destroying, or reproducing a document, you must prove that the offender intended to obtain by deception.
- Any document can be altered or reproduced in the charge of altering, concealing, destroying, or reproducing a document.
- In a charge of forgery the document must be a ‘false document’ as defined in section 255 of the Crimes Act 1961.
Actus reus/Conduct element of using an altered or reproduced document?
uses, dealt with, or acted on the document as if it was genuine or cause any person to use, deal or act upon it.
Access
In relation to any computer system means instruct, communicate with, store data in, receive data from or otherwise make use of any resources of the computer system
What is the difference between the two offences for accessing a computer system? S249(1) and s249(2)
249(1) - where a person has actually accessed a computer system obtains the property etc or causes loss to any person
249(2) - where a person actually accesses the computer system with that intent regardless of the result
What information should Police obtain from bank accounts manager?
- The account holder’s full name, occupation, private and business addresses and telephone numbers
- The date the account was opened
- The account history and how it has been operated
- The date the cheque book or credit card was reported missing
- How and by whom a loss was reported
- The serial numbers of any missing cheques
- Details of any cheques dishonoured and returned
- Whether the account holder is suspected of issuing valueless cheques
Apart from the normal bank enquiries for cheque offences, what possible enquiries should you make regarding the account opening?
- The account number and the date it was opened
- The nature and amount of the first deposit
- Details of any other deposits
- The details used when the account was opened
- Descriptions of the suspect and any of their associates at the time
- The names and addresses of the employee who opened the account and any other employees who can identify the suspect.
- The serial numbers of the cheques supplied
- Details of the dishonoured cheques and the people or companies defrauded
What are some sources of specialist information when investigating company fraud?
- Police accountants and legal officers
- Ministry of Business, Innovation and Employment
- Commerce Commission
- Financial Markets Authority
- NZ Customs
- Liquidators and receivers
To prove a charge of theft by a person in a special relationship under s220 Crimes Act 1961. You must prove the offender knew they had to…
- account to any other person for the property or for any proceeds arising from the property OR
- to deal with the property, or any proceeds arising from the property in accordance with the requirements of any other person
What things may a judge consider when considering propensity evidence?
(a) The frequency with which the acts have occurred
(b) The connection in time between the acts
(c) The extent of the similarity between the acts
(d) The number of persons making allegations against the defendant
(e) Whether the allegations in totality may be the result of collusion or suggestibility
(f) The extent to which the acts are unusual
