Progress Tests Flashcards
State the definition of ‘deception’, as set out in s240(2) of the Crimes Act 1961?
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.
What is required to prove a ‘false representation’?
To prove a false representation:
• 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
When can goods be said to have been ‘obtained’ by a defendant?
Goods are obtained when:
Section 217, Crimes Act 1961
Interpretation
Obtain, in relation to any person, means obtain or retain for himself or herself or for any other person
Representations can be made in three ways, or a combination of three ways. What are these?
Representations can be made orally, documentary, or by conduct
What are the differences between ‘obtaining property by deception’ and ‘theft’ with regard to possession?
The differences between ‘obtaining property by deception’ and ‘theft’ with regard to possession are:
An important distinction between theft and obtaining by deception is that in theft the property is obtained without the owner’s permission and title is not passed on.
Under what circumstances does a person keep title of goods if they have fraudulently induced another to hand over goods with the intention that title will pass?
A person can keep title of goods fraudulently obtained when: Section 246(4) is an exception to the rule that you cannot get a better title than the seller. 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.
How can you avoid title?
Title can be avoided by:
- Communication to B. The taking of all possible steps to bring it to B’s notice, eg by writing a letter, text, phone call etc.
- By advising the police that the vehicle was obtained by fraud.
When is forgery complete?
Forgery is complete as soon as the document is made with the intent described in subsection (1) of section 256 or with the knowledge and intent described in subsection (2).
Define Claim of Right, Section 2 Crimes Act 1961.
Claim of right, 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 which the offence is alleged to have been committed, although that belief may be based on ignorance or mistake of fact or of any matter of law other than the enactment against which the offence is alleged to have been committed.
What was held in R v Harney in relation to recklessness?
Recklessness means the conscious and deliberate taking of an unjustified risk. In New Zealand it involves proof that the consequence complained of could well happen, together with an intention to continue the course of conduct regardless of risk
Define the term ‘access’ under Section 248.
The term ‘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.
Explain 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.
For a charge of Accessing a Computer System for Dishonest Purpose under Section 249(2), to be successful, what intents must be proved.
(a) obtained any property, privilege, service, pecuniary advantage, benefit, or valuable consideration; or
(b) causes loss to any other person.
Explain the distinction between offences under Section 249(1) and 249(2).
The distinction between these offences under Section 249(1) and 249(2) is reflected in the words “thereby” and “obtains”. Section 249(1) is directed at the situation where a person has actually accessed a computer system, obtains the offending material or causes loss, whereas s249(2) is directed at someone who actually accesses the computer system with that intent regardless of the result.
Describe a situation when a person may not be physically present at a computer to access it.
A person may not be physically present at a computer but can gain access to it via software that remotely infects computers.
