Short Answer Flashcards
In relation to 240(2), besides making a false representation by oral what other ways can a false representation be made?
Documentary, by conduct, fraudulent device, trick or stratagem
What is the definition of Obtains as per section 217?
In relation to any person means to obtain or retain for himself, herself or any other person
In R v Hayes, what was held in relation to pecuniary advantage?
A pecuniary advantage is anything that enhances the accused’s financial position. it is that enhancement which constitutes the element of advantage
What are the two core elements when it comes to an offence under 220 theft by a person in a special relationship?
(a) That he or she has received property on terms or in circumstances which, to the Defendant’s knowledge, affect what the accused may do with the property or it proceeds or require the Defendant to act in accordance with the requirements of another person and
(b) that the Defendant intentionally departed from the relevant obligation
What is the difference between forgery and altering and reproducing a document?
Forgery requires an intention to deceive only whereas altering etc. required an intention to obtain by deception
Define access when it comes to computer offences
Access in relation to any computer system means, instruct, communicate with, store data in, receives data from, or otherwise makes use of any of the resources of the computer system
Define property S2
Includes and real or personal property and any estate or interest in any real or person property, money, electricity and any debt and anything in action and any other right or interest
Define Credit as per Raven v Fisher
‘Credit’ refers to the obligation of the debtor to pay or repay and the time given for them to do so by the creditor. Credit does not extend to an obligation to supply services or goods
Define false representation under 240(2)
(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
(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
(c) a fraudulent device, trick or stratagem used to deceive any person
What two points were made in the case R v Harney is relation to recklessness?
Recklessness involves a foresight of dangerous consequences that could well happen, together with an intention to continue the course of conduct regardless of that risk
When interviewing a victim who alleges they have been defrauded, what two important questions should be asked by the investigator?
Find out the identity used by the offender and obtain descriptions of the offender, the property obtained and any vehicles used
What are the essential ingredients of the forgery offences set out in section 256(1) of the crimes act 1961?
Everyone is liable to a term of imprisonment 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
You are investigating a cheque fraud series where the account has been opened and a chequebook obtained using fictituous details. Apart from the normal bank enquiries in relation to cheque offences, list four possible enquiries you should make regarding the offender opening the account with the bank.
- The account number and date that it was opened
- The details used when the account was opened
- The nature and amount of the first deposit
- Details of any other deposits
What are the essential ingredients of section 228 crimes act 1961 - taking or using documents?
Everyone is liable to a term of imprisonment not exceeding 7 years who with intent to obtain any property, service, pecuniary advantage or valuable consideration -
a. dishonestly and without claim or right takes or obtains any documents
b. dishonestly and without claim of right uses or attempts to use any documents
Apart from a false representation what matters would constitute a deception as defined under section 240(2) of the crimes act 1961?
a. an omission to disclose a material particular, with intent to deceive any person, in circumstances where there is a duty to disclose it
b. a fraudulent device, trick or stratagem used to deceive any person
An offender using false name and address hires and electric drill from the local hire shop. The drill is found at his home some months later and he claims that he did intend to return it at some stage but didn’t get around to it.
a. What is the most appropriate offence to charge the offender with?
b. Who has title to the drill?
Obtains by Deception 240(1)(a)
Title was never obtained in hiring property. Title remains with the hire shop
What was held in the case R v Morley as it relates to Section 240(2) in relation to an intention to deceive?
An intention to deceive requires that the deception is practised in order to deceive the affected party. Purposeful intent in necessary and must exist at the time of the deception
Paul is the 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 clients in order to pay his bills. Paul thinks he can trade his way out of financial difficulties. Is Paul criminally liable for deception? Explain
No Offence, obtains by deception requires an intention to deceive at the time of obtaining the pecuniary advantage. When the deposits were made Paul intended on trading his way out of his financial situation.
What is meant by the following terms referred to in S240(1)(b) Crimes Act 1961
a. Debt
b. liability
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
Where a person has been induced to part with goods by deception, what are two steps he can take to void the deceivers title?
a. communicate with the deceiver taking all other possible steps to bring it to the deceivers notice eg writing a letter
b. advise the police
To successfully prosecute a person on a charge of using altered/reproduced documents with intent to deceive under s259 CA61, name three elements you must prove
- Defendant must know the document has been altered etc with intent to deceive
- defendant must have intended by the employment of the document or by causing another person to use or rely on it, to obtain by deception any property, privlige, service, pecuniary advantage, benefit or valuable consideration
- There must be an intention to acquire or retain the property etc or to cause loss by deception
How is the term representation interpreted (not defined) by the courts. State the relevant case law in your answer
It must be capable of being false so it must contain a proposition of fact - Semester and Brookbanks
Carlos v R - the falsity of the representation must be proved. Where more than one false representation is alleged, each alleged misrepresentation should be included in a separate count
An offender knowingly presents to the retailer an item with two price tags for different amount aware that the higher amount is the correct price. He shows the lower price to the checkout operator and obtain the items for the lower price. He is apprehended by police some two days later for this offence.. What offence has the offender committed and who has title to the item obtained?
Obtains by deception 240(1)(a)
The offender has voidable title until it was reported to the Police and the retailer has title again
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)
A minor detail may amount to a material particular if it is of consequence to the facts of the case. The question of materiality will be assessed objectively.
R v Mallett - a matter will be a material particular if it is something important or something that matters
Investigations into company fraud complaints will usually involve enquiries with the Ministry of Commerce. State four possible sources available there
Registrar of companies
company’s officer
official assignee
insolvency servces
What knowledge must an accused person have to be liable for making a false representation and how can knowledge be obtained?
- That there was an intention to deceive
- that there was a representation by the defendant
- The the representation was false
- that the defendant either
a. knew it to be false in a material particular or
b. was reckless as to whether it was false in a material particular
- an admission
- implication from circumstances surrounding the event
- propensity evidence
Propensity evidence may be relevant in some deception cases. When may evidence of propensity be called in cases of deception?
S43 Evidence act 2006
The prosecution may offer propensity evidence about a defendant only if the evidence has a probative value in relation to an issue in dispute in the proceeding which outweighs the risk that the evidence may have an unfairly prejudicial effect on the Defendant
Define 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
Define Dishonestly
s217 CA 61
In relation to any act or omission, means done or omitted without a belief that there was express or implied consent or authority for the act or omission from someone entitled to give such consent or authority
Dishonestly Hayes v R
The question is whether belief was actually held not whether that belief was reasonable. However, reasonableness may be relevant as evidence on the issue of whether the belief was actually held
Define uses or attempts to use
The prosecution must prove that the offender used or attempted to use the document with the intent to obtan the property etc
Hayes v R
An unsuccessful use of a document is as much use as a unsuccessful one … Because the use does not have to be successful it may be difficult to draw a clear line between the use and attempted use
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
R v Misic
Essentially a document is a thing which provides evidence or information or serves as a record
Define Intent
A person does something intentionally if they mean to do it, desire a specific result and act with the aim or purpose of achieving it
R v Mohan
Intent involves a decision to bring about, in so far as it lies within the accused’s power, the comission of an offence
R v Waaka
A fleeting or passing thought is not sufficient. There must be a firm intent or purpose to affect an act.
Possession or control
Possession may be actual or constructive
Actual possession
Actual possession arises when the thing in question is in a persons physical custody, it is on or about their person or immediately at hand
Ideal possession is
- Complete physical control
- Knowledge of its existence, situation and its qualities
Warner v Metropolitan Police commissioner
Constructive possession
Arises when something is not in a persons physical custody but they have ready access tp it or can exercise control over it
