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Deception > deception > Flashcards

deception Flashcards

1
Q

In relation to the term ‘Dishonestly’ what may be a successful argument in relation to the offender having a mistaken belief

A

That the belief my be either

That the act or omission was, expressly or impliedly, CONSENTED to by a person entitled to give CONSENT or

That the act or omission was AUTHORISED by a person entitled to AUTHORISE it.

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2
Q

Claim of right

A

in relation to any act means, a belief at the time of the act in a proprietary or possessory right in the property in relation to which the offence is alleged to have been committed.

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3
Q

When recklessness is an element in a offence what two things must be proved in regards to the subjective and objective tests

A

That the defendant consciously and deliberately ran a risk (subjective) and
That the risk was one that was unreasonable to take in the circumstances as they were known to the defendant. (Objective)

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4
Q

What are the 4 beliefs that must be held in relation to Claim of right?

A
  1. the belief must be in relation to an element of ownership of the property
  2. the belief must be about rights to the property in relation to which the offence is alleged to have been committed.
  3. the belief must be held at the time of the conduct alleged to establish the offence
  4. the belief must be actually held by the defendant.
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5
Q

takes

A

theft is committed by a taking when the offender moves the property or causes it to be moved.

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6
Q

R v HAYES - dishonest

A

The question is whether the belief is actually held, not whether that belief is reasonable

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7
Q

obtain?

A

obtain in relation to any person, means to obtain or retain for himself or anther person.

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8
Q

property is?

A

includes real and personal property, any estate or interest in any real or personal property, money, electricity and any debt

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9
Q

What is section 228(a)

A

Takes or obtains a Document

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10
Q

what is section 228(b)

A

Uses/attempts to use a document

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11
Q

R v MISIC

A

Essentially a document is a thing which provides evidence or information or serves as a record.

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12
Q

What is Section 240(1)(a) and the elements

A

Obtains by deception or causes loss by deception

By any deception
Without claim of right
obtains/possession/control overAny Property/privilege/service/pecuniary advantage etc.

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13
Q

Device, trick, stratagem defined?

A

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.

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14
Q

When has the offending’ obtained’ property committed, when an item has been posted
a) on the making of the agreement to send the cheque
b) on posting the cheque
c) when the offender receives it in the post

A

b) On the posting of a cheque.

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15
Q

How should it be proved that a person was induced in regards to deception?

A

Direct evidence from the person alleged to have been defrauded.

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16
Q

Loss, what is required to be proved?

A

the prosecution must prove that…

  • loss was caused by a deception
  • reasonably foreseeable that some more than trivial loss would occur, but
  • dont need to prove the loss was intentionally caused.
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17
Q

Definition of Property

A

Includes real and personal property, estate, any interest in any real or personal property, electricity, money, any debt, anything in action or any other right or interest.

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18
Q

what need to be proven for forgery?

A

The suspect made a false document with an intent to use it to obtain property.

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19
Q

what is the difference between theft and obtains by deception?

A

lies with the concept of possession and title ownership.

If gained by deception the owner has given them ownership of the thing freely ( although under deception)

If something has been stolen, it has been taken without permissions. The thief has possession but not title or ownership.

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20
Q

R v CAMERON (recklessness)

A

Recklessness is established if:
a) the defendant recognised that there was a real possibility that:
his or her actions would bring about the proscribed result and/or that the proscribed circumstances existed, and
b) having regard to that risk those actions were unreasonable.

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21
Q

R v MORLEY

A

An intention to deceive requires that the deception is practised in order to deceive the affected party. Purposeful intent is necessary and must exist at the time of the deception.

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22
Q

what are the ways false representation can be conducted

A

Oraly - ie. verbally claiming to own goods that are in fact subject to hire purchase

by Conduct - ie representing oneself to be a collector for charity

Documentary - ie presenting a false certificate/qualification of handing over a valueless cheque

or by any of the above combined

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23
Q

Definition of Access?

A

all interactions with a computer, such as using a computer at work or remote forms of access such as viewing a website or using a virus.

Requires that the person instructing or communicating with the computer system has some form of connection with the system through which instructions or comms may pass.

A person is not required to be physically present in order to access a computer system.

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24
Q

Dishonestly definition

A

in relation to an act or omission, means done or omitted without a belief that there was expressed or implied consent or authority for, from a person entitled to give such consent or authority.

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25
Q

Document definition

A

a document , or part of a document, in any form and includes
a) paper or material for writing/printing or capable of being read.
b) a photograph or negative
c) any disc/tape/wire/track/card or any device in which information/data/sound is recorded/stored.
d) an material of which information is supplied, by any means of equipment, or device used for recording or storing.
e) any material derived, directly or by means of equipment form information

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26
Q

R v HAYES Uses/attempts

A

An unsuccessful use of a document is much use a a successful one

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27
Q

what must the prosecution prove in uses or attempts to use?

A

The prosecution must prove that the offender used (or attempted) the document wit intent to obtain the property/service/ valuable consideration/pecuniary advantage or valuable consideration.

28
Q

Investigating a fraud matter (Cheque), what is your initial action?

A
  1. Interview the informant/complainant - obtain the identity used by the offender, description of offender, property obtained & vehicle used.
  2. Contact account manager to find out, acc holder full name, date account opened, acc history, date chequebook/CreditC reported missing, how and by whom a loss was reported, serial number of missing cheques, details on any dishonoured and returned, is acc holder suspected of issuing valueless cheques.
    other banks cheques have been returned and details of people who have been defrauded.
  3. Obtain sample of suspects handwriting from bank docos
  4. info of any other related complaints/information

5 offender photographed or captured on CCTV at bank or retail outlet - obtain images

When acc opened with fictitious details find out: acc # and date opened, nature and amount of the first deposit, details of other deposits, details used when acc opened, description of suspect and associates at the time. serial numbers of the cheques supplied, details of dishonoured cheques/people defrauded.

When cheques are dishonoured through lack of funds, interview the acc holder and obtain a statement.

29
Q

MBIE - Ministry of Business, Innovation and Employment

Possible sources of information are?

A

Registrar of Companies
Companies Office
Official Assignee
Insolvency Services

30
Q

Ingredients for 288(a) Takes

A

With intent to obtain any property/service/pecuniary advantage or Valuable consideration
Dishonestly
without claim of right
Takes any document

31
Q

What is the difference between Forgery and Reproduction of a document?

A

Forgery is making or altering writing, proporting it to be made by another - an intent to deceive is only required

Reproduction is making a copy of something, duplicate - must prove the offender intended to obtain by deception

32
Q

Definition of property

A

includes and 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 right of interest.

33
Q

Deception - False representation

A

A false representation, whether oral, documentary or by conduct where the person making the representation intends to deceive any other person.

34
Q

access computer

A

means instruct, communicate with or store data, receive data or otherwise make use of any of the resources.

covers almost all interactions with a computer.

35
Q

R v MOHAN

A

intent involves - a decision to bring about, in so far as it lies withing the accused power

36
Q

Debt and Liability

A

Debt means money owing from one to another
Liability means a legally enforceable financial obligation to pay,

37
Q

How can title be voided

A

By making a compliant to police

A title obtained by deception, fraud, duress or misrepresentation is called a ‘Voidable title’. This means the title can be voided by the seller

38
Q

A person who has property on hire purchase has?

A

Possession olnly

39
Q

what is valuable consideration and what is the case law

A

HAYES - anything that is capable of being a valuable consideration, whether of a monetary kind or any other kind. Money or moneys worth

40
Q

Both possession and title will pass on to a bonified or innocent purchaser when

A

The property is brought by a 3rd party from a person who obtained it by deception before the original owner voids title

41
Q

What is credit

A

an obligation to pay or repay with time in which to pay

42
Q

R v HAYES defined pecuniary advantage as

A

anything enhancing a persons financial position

43
Q

dishonest access of a computer, what is required to prove this

A

he/she actually obtained any property/privilege/service etc

44
Q

what was held in R v CROOKS in relation to knowledge

A

the accused may be liable if their conduct has amounted to wilful blindness, and this is equated to knowledge.

45
Q

The offence obtaining credit by deception under 240(1)(b), what are the ingredients?

A

By any deception
and without claim of right
In incurring any debt or liability
obtains credit

46
Q

A senior executive of a company acting on behalf of the company caused loss to other company, who is held criminally liable?

A) the senior executive
B) the company
C) both, the actions of the exec are said to be the actions of the company.

A

The senior executive and the company as the actions of the exec are said to be the actions and state of mind of the company.

47
Q

when is title obtained?

A

when a person obtains goods, handed over from the other party freely.

48
Q

Define Dishonestly.

A

Done or omitted with the belief that there was implied or express consent given by a person entitled to give consent or authority

49
Q

Define ‘Claim of Right’

A

a belief at the time of the act in a possessory or propriety right in the property in which the offence was alleged to have been committed. Although that belief my be based on ignorance or mistake.

50
Q

Define ‘Document’

A

a document or part of a document in any for and includes
* paper or material where information is capable of being read.
* photographs/negatives
* disc, tape or other device capable of storing information able to be reproduced.

51
Q

what is required to be proved for a false representation?

A
  1. that there was an intention to deceive
  2. that there was a representation by the defendant
  3. the representation was false and the defendant either
    knew it to be false in material particular
    was reckless whether it was false in material particular.
52
Q

deception defined:

A

A) a false representation whether oral, documentary or by conduct, where the person making the representation intends to deceive any other person and
i - knowing ti to be false in material particular
ii - was reckless as whether it was false in material particular.

B) omitting to disclose a material particular with intent to deceive any person in circumstances where there is a duty to disclose

C) a fraudulent trick, device or stratagem used with intent to deceive any person.

53
Q

How can Knowledge be established

A
  • by an admission
  • an implication from the surrounding circumstances
  • propensity evidence.
54
Q

what was held in R v Crooks in regards to Knowledge?

A

that the accused may be liable if there conduct has amounted to ‘wilful blindness’ therefore equating to knowledge

55
Q

R V COX

A

Involves 2 elements
1st Physical custody or control
2nd Mental element, knowledge and intention

56
Q

can you have possession but not title of something?

A

yes you can possess something and not have title to it, although possession and (ownership) title are usually only held by one person

eg. You are driving someone else car, you have possession whilst driving it but it belongs to someone else.
or borrow and use someone else lawnmower.

57
Q

Define: Debt and Liability and credit

A

Debt: money owning from one person to another

Liability: a legally enforceable financial obligation to pay ( paying for a meal at a restaurant)

Credit: An obligation on the debtor to pay or repay by a time given by the creditor.

58
Q

Debt or liability - what must there be?

A

the debt or liability must be legally enforceable. If the contract is void or illegal there will be no offence.

59
Q

Obligation to pay - what was held by Fisher v Raven

A

credit refers to the obligation on the debtor to pay or repay by a time given by the creditor to pay

(does not extend to supplying goods or services)

60
Q

Proof of Inducement - what need to be proven

A

that the false representation was believed, and

the the consequence of that belief was that the victim parted with their money

61
Q

R V LAVERTY?

A

it is necessary for the prosecution to prove that the person parting with the property was induced to do so my the false representation

62
Q

what needs to be proven for Forgery and Altering/reproducing

A

Forgery - that they made a false doco
- with an intent to use it to obtain property

Reproduce/alter - must prove that the offender intended to obtain by deception

63
Q

249 accessing a computer for a dishonest purpose -
ingredients to be proved

A

directly or indirectly access a computer system, dishonestly and WCOR
a) obtains property ect or
b) causes loss to any perosn

64
Q

what is the difference between 249(1) and (2) - access computer

A

249(1) the person has actually accessed the computer and either obtains or causes loss

249(2) access a computer with an intent to obtain or cause loss regardless of the outcome.

65
Q

R v COX

A

possession involves 2 elements.
1st physicla custoy or cntrol
2nd is an element of knowledge and intention

66
Q

propensity evidence- what a judge considers

A

the judge may consider…
the frequency in which they have occurred -
connection between the evidence
the extent of similarities
number of people making allegations that are same or similar

67
Q

Can a SFO make an arrest

A

no, the do not have the power of arrest

Deception (2 decks)

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