Module 8: Deception Flashcards

1
Q

What is required to prove false representation?

A
  • Intent to deceive
  • Representation by defendant
  • The representation was false and the defendant either:
    • knew it was false
    • was reckless as to whether it was fasle
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2
Q

When can goods be said to have been obtained by a defendant?

A

Obtain or retain for himself or another

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3
Q

Representation can be made in three ways, or a combination of three ways. What are these?

A

Orally, documentary, or by conduct.

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4
Q

What are the differences between obtain property by deception and theft with regard to possession?

A

An important distinction between the two is that in theft the property is obtained without the owners permission and title is not passed on.

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5
Q

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
A person can keep 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 then the title has been made legal.
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6
Q

How can you avoid title?

A

1: Communication to B. The taking of all possible steps to bring it to B’s notice, eg by writing a letter, phone call etc.
2: By advising the police that the item was obtained by fraud.

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7
Q

When is forgery complete?

A

Forgery is complete as soon as the document is made with the intent described in subsection (1) of section 256 or with knowledge and intent described in subsection (2).

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8
Q

What was held in R v Harney in relation to recklessness?

A

Recklessness involves foresight of dangerous consequences that could well happen, together with an intention to continue the course of conduct regardless of the risk.

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9
Q

Define the term access under Section 248?

A

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

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10
Q

Explain what actions would involve accessing a computer system?

A

Access requires 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.

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11
Q

What intent must be prove for Accessing a computer system for dishonest purposes under section 249(2)?

A

(a) obtained any property, privilege, service, pecuniary advantage, benefit, valuable consideration or;
(b) cause loss to any person

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12
Q

Explain the differences between Section 249(1) and 249(2)?

A

1 - is directed at the situation where a person has actually accessed a computer system, obtains the offending material or causes loss to any person.
2 - is directed at someone who actually accesses the computer system with that intent regardless of the result

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13
Q

Describe a situation where a person may not be physically present at a computer to access it?

A

A person may gain access to it via software that remotely infects computers.

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14
Q

What is Police v Dronjak?

A

Told the label price, went through checkout and cheaper price was scanned, stayed silent.

By maintaining silence in the face of a mistake known to him and by deliberately refraining from drawing the checkout assistants attention to the mistake, he had obtained it by false pretense.

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15
Q

How can knowledge be established? (deception)

A
  • admission
  • implication from the circumstances surrounding the event
  • propensity evidence
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16
Q

What must the prosecution prove about the representation? (deception)

A

it was false in a material particular or was reckless as to its falsity. Absolute certainty is not required.

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17
Q

What is material particular?

A

An important, essential or relevant detail or item.

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18
Q

What is the subjective / objective test? (deception)

A
  • Subjective is the internal reasons why someone did something
  • Objective is the test of a reasonable person.
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19
Q

Examples of a service or benefit?

A

Using another person gym membership card.

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20
Q

What is special interest lien?

A

The defendant was the owner of a motor vehicle being repaired by a garage. The garage owner proprietor placed a lien over the vehicle until payment pf the debt was made.

The effect of this was to permit him to retain the possession of the car and gave him a special property or interest in the vehicle.

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21
Q

If a dishonest item is in someones home do they have control over it?

A

It is insufficient that the defendant dishonestly obtained property was found at the premises of which the defendant had control. It must be proved that the defendant did in fact exercise some control over the particular property.

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22
Q

What are 4 examples of a pecuniary advantage?

A

Cash from stolen goods.
Clothing obtained by a credit or eftpos card.
A discount
Avoiding or deferring payment of a debt

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23
Q

If a contract for debt or liability is void or illegal is there an offence of obtaining credit by deception?

A

No, contract must be legally enforceable.

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24
Q

What is the extended definition of obtains? And 3 examples.

A

That the defendant obtained the extension of credit to another person.

  • obtaining money on a loan
  • extending existing overdraft facilities.
  • renting or leasing a dwelling
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25
Q

What is continuing representation?

A

Where the representation has a continuing effect, like ordering a meal in a restaurant would usually be a representation that one will follow the normal practice and pay for the meal at the end, if during the course of the meal the diner decides to avoid payment, the continuing representation of an intention to pay will become false and any subsequent obtaining of food will come within 240.

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26
Q

Intent to deceive is not disclosed merely because there is?

A
  • delay or non-payment of the debt

- an inability` to perform a bona fide intent.

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27
Q

What is credit?

A

money owing with a period of time to pay

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28
Q

When is title obtained?

A

when the innocent reciever is given title where the property was obtained by deception but has not been voided by the decieved owner

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29
Q

What must exist in relation to Debt and Liability in Deception

A

must be legally enforceable

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30
Q

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

A

A) That he had exercised control over it in the past

31
Q

Roberts car is in the local garage having been repaired. Robert could not afford to pay for the repair before getting the car back. Knowing that he does have funds in his account to cover the cost of the repairs, he hands over a cheque to the repairer and received the car in return. He drives home:

A

b) Robert has obtained the vehicle by deception, as someone else has a special property or interest n it

32
Q

Claim of right in relation to any act means:

A

b) a belief at the time of the act in a proprietary or possessory right in property

33
Q

To prove a charge of theft by a person in a special relationship under section 220(1), it is necessary to prove that the person knew they had to:

A

a) account to any other person for the property, or for any proceeds arising from the property

34
Q

The case R v Morley (2009) NZCA 618 discussed the matter of loss in relation to s240(1)(d) Crimes Act 1961 (causing loss by deception). Which statement best describes what was held in this matter:?

A

c) the prosecution must prove that the loss alleged by the victim must have been induced by, or caused in reliance, upon the deception

35
Q

Brown booked into a motel and on checking in he offered to pay in advance. He was told that he could pay the account in the morning. He left early without checking out or paying. What is Brown’s liability:

A

c) no offence is committed

36
Q

For a charge under section 240(1)(b) of the Crimes Act 1961 (obtaining credit by deception),the obligation to repay means?

A

a) the obligation to repay must be a legally enforceable one

37
Q

A fraudulent device, trick or stratagem used with intent to deceive any person must be?

A

b) fraudulent, meaning dishonest in the traditional sense

38
Q

False document includes a document of which the whole or any material part purports to be made:

A

a) by a person who did not authorise its making (possibly)
b) by a fictitious person (likely)
c) both of the above are correct

39
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

c) under no circumstances as the investigator does not have powers of arrest

40
Q

Both possession and title will pass on to a bona fide or innocent purchaser:

A

(b) when the property is brought by a third party from a person who obtained it by deception before the original owner voids any title

41
Q

In relation to the offence of obtaining credit by deception under section 240(1)(b) of the crimes act 1961, which of the following statements is not correct?

A

(c) under the definition of obtain in s217 of the crimes act 1961. It is not sufficient that the accused obtained the extension of credit to another person

42
Q

The case Hayes v R defined a pecuniary advantage as:

A

(b) anything enhancing a person’s financial position

43
Q

A person can only be charged under section 249(1) in relation to accessing a computer system for dishonest purpose when

A

(c) he/she actually obtained any property, or privilege, service, pecuniary advantage, benefit or valuable consideration or loss to any other person

44
Q

A senior executive of a company who is acting on behalf of the company commits a series of deceptions causing other companies to sustain financial losses. In these circumstances any criminal liability rests with

A

(a) both the senior executive and the company as the actions of the executive are said to be the actions and state of mind of the company

45
Q

The term credit means?

A

(c) an obligation to pay or repay with time in which to pay

46
Q

What was held in R v Crooks in relation to knowledge?

A

(b) the accused may be liable if their conduct has amounted to wilful blindness and ths is equated to knowledge

47
Q

A person can be said to have control of a thing if?

A

(a) it is prove that the accused did in fact exercise some control over the thing

48
Q

For propensity evidence to be admissible the ultimate issue is?

A

(a) the degree to which the probative value of the evidence outweighs the prejudicial effect

49
Q

The term valuable consideration means that a person can?

A

(b) obtain anything capable of being valuable consideration, whether of a monetary kind or of any other kind

50
Q

When interviewing a victim who alleges they have been defrauded, what two important questions should be asked by the investigator?

A
  • Find out the identity used by the offender

- Obtain descriptions, property obtained and vehicle used

51
Q

John has a small business that takes orders from clients. The company has a huge back log The company’s financial position deteriorates and john continues to accept orders because he thinks he can trade his way out of financial hardship, can John be held criminally liable ?

A

No, John has no intent to deceive anyone as he legitimately thinks he can trade his way out of his financial hardship as a large amount of small businesses do in NZ.

52
Q

When is forgery complete?
OR
What are the ingredients for forgery?

A

256(3) - Forgery is complete as soon as the document is made with the intent described in subsection 1.

256(1) - Everyone is liable to imprisonment for 10 years who, makes a false document with the intention of using it to obtain any property, privilege, service, pecuniary advantage, benefit, valuable consideration.

53
Q

In 240(2) besides the false representation aspect of deception what else is important to prove deception?

A
  • intend to deceive someone else
  • know its false or
  • reckless as to whether its false
54
Q

An offender has given fictitious details and has defrauded a bank what 4 actions other than the bank enquirers must u do in order to assist u to identify the offender? (8)

A
  • account number & date opened
  • nature & amount of first deposit
  • details of other deposits
  • details used when account opened
  • description of suspect & associates
  • name & address of employee who dealt with them for statements
  • serial numbers on cheques supplied
  • details of other dishonored cheques and people & firms defrauded.
55
Q

Where a person has been induced to part with goods by deception, what are two steps hey can take to avoid the deceiver’s title?

A

Taking all possible steps to bring it to the person attention, writing a letter, phone call etc
Advising the police they were deceived.

56
Q

To successfully prosecute a person on a charge of (using altered or reproduced documents with intent to deceive) under section 259 of the Crimes Act 1961, name three mental elements you must prove?

A

1-defendant must know the document has been altered to deceive.
2-defendant must have intended the document to obtain by deception property, privilege etc..
3-intention to acquire or retain property etc or to cause loss

57
Q

How is the term (representation) interpreted (not defined) by the courts. State the relevant case law in your answer?

A

R v Morley - Representation must relate to a statement of existing fact, rather than a statement of future intention.

58
Q

An offender knowingly presents to the retailer an item with two price tags for different 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 by Police some two days later for this offence:

a) what offence has the offender committed
b) who has title to the item obtained by the offender

A

A)Obtains by deception 240(1)(a) by conduct

B)offender does until it was voided by the store

59
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)

A

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

60
Q

Investigations into company fraud complaints will usually involve enquirers with the Ministry of Commerce. State four possible sources available there?

A
  • Registrar companies
  • companies office
  • official assignee
  • insolvency services
61
Q

a) What ‘knowledge’ must an accused person have to be liable for making a false representation
b) How can ‘knowledge’ be established

A

A) Know the representation was false in a material particular or reckless as to…

B) admission, implication from circumstances, propensity evidence

62
Q

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

A

Where there is sufficiently strong connection between the offences.

63
Q

Apart from a false representation what matters would constitute a deception as defined under section 240(2) of the crimes act 1961

A
  • Omission to disclose a material particular

- Fraudulent device, trick or statagem

64
Q

An offender using false name and address hires an 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?

A

Obtains by deception 240(1)(a)

Offender has title until the company voids it or company has title as it was only hired on contract?

65
Q

Loss caused by deception must be?

A

A direct loss, indirect losses such as expectation loss and loss of anticipated future profits are not included.

66
Q

Mental elements of theft by special relationship section 220?

A

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.

67
Q

Definition of representation?

A

It must be capable of being false so it must contain a proposition of fact.
examples: past or present fact, existing intention, opinion, belief, knowledge or other state of mind.

OR?
A thing that represents another. A statement made by way of allegation or to convey opinion.

68
Q

False representation, what is required to be proved?

A
  • intent to deceive
  • representation by defendant
  • it was false, they knew that or were reckless to the fact
69
Q

When is propensity evidence admissible?

A

In cases of deception where there is a sufficiently strong connection between the offences.

70
Q

What is specified intent? (forgery)

A

Knew the document was false and intended either:

  • to use that false document to obtain or
  • that it be acted upon as genuine.
71
Q

What does a computer system mean? (5)

A
  • A computer
  • Two or more interconnected computers
  • any communication links between computers or to remote terminals or another device
  • Two or more interconnected computers combined with any communication links between computers or to remote terminals or another device
  • includes any part of these items, input, output, processing, storage, software, or communication facilities and stored data.
72
Q

Contact account manager at bank where the account is domiciled and find out: (10)

A
  • holders full name, occupation, address, phone
  • date it was opened
  • account history
  • dates cheuqe book or credit card stolen
  • how and by whom loss reported
  • serial numbers of any missing cheques
  • details of cheques dishonored and returned
  • whether account holder suspected of issuing valueless cheques
  • other banks cheques returned
  • details of people/firm defrauded.
73
Q

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

A
  • Police accountants & legal officers
  • Ministry of Business, innovation and employment
    - registrar of companies
    - companies office
    - official assingee
    - insolvency services
  • commerce commission
    - fair trading act
    - unsolicited goods and services act
    - pyramid selling
  • financial markets authority - securities act
  • NZ customs - caps alert & international travel
  • Liquidators and receivers - usually accountants