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Deception Flashcards

1
Q

Obtain

A

In relation to any person, means to obtain or retain for himself or herself or for any other person

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2
Q

Property

A

Includes any real or personal property or any estate or interest is any real or personal property, money, electricity and and deb and anything in action and any other rights or interest

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3
Q

R v HAYES (Pecuniary advantage)

A

A PA is anything that enhances the accused financial position. It is that enhancement which constitutes the element of advantage.

EG. Cash from stolen goods, clothing or cash from credit card, a discount using student ID

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4
Q

Valuable consideration

A

Anything capable of being VC, whether of a monetary kind or of any other kind. In short money or money’s worth

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5
Q

Dishonesty

A

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

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6
Q

R v HAYES (belief)

A

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.

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7
Q

Claim of right

A

In relation to any act means a belief at the time of the act of possessory right in the property in relation to the offence which is alleged

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8
Q

Nature of belief in claim of right

A

1) the belief must be belief in a possessory right in the property
2) belief must be about rights to the property in relation o which the offence is alleged to have been committed
3) the belief must be held at the time of the conduct alleged to constitute the offence

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9
Q

Taking

A

For tangible property, theft is committed by taking when the offender moves the property or causes it to be moved

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10
Q

Document

A

A document or part of a document”
a) paper or other material used for writing or printing
b) photograph or any photographic negative, film, negative etc
c) disc, tape, card in which sounds can be recorded on
d) any material derived, directly or not from any equipment

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11
Q

R v MISIC
“misc docs”

A

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

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12
Q

228(1)(a) - Dishonestly taking or using a document

A

Dishonestly
Without claim of right
Takes OR obtains
Any document
With intent to obtain any:
- property
- service
- pecuniary advantag
- valuable consideration

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13
Q

228(1)(b) - Dishonestly taking or using a document

A

Dishonestly
Without claim or right
Uses or attempts to use
Any document
With intent to obtain any:
- property
- service
- pecuniary advantage
- valuable consideration

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14
Q

Proving uses or attempts to use

A

Must prove the offender used or attempted to use the document with the intent to obtain property, service, valuable consideration or pecuniary advantage

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15
Q

R v HAYES (uses or attempts to use)

A

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

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16
Q

240(1)(a) - Obtaining by deception or causing loss by deception

A

By any deception
Without claim of right
Obtains ownership or possession of or control over
Any property, or any privilege, service, pecuniary advantage, benefit or valuable consideration
Directly or indirectly

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17
Q

240(1)(b) - Obtaining by deception or causing loss by deception

A

By any deception
Without claim of right
In incurring any debt or liability
Obtains credit

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18
Q

240(1)(c) - Obtaining by deception or causing loss by deception

A

By any deception
Without claim of right
Induces or causes any other person to
Deliver over, execute, make, accept, endorse, destroy or alter
Any document or thing capable of being used to derive a pecuniary advantage

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19
Q

240(1)(d) - Obtaining by deception or causing loss by deception

A

By any deception
Without claim of right
Causes loss to any other person

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20
Q

Deception

A

Section 240(2)
a) A false representation, oral, documentary or by conduct where the person making the representation intents to deceive any other person and knows that it is false material or is reckless as to whether it is false in material
b) Omissions 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 with intent to deceive any person

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21
Q

R v MORLEY
(rick n morty time travel)

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

R v CAMERON

A

Reckless is established if:
a) the defendant recognised that there was a real possibility that:
i) His/her actions would result in the proscribed circumstances
ii) The proscribed circumstances exists
b) Having regard to that risk, the actions are unreasonable

Part A is subjective, the defendant recognises the risk being possible

Part B is subjective and objective. Were the Defendant’s actions reasonable given the circumstances and social utility.

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23
Q

Intent

A

Two types of intent. An intention to commit the act and an intention to get a specific result

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24
Q

Representation

A

Not defined. Can include past/present facts, future event, exiting intention, opinion, belief, knowledge or other state of mind

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25
Q

The Defendant must ______ or _______ that the representation is ______ or is ______ about it. Includes wilful ________

A

Know
Believe
False
Reckless
Blindness

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26
Q

What must be proved for deception?

A

1) There was an intent to deceive
2) There was a representation from the defendant
3) The representation was false and the defendant knew about the false material particular OR reckless in material particular

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27
Q

Examples of oral/conduct/documentry

A

1) Claiming goods are yours but it’s hire purchase
2) Claiming you’re from uni to get discounts
3) False certificate of qualification

Allows to look beyond the literal meaning

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28
Q

R v MORLEY
Representations

A

Representations must relate to a statement of existing fact, rather than a statement of future intention

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29
Q

Continuing effect

A

Representation by words or conduct may have a continuous effect. Eg. Eating at a restaurant you have a expectation of paying, however if you decide to not pay then the continuing representation will become false

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30
Q

Silence/Non disclosure

A

Will not be regarded as a representation but there are exceptions.

EG. Label swapping, maintaining silence and deliberately not informing of incorrect price

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31
Q

Proving knowledge of false representation

A

Must prove the Defendant knew the representation was false in material particular or was reckless to it. Absolute certainty not required

  • admission
  • propensity evidence
  • implication from the circumstances surrounding the event

Wilful blindness counts as well (putting head in the sand)

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32
Q

Material Particular

A

Something that is important, essential or of relevant detail or item

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33
Q

Omission

A

Means inaction, not acting. Can be a conscious decision of not acting or giving no thought

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34
Q

Device/Trick/Stratagem

A
  • plan, scheme or trick
  • an action or scheme undertaken to fool, outwit or deceive
  • cunning plan or scheme to deceive
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35
Q

Privilege/Benefit in 240(1)(a)

A

A special right or advantage. There does not need to be a financial loss

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36
Q

Goods are obtained when….

A

The goods come under their control

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37
Q

Theft vs obtain

A

Theft is when property is obtained without owners permission and title is not passed on

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38
Q

R v COX

A

Possession has two elements. First the physical element of actual or potential physical custody or control. The second is the mental element which is the knowledge and intention of possessing an item

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39
Q

Lein

A

Lein is a right over another persons property to protect debt charged on that property.

EG. a garage owning a car until repair payments are paid off

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40
Q

Control

A

To exercise authoritative or dominating influence.

Just because it’s found at a premise, it is insufficient that the defendant had control

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41
Q

Debt & Liability

A

Debt - money owning from one person to another
Liability - legally enforceable financial obligation to pay eg. a meal

Both must be legally enforceable.

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42
Q

FISHER v RAVEN
(Credit)

A

Refers to the legally enforceable obligation on 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

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43
Q

Proving 240(1)(b)

A
  • ID of suspect
  • By deception and without claim or right
  • Incurring any debt or liability
  • Obtained credit
44
Q

Credit may be obtained

A
  • Loan
  • Renting/leasing a dwelling
  • Extending existing overdraft
45
Q

R v McKAY
YipeKayay

A

Credit had been obtained on booking in but at that time the accused did not possess an intent to deceive

46
Q

No intent to deceive when

A
  • delay or non payment of debt
    EG. incurring a debt and unable to pay off due to unforeseen circumstances
  • payment without because of dissatisfaction of services
    EG. food not up to standard
  • Hire purchase
    EG. goods sold from hire purchase = theft by conversion.
47
Q

Induces
240(1)(c)

A

To persuade, bring about or give rise to

48
Q

Inducement

A

Should be proved from the person that was defrauded
- false representation was believed
- that consequence of the belief is that they parted ways with their money

Also no deception if the false representation is not believed by the person to whom it is made even tho he still parts ways with his money

49
Q

R v LAVERTY
(Lavatory, parting away)

A

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

50
Q

Deliver/execute/endorse/alter/accept

A

Deliver - Surrender up someone or something
Execute - Put a course of action into effect
Endorse - Write or sign a document
Alter - Change in character or composition, typically in a small but significant way
Accept - Receive something

51
Q

Causes
240(1)(c)

A

The cause must be substantial and caused the delivery, execution etc.

52
Q

Loss
240(1)(d)

A
  • Usually involve a financial loss
  • Must be direct loss, does not include expected loss/anticipated future profits
  • Loss must be induced by deception but it does not have to be the only factor
  • Loss measures the extent of the victims position prior to the deception
53
Q

Person
240(1)(d)

A

Could be a person or company or other organisations

54
Q

Proving 240(1)(d)

A
  • Loss caused by deception
  • Reasonable foreseeable some more than trivial loss would occur
  • Need to prove the loss was intentionally caused
55
Q

Punishment
Section 241 CA1961

A

$1000 plus - 7 years
$500 - $1000 - 1 year
Under $500 - 3 months

56
Q

Propensity defined
Section 40 Evidence Act 2006

A

Evidence that shows a persons acts a certain way or particular state of mind. Evidence of act, omissions or circumstances in which the person has been involved in

57
Q

Assessing the value of propensity
Section 43 Evidence Act 2006

A

When assessing the value of propensity evidence:
- frequency of acts, omissions, events or circumstances [AOEC]
- connection in time in between AOEC
- similarities between AOEC
- number of similar allegations against defendant

58
Q

Propensity admissibilty

A

Courts to decide if it is propensity. Better chance of propensity with specific offences with a unique methodology or pattern

59
Q

Title

A

Legal right to the property

60
Q

Voidable title

A

Is when title is obtained by deception, fraud, duress or misrepresentation. The title can be voided by the seller.

However if someone buys the goods innocently before the title is voided then the buyer obtains good title

61
Q

Section 149 Contract and Commercial Law Act 2017

A

Sale by person not the owner

62
Q

Sale by person not the owner
Section 149 Contract and Commercial Law Act 2017

A

Goods sold by person not the owner and has no authority or consent from the owner to sell. The buyer acquires no better title unless the owner’s conduct prevents them from denying the sellers authority to sell

63
Q

Sale under voidable title
Section 151 Contract and Commercial Law Act 2017

A

The seller of the goods has voidable title, but the title has not been voided at the time of sale. Then the buyer will receive good title providing the buyer purchased the goods in good faith and unaware of the defect of title

64
Q

Theft vs obtaining by deception

A

A thief never gets title. However if a person obtains something by deception the title will pass (voidable title)

65
Q

Voidable title

A

Any title that has been obtained by deception, fraud, duress or misrepresentation. Title can be voided by the seller

66
Q

Section 151 Contract & Commercial Law act 2017

A

Sale under voidable title

67
Q

Receiving and title

A

If title has been voided then the buyer could be liable to receiving

68
Q

Theft by conversion

A

Goods obtained on hire under false representation is deception, then the selling of these goods is theft by conversion

69
Q

Section 220 - Crimes Act 1981

A

Theft by person in a special relationship

70
Q

Proving theft by person in a special relationship

A

1) Defendant has received property on terms or conditions on what he/she can do with the property or proceeds or act in any way
2) Intentionally departed from the relevant obligation

71
Q

Mental elements of theft by person in a special relationship

A

1) Defendant must know acquisition of the property was on terms and requirements. Such as account for the property or proceeds or to deal with the property or its proceeds in accordance with the direction of another person.
i) This will be met if the Defendant is aware there are terms of some kind affecting the freedom of action
2) Intentionally departed from the obligations

72
Q

What section is Forgery

A

Section 256(1), CA1961 - 10 year offence
Makes a false document
With intent to use it
Obtain any
Property, privilege, service, benefit, PA, VC

73
Q

When is forgery complete

A

As soon as the document is made with knowledge and intent, even if the document is uncompleted (256(4))

74
Q

Forgery 256(2) CA1961

A

256(2), CA1961 - 3 year offence
Makes a document
Knowing it to be false
With the intent that it in any way be used or acted upon in NZ or elsewhere, as genuine

Essentially means no real financial or other advantage but only to mislead with the false document

75
Q

Does defendant need to use a document in forgery?

A

No need to use a document in forgery, as long as there is intention to use it. Defendant must know the document is false

76
Q

False document

A

A document that lies about itself or intended to convey a lie where it has been written by someone intending to pass it off

77
Q

Alterations for a false document may involve

A

ROADIE
Removal of material or otherwise
Obliterations
Additions
Deletions
Insertions
Erasures

78
Q

Examples of forgery

A
  • Doing an exam for another person and writing their name
  • Forging letters of recommendation in CV
  • Falsely completing a witness statement
79
Q

Is an intent to deceive an essential element of forgery?

A

No, the defendant must only know the document was false and:
- intended to use it to obtain….or
- used or acted it to be genuine

80
Q

Section 257 - Using forged document

A

10 years
- Uses obtain any P/S/P/B/VC/PA
- Uses if it was was genuine
- causes any other person to use it as if it was genuine

81
Q

Knowledge in using a forged document

A
  • Must know the document was forgery (a false document)
  • It is actually a false document
  • Defendant knew the document was made with knowledge and intent
82
Q

Can using a forged document made/altered overseas be an offence under 257?

A

Yes

83
Q

Section 258 - CA 1961

A

10 year offence
With intent to obtain by deception
Any P/S/P/B/PA/VC
or cause loss to any other person

  • CARD or causes any document to CARD
  • Makes a document or causes a document to be made that is a reproduction
84
Q

Meaning of CARD in Section 258 - CA 1961

A

Concealing - actual hiding, denial of it or not producing it
Alteration - changed in some matter
Reproduction - producing a copy or imitation
Destruction - end existence of

85
Q

Meaning of causes to CARD in Section 258 - CA 1961

A

Causes CARD means:
- arranging the necessary actions by another
- by a computer system or device that may CARD the document

86
Q

When is Section 258 - CA 1961 complete?

A

As soon as the alteration or document is made with intent to CARD

87
Q

Mental elements for Section 258 - CA 1961

A

1) An intent to obtain by deception any P/S/P/B/PA/VC
or
2) An intent to cause loss

88
Q

Cause loss in Section 258 - CA 961

A

Loss does not have to be via deception. It can be the destruction of documents cause the loss.

89
Q

Forgery vs CARD documents with intent to decieve

A

In Forgery only intent to deceive is required not an intent to obtain by deception

In CARD a document, must prove that the offender intended to obtain by deception

90
Q

Section 258 - CA 1961

A

Concealing, altering, reproducing or destroying any documents with intent to deceive

91
Q

Section 259 - CA1961

A

Using altered or reproduced document with intent to deceive

92
Q

Section 259 CA 1961 - Using altered or reproduced document with intent to deceive

A

10 year offence
- Knowing any document made or altered in the manner and intention in section 258
- With intent to obtain any
- P/S/P/B/PA/VC
or
- Cause loss to any other person

Uses or deals with or acts upon the document or causes anyone to use to deal with or act upon the document

93
Q

Is it an offence using a document that was altered or reproduced overseas in NZ?

A

Yes

94
Q

Mental elements in Section 259 CA 1961

A

1) Know that the document has been altered with intent to deceive
2) Intended by the defendant or cause any other person to obtain by deception any P/S/P/B/PA/VC
3) Intention to acquire or retain the property or to cause loss

95
Q

CA1961
256
257
258
259

A

256 - Forgery
257 - Using forged document
258 - Concealing, altering, reproducing or destroying a document with intent to deceive
259 - Using altered or reproduced document with intent to deceive

96
Q

Access (computer crime)

A

Means instruct, communicate with, store data in, receive data from, or otherwise make use

Widely defined and covers almost all interactions.

97
Q

Authorisation

A

Granting authorisation on a person or under a rule of law or court

98
Q

Computer system

A

(a) A computer; OR
Two or more interconnected computers; OR
Any communication links between computers or to remote terminals or another device; OR
Two 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 in paragraph (a) and all related input, output, processing, storage, software or communication facilities and stored data

99
Q

Section 249 - CA 1961

A

Accessing computer system for dishonest purpose
(1) 7 year offence
- directly or indirectly
- access any computer system
- THEREBY
- dishonestly or by deception
- without claim or right
- obtains any P/S/B/P/PA/VC
or
- causes loss to any other person

(2) 5 year offence
- directly or indirectly
- access any computer system
- with intent to
- dishonestly or by deception
- without claim of right
- obtains any P/S/B/P/PA/VC
or
- causes loss to any other person

100
Q

Differences between 249 (1) and (2) - Accessing computer systems for dishonest purpose

A

(1) - thereby, which means accessing and obtains the offending material or causes loss
(2) - intent, which means accessing with the intention to obtain material or cause loss, regardless of result

101
Q

The benefit in Section 249 not only includes financial or pecuniary advantage but also….

A

Non pecuniary eg.

Police v Le Roy - a male gained access to ex partners email even when a protection order was in place. This constitutes a form of benefit

102
Q

Section 250 - CA 1961

A

Damaging or interfering with a computer system

(1) 10 years
- intentionally or recklessly destroys, damages or alters any computer system and knows or ought to knows that danger to life would be a result

(2) 7 years
- intentionally or recklessly and without authorisation
(a) deletes, damages or modify any data or software in a computer system
(b) causes any data or software to be deleted, damaged or modify
(c) causes any computer system to fail or deny service to authorised user

103
Q

Difference between 250(1) 250(2) 250(2b)

A

250(1) - knows or oughts to know that the destruction of computer system would be a danger to life

250(2) - damages computer system and that the defendant knew they had no authority

250(2b) - defendant has arranged the computer system to be damaged

104
Q

Section 252 - CA 1961

A

Accessing computer system without authorisation

2 years
- intentionally accesses, directly or indirectly any computer system without authorisation, knowing or being reckless that he/she does not have that authorisation

105
Q

Does a person have to be physically present to access a computer system?

A

No, it can be remote access.

deception (1 decks)

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