johno wylde Flashcards
deception
Ingredients ,section, for takes or obtains a document
s228(1)(a) - 7 years
with intent to obtain any property,
service,
pecuniary advantage,
or valuable consideration
dishonestly
and without claim of right
takes OR obtains
any document
Ingredients ,section, for uses or attempts to use a document
s228(1)(b) - 7 years
with intent to obtain any property,
service,
pecuniary advantage,
or valuable consideration
dishonestly
and without claim of right
uses OR attempts to use
any document
Ingredients and penalty for obtaining by deception 240(1)(a)
by any deception
without COR
obtains ownership
or
posession of or control over
any property or any privilege service, pecuniary advantage benefit or valuable consideration
direction or indirectly
Ingredients and penalty for obtaining by deception 240(1)(b)
by any deception
and without COR
in incurring any debt
OR
liability
obtains credit
Ingredients and penalty for obtaining by deception 240(1)(d)
by any deception
and without COR
causes loss to any person
define obtain
obtain,in relation to any person, means obtain or retain for himself or herself or for AOP
define property
property includes any 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
- define pecuniary advantage
2. Case law for pecuniary advantage
basically means an ‘economic or monetary advantage’
a pecuniary advantage is ‘anything that enhances the accused’s financial position. it is that enhancement which constitutes the element of advantage’
Hayes v R
case law for valuable consideration
is ‘anything capable of being valuable consideration, whether of a monetary kind or of any other kind; in short, money or moneys worth’
define dishonestly
in relation to any act or omission, means done or omitted without a belief that there was an express or implied consent to, or authority for,the act or omission from a person entitled to give such consent or authority
sec. 217 CA
Define claim of right
in relation to any act, mean 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……..
sec.2 CA
define document
includes part of a document in any form and includes:
- paper/material containing anything that can be read
- photos, negatives, and related items
- discs, tapes, cards or other devices/equipment on which information is stored and can be reproduced
sec. 217 CA
R v MISIC
‘essentially a document is a thing which provides evidence or information or serves as a record’
define deception
(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;
(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.
define 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 and wilful blindness as to the falsity of the statement will suffice
define intent to deceive
the offender must know the representation is false and intend the other person to act upon it as genuine
define ownership
Ownership is synonymous with the concept of title
define liability
legally enforceable financial obligation to pay
define credit
refers to the obligation on the debtor to pay or repay in the time given to do so by the creditor. The obligation to pay must be legally enforceable
credit had been obtained….but at that time the accused did not possess an intent to deceive
R v MORLEY
an intention to deceive requires that the deception is practiced in order to deceive the affected party. Purposeful intent is necessary and must exist at the time of the deception
person section 2 definition
person, owner, and other words and expressions of the like kind, include the crown and any public body or local authority, and any board, society, or company, and any other body of persons, whether incorporated or not, and the inhabitants of the district of any local authority,in relation to such acts and things as it or they are capable of doing or owning
what is HAYES v R in relation to dishonesty
the question is whether the belief is actually held, not whether that belief is reasonable. however, reasonableness may be relevant as evidence on the issue of whether the belief was actually held.
what is required to be proved in relation to deception
- 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
how can knowledge be established
- an admission
- implication from the circumstances surrounding the event
- propensity evidence
examples of pecuniary advantage
- monetary payment in return for goods or service
- Goods given in return for service provided
- issuing a false invoice to receive payment for goods never supplied
four parts of COR/nature of belief
first, there must be a belief in a proprietary or possessory right in property.
secondly, the belief must be about rights to the ‘property in relation to which the offence is alleged to have been committed’.
thirdly, the belief must be held at the time of the conduct alleged to constitute the offence.
Fourthly, the belief must actually be held by the defendant.
the belief is not required to be reasonable or reasonably held and may be based on ignorance or mistake.
what is a’material particular?
not defined, however can be given its usual meaning of an improtant, essential or relevant detail or item.
in R v MALLETT it was held that ‘a matter will be a material particular if it is something important or something that matters.
define
- device
- trick
- stratagem
device
a ‘plan, scheme, or trick’
trick
An action or scheme undertaken to fool, outwit, or deceive.
Stratagem
a cunning plan or scheme especially for deceiving an enemy, or trickery.
give examples of privilege or benefit
- using another persons gym membership card so you can use their gym
- access to medical services
- the withdrawal of an assault charge
- a reduction in sentence for an offence
posession re title
one person often holds possession and ownership at the same time. However you can possess something without having ownership of it (eg using someone elses car)
distinction between theft and obtaining by deception
an important distinction between theft and obtaining by deception is that in theft the property is obtained without the owners permission and title is not passed on.
explain special interest
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.
explain special interest lien
a lien is a right over another persons property to protect a debt charged on that property, until the debt is paid or s/he voluntarily parts with the goods
FISHER v RAVEN
credit refers to the obligation on the debtor to pay or repay, in the time given for them to do so by the creditor..
Credit does not extend to an obligation to supply service or goods.
explain timing of intention to decieve
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.
explain delay or non payment of debt
it is not intent to deceive merely because there is:
- delay or non payment of the debt, or
- an inability to perform a bona fide intention
for example, to incur a debt and then be unable to pay through unforeseen circumstances, loss of money, or oversight, is not a deceit.
write the ingredients for obtaining by deception or causing loss by deception 240 (1)(c)
- By any deception
- And without claim of right
- Induces
OR
Causes any other person
4. to deliver over execute make accept endorse destroy or alter any document or thing
capable of being used to derive a pecuniary advantage
oxford definition of induces
‘to persuade, bring about, or give rise to’
how to gain proof of inducement
victim usually questioned to elicit answers proving:
- that the false representation was believed, and
- that it was the consequence of that belief that the victim parted with his or her mun muns
inducement caselaw ….GO
R v LAVERTY
it is necessary for the prosecution to prove that the person parting with the property was induced to do so by the false representation made
what may the judge consider re propensity evidence (6 points a-f)
a. the frequency with which the acts, omissions, events, or circumstances which are the subject of the evidence have occurred
b. the connection in time between the acts, or circumstances which constitutes the offence for which the defendant is being tried
c. The extent of the similarity between the acts
d. the number of persons making the allegations against the defendant, that are the same or similar
e. Whether the allegations described in para d may be the result of collusion or suggestibility
f. Th extent to which the act, omission, etc, are unusual.
define title
simply means a legal right to property
note = if a seller, who has no right of ownership to the goods and acts without the authority of the true owner, attempts to pass title to a buyer, that buyer can receive no greater interest in the goods than the seller had.
explain voidable title
a title obtained by deception, fraud, duress, or misrepresentation is called a voidable title. This means that the title can be ‘avoided’ by the seller.
therefore, if an innocent buyer purchases goods obtained by deception,before the title has been voided, then he or she is entitled to good property.
essentially until the title is avoided, the defrauder has a voidable title, and can confer good title on anyone who acquires the goods from him or her in good faith and for value.
how does one avoid title once discovered to be bad
must do one of the following:
-communicate with the person
- take all other possible steps to bring it to person B’s notice eg. letter, call
- advise Police that it was gained by person B by deception
when does title pass
Section 19 of the sale of goods act 1908 is relevant.it provides that, 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.
do thieves ever hold title?
no - a thief never obtains title to the goods he or she steals.
SO, there is usually little problem in giving stolen property back to the owner, even if a court order is not made
two core elements of theft by person in a special relationship s220
(a) that he or she have received the property on terms or in circumstances which, to the defendants knowledge, affects what the defendant may do with the property
(b) That the defendant intentionally departed from the relevant obligation.
two mental elements for s220 *****S.Answer
first, 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..
this requirement will be met 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. Secondly, the defendant must have intentionally departed from his or her obligations: Adams on criminal law ref.
Forgery section and legislation
section 256, 10 years
(1) everyone who, makes a false document with the intention of using it to obtain any property, privilege, service, pecuniary advantage, benefit, or valuable consideration.
- — 3 years —-
(2) everyone who, makes a false document, knowing it to be false, with the intent that it in any way be used or acted upon, whether in NZ or elsewhere, as genuine.
USING FORGED DOCUMENTS
s257 10 years
everyone who, knowing a document to be forged,
(a) uses the document to obtain any property, privilege, service, pecuniary advantage, benefit, or valuable consideration
or
(b) uses,deals with, or acts upon the document as if it were genuine,
or
(c) causes any other person to use, deal with, or act upon it as if it were genuine.
Use of a document re forgery
There is no requirement that the defendant uses the document, as long as the intention to do so is present. The Defendant must know that the document is false.
False document Defined (5 points)
defined under section 255 C.A
means a document -
(a) 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; or
(b) of which the whole or any material part purports to be made by or on behalf of, any person who did not authorise its making, or on behalf of a fictitious person; or
(c) of which the whole or any material particular has been altered, whether by addition, insertion, deletion, obliteration, erasure, removal, or otherwise, and that purports to have been altered by or on behalf of a person who did not alter it or authorise its alteration, or by or on behalf of a fictitious person; or
(d) that is, in whole or in part, a reproduction of any other document, and that purports to have been made by or on behalf of a person who did not make it or authorise its making, or by or on behalf of a fictitious person; or
(e) That is made in the name of a person, either by that person or by that persons authority, with the intention that it should pass as being made by some other person who did not make it, or by a fictitious person.
material alterations - what does it involve
- Addition
- Insertion
- Deletions
- Obliteration
- Erasures
- Removal of material or otherwise
specified intent for forgery
pros to prove that, at the time of the alleged offence, the defendant knowing that the document was false, intended either :
- to use the false document to obtain, or
- that the false document be used or acted upon as if genuine
forgery vs altering etc reproducing a document
the difference between the offences of forgery and altering or reproducing a document rest in the varying definitions of document and intent.
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 intends to obtain by deception.
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’ as defined in sec 255.
mental element of using or reproducing document w intent to decieve (three parts)
firstly, 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.
secondly, 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 any property, privilege, service, pecuniary adv, benefit, or valuable consideration, or to cause loss to any other person. It must be remembered that obtain here carries the extended meaning provided in s 217 so that an intention to retain such property will suffice.
Thirdly, there must be an intention to acquire or retain the property etc, or to cause loss, by ‘deception’. this key word is not defined for the purpose of this section, but assistance can be derived from the def in s240.
computer crime - define access
Access, in relation to any computer system, means instruct, communicate with, store data in, receive data from, or otherwise make use of any of the resources of the computer system
computer crime - define computer system
(a) 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 para (a) and all related input, output, processing, storage software, or communication facilities and stored data.
legislation for accessing a computer system for dishonest purposes
sec 249 C.A - 7 years
(1) everyone who, directly or indirectly, accesses any computer system and thereby, dishonestly or by deception, and without claim of right -
(a) obtains any prop, privilege, service, pecuniary adv, benefit, or valuable consideration, or
(b) causes loss to any person
5 years imp.
(2) everyone who, directly or indirectly, accesses any computer system with intent, dishonestly or by deception, and without claim of right -
(a) to obtain any property, privilege, service, pecuniary advantage, benefit, or valuable consideration; or
(b) to cause loss to any other person
what is the distinction between s 249(1) and (2)
the distinction is the terms ‘therby’ 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.
legislation for damaging or interfering with a computer system
s250 -
10 years
(1) Everyone who intentionally or recklessly destroys, damages, or alters any computer system if he or she knows or out to know that danger to life is likely to result
7 years (2) everyone who intentionally or recklessly, and without authorisation, knowing that he or she is not authorised or being reckless as to whether or not he or she is authorised
(a) damages, deletes, modifies, or otherwise interferes with or impairs any data or software in any computer system; or
(b) causes any data or software in any computer system to be damaged, deleted, modified, or otherwise interfered with or impaired; or
(c) causes any computer system to -
(i) fail, or
(ii) deny service to any authorised user
