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Deception CIB 008 > General Q&A > Flashcards

General Q&A Flashcards

1
Q

Lewis’ car is in the local garage after being repaired. He can’t afford to pay for it, however the mechanic places a lien over the vehicle until payment of the debt was made, so Lewis receives the car, he then drives home intending to never pay back the debt. What is the offence?

A

Lewis has obtained the vehicle by deception, as the mechanic has a special interest in the vehicle.

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2
Q

What does claim of right in relation to any act mean?

A

A belief at the time of the act in a proprietary or possessory right in the property.

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3
Q

To prove a charge of theft by a person in a special relationship under s220(1) CA61 it is necessary to prove that the person knew they had to:

A

Account to any other person for the property or for any proceeds arising from the property.

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4
Q

The case of R v Morley discussed the matter of loss in relation to s240(1)(d) CA61 (causing loss by deception). What was held in this matter regarding how the loss was caused?

A

The prosecution must prove that the loss alleged by the victim must have been induced or caused by the deception.

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5
Q

Cameron McKay booked a motel and upon checking in, he offered to pay in advance. He was told that he could pay the account in the morning, however he left early without checking out or paying. Is he liable for a deception offence?

A

No - the intention to deceive must exist AT THE TIME when the deception is perpetrated. Credit is obtained but a later decision not to pay is insufficient.

R v McKay - credit had been obtained on booking in but at that time the accused did not possess an intent to deceive.

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6
Q

For a charge under s240(1)(b) CA61 (obtaining credit by deception), the obligation to repay means?

A

The obligation to repay must be a legally enforceable one.

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7
Q

A STD - stratagem, trick or device - covers any form of fraudulent conduct. What must this conduct be accompanied with?

A

An intent to deceive.

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8
Q

What is the definition of a false document under 255(a)

A

A document of which the whole or any material part purports to be made by any person who did not make it, or by a fictitious person.

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9
Q

The serious fraud office investigates serious or complex fraud complaints. An investigator from that office may only make an arrest of a fraud suspect…

A

Under no circumstances does the investigator have power of arrest.

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10
Q

What are the definitions of the terms ‘debt’ and ‘liability’?

A
  • Debt is money owing from one person to another

* Liability means legally enforceable financial obligation to pay - such as the cost of a meal

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11
Q

where a person is induced to part with goods by deception, what are two steps they could take to avoid the offenders title?

A
  • Advise the offender by letter or in person that they are aware of the deception
  • If unable to contact the offender they may issue a public notice
  • make a complaint to police about the deception
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12
Q

To successfully prosecute a person on a charge of using an altered or reproduced document with intent to deceive, under s259 CA61, what are the three mental elements you must prove?

A
  • defendant must know the document had been altered with intent to deceive
  • the defendant must have intended to obtain by deception any property etc.. by using the document themselves or causing someone else to use it
  • must be an intent to acquire or retain property or cause loss by deception
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13
Q

Representation is not defined. What must it contain as per the interpretation of Simester & Brookbanks?

A

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

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14
Q

[Scenario] an offender knowingly presents to the retailer an item with two price tags for differing amounts. Aware that the higher amount is the correct price, he shows the lower price to the checkout operator and obtains the item for the lower price. He is apprehended two days later. What is the offence and who has title to the item?

A
  • the offence is obtains property by deception

* the offender has title although it is voidable title

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15
Q

The prosecution must establish either that the defendant knows or believes his representation is false in a material particular or is reckless as to whether it is false. State your understanding in relation to the term, false in a material particular? What is the relevant case law

A
  • It is an important, essential, relevant detail or item.

* R v Mallett. A matter will be a material particular if it is something important or something that matters.

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16
Q

Investigations into company fraud complaints will usually involve inquiries with the Ministry of Commerce. What are four other possible sources?

A
  • registrar of companies
  • companies office
  • official assignee
  • insolvency services
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17
Q

What knowledge must an offender have to be liable for making a false representation?

A
  • Must be false.
  • They must know or believe that the representation was false in a material particular or be reckless whether it is false.
  • Absolute certainty is not required and willful blindness will suffice.
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18
Q

How can knowledge be established?

A
  • admission
  • surrounding circumstances
  • propensity evidence
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19
Q

What is the definition of a computer under s248 CA61?

A
  • a computer
  • two or more interconnected computers
  • any communication links between computers or to remote terminals or devices
  • two or more interconnected computers combined with communication links between computers to remote terminals
  • includes any input or output processing, storage and software
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20
Q

Propensity evidence may be relevant in some deception cases. When may propensity be called in cases of deception?

A

It is admissible in cases of deception where there is a sufficiently strong connection between the offences.

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21
Q

[Criminal Liability]
• Cameron and Lewis get divorced
• Cameron is awarded the Jaguar
• Cameron doesn’t tell Dean about the divorce and leaves the Jag at his house while he is away
• Lewis takes the chance to recover the car
• Lewis goes to Dean’s and spins a yarn about the car
• Dean is happy and gives over the keys

A

Obtains by Deception
s240(1)(a) CA61 7 years
• Everyone
• By any deception and without claim of right
• Obtains ownership / possession of / control over any property ETC
• Directly or indirectly

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22
Q

Intent to deceive is not applicable in which two scenarios?

A
  • delay or non-payment of debt

* an inability to perform an intention

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23
Q

What is credit?

A

Money owing with a period of time to pay

24
Q

A senior executive of a company who is acting on behalf of the company causes loss to another company. Who is criminally responsible?

A

The company is criminally liable.

25
Q

When is title obtained in cases of deception and someone receives the property?

A

When the innocent receiver is given title where the property was obtained by deception but has not been voided by the deceived owner.

26
Q

What must exist in relation to debt or liability in deception?

A

Debt or liability (incurred) must be legally enforceable.

27
Q

An item is located at Dean’s property. What must be proved in relation to possession?

A

That he readily had access to it.

28
Q

Three examples of where credit may be obtained by a third person?

A
  • obtaining money on a loan
  • extending existing overdraft facilities
  • renting or leasing a dwelling
29
Q

When will both possession and title pass on to an innocent purchaser?

A

When property is bought by a third person who obtained it before the original owner voids any title.

30
Q

What is the extended definition of ‘obtain’ in s217 CA61? (Credit - 3rd person)

It will be sufficient that the defendant obtained the extension of credit to..?

A

another person.

31
Q

What is required to prove that a defendant had control over an item?

A

If it is proved that the accused did in fact exercise some control over the item.

32
Q

For propensity evidence to be admissible, what is the ultimate issue?

A

The degree to which the probative value of the evidence outweighs the prejudicial effect on the accused.

33
Q

What are the three main points held in R v Cameron regarding recklessness?

A
  • defendant recognized there was a real possibility that their actions would bring about the result
  • that the proscribed circumstances existed
  • having regard to the risk those actions were unreasonable
34
Q

Cameron hires a drill from a shop using false details, the drill is found at his home some months later and he claims he was going to return it, but didn’t get around to it. What is the offence?

A

Obtains by deception - s240(1)(a) CA61
• the shop owner has title of the drill as he did not fully part with the drill as it was only for hire and was not sold to Cameron.

35
Q

Dean is a director of a small company installing windows for domestic property owners. He has a large backlog of jobs to complete due to manufacturing delays by his suppliers in making the windows. His financial situation deteriorates and he continues to receive deposits from is bills. Dean thinks he can trade his way out of the financial difficulty. Is he criminally liable for deception?

A

Dean has not committed an offence. The problem is a result of delays caused by his suppliers in making the windows for his clients.

36
Q

What are the essential ingredients of forgery as set out in s256(1) CA61?

A
  • Everyone
  • Who makes a false document
  • With an intention of using it to obtain any property etc..
37
Q

Apart from false representation, what matters would constitute a deception as defined under s240(2) CA61?

A
  • Intent to deceive
  • a representation made by the offender
  • omission to disclose a material particular with intent to deceive any person when there was a duty to disclose it
  • a fraudulent device, trick or stratagem used with intent to deceive any person.
38
Q

When interviewing a person who alleges they have been defrauded (stolen credit card or cheque) what two questions should you ask as an investigator?

A
  • find out the identity used by the offender

* obtain descriptions of the offender, property obtained and vehicle used.

39
Q

What is the definition of ‘deception’ in s240(2)? (Main point only)

A

A false representation (oral / documentary / conduct) made with intent to deceive any other person and the person making the false representation:
• knows it to be false in a material particular or
• is reckless as to whether it is false in a material particular

40
Q

What are the ingredients of Using a Document?

A
  • Everyone
  • with intent to obtain any property etc
  • dishonestly and without claim of right
  • uses or attempts to use any document
41
Q

What was held in R v Morley relating to s240(2) in relation to intention to deceive?

A
  • An intention to deceive requires that the deception is practiced in order to deceive the affected party
  • Purposeful intent must exist at the time of the deception.
42
Q

You are investigating a series of cheque frauds where an account has been opened and a cheque book obtained using false details. What are four possible enquiries you should make regarding the offender opening the account with the bank?

A
  • Account number and when it was opened
  • nature of the first deposit
  • details of any other deposits
  • details used when account was opened
  • descriptions of the suspect and any of their associates at the time / CCTV
  • details of the employee who opened the account
  • serial numbers of cheques supplied
  • details of people defrauded
43
Q

What are the ingredients of Obtaining Credit by Deception - s240(1)(b) CA61?

A
  • Everyone
  • By any deception
  • and without claim of right
  • in incurring any debt or liability
  • obtains credit
44
Q

When investigating company fraud, what sources of information must you canvass early to assist in your investigation?

A
  • Police accountants and legal officers
  • Ministry of business, innovation and employment
  • Commerce Commission
  • Financial Markets Authority
  • NZ Customs
  • Liquidators and receivers
45
Q

[Criminal Liability]
• Lewis goes to a retail store
• see’s a drill with a price tag of $350
• takes a $59 price tag off a cheaper drill and places it on the more expensive drill
• takes the drill to the checkout and buys it at $59

A

Obtains by Deception - s240(1)(a) CA61
• Everyone
• By any deception (false representation)
• Without claim of right
• Obtains ownership or possession of or control over any property / pecuniary advantage etc.

46
Q

In relation to s240(2) CA61, besides making a false representation orally, what other ways can a false representation be made?

A
  • Documentary
  • Conduct
  • Fraudulent device, trick or stratagem.
47
Q

What is the definition of Obtains as per s217 CA61/

A

In relation to any person it means to obtain or retain for him or herself or for any other person.

48
Q

What is the relevant case law regarding the definition of a pecuniary advantage and what does it state?

A

A pecuniary advantage is anything that enhances the accused’s financial position.

49
Q

What are the two core elements for an offence under s220 - theft by a person in a special relationship?

A
  • Defendant received property in circumstances which require them to act within the requirements of the other person regarding the property or it’s proceeds
  • the defendant then departed from the relevant obligation
50
Q

What is the difference between forgery and reproduction of a document?

A
  • forgery - an intent to deceive is required, not an intent to obtain by deception
  • reproducing/CAD - must prove that the offender intended to obtain by deception
51
Q

Define claim of right under s2 CA61

A
  • 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 the offence committed
52
Q

Define the term ‘access’ under s248 - computer systems?

A

Means to instruct, communicate with, store data in, receive data from, or otherwise make use of any resources of the computer system.

53
Q

Define the term ‘property’ under s2 CA61

A 
Property includes: 
• any real or personal property
• any estate or interest in any real or personal property
• money, electricity, debt
• anything in action
• any other right or interest
54
Q

Define credit as per Fisher v Raven [3 points]

A
  • The obligation on the debtor to pay or repay and the time given for him to do so by the creditor.
  • the obligation to pay must be legally enforceable
  • credit does not extend to the obligation to supply the goods or services
55
Q

Define the term ‘false representation’ as per s240(2) main point

A

False Representation
• 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
• absolute certainty is not required - willful blindness is sufficient.

56
Q

[Criminal Liability]
• Cameron lives alone
• He got an email from Kiwibank for a previous tenant
• it contains a credit card
• he gets another letter which has the PIN for the card
• he uses the card at the supermarket for his groceries

A 
Uses a Document - s228(1)(b) CA61
• Everyone
• With intent to obtain any property
• Dishonesty 
• Without claim of right
• Uses any document

Deception CIB 008 (8 decks)

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