Deception

Question 1

Section 228(1)(a)

Answer 1

Dishonestly
Without claim of right
Takes OR
obtains
Any document
With intent to obtain any property, pecuniary advantage, service, or valuable consideration

Question 2

Section 228(1)(b)

Answer 2

Dishonestly
Without claim of right
Uses OR
Attempts to use
Any document
With intent to obtain any property, pecuniary advantage, service, or valuable consideration

Question 3

Define obtain

Answer 3

To obtain or retain for himself, herself or any other person

Question 4

Define property

Answer 4

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

Question 5

Define service

Answer 5

Service is limited to financial or economic value and excludes privileges or benefits (R v Cara)

Question 6

Define pecuniary advantage

Answer 6

Anything that enhances the accused’s financial position. It is enhancement which constitutes the element of advantage (R v Hayes)

Question 7

What is the difference between pecuniary advantage and valuable consideration?

Answer 7

Pecuniary advantage can amount to a favourable consideration when it involves monetary advantage however the scope of valuable consideration is wider than pecuniary advantage

Question 8

Define valuable consideration

Answer 8

Anything capable of being valuable consideration whether of a monetary kind or of any other kind, in short money or moneys worth (R v Hayes)

Question 9

What are three examples of valuable consideration

Answer 9

-monetary payment in return for goods or services
-goods given in return for services provided
-issuing a false invoice to receive payment for goods never supplies

Question 10

Define dishonestly

Answer 10

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

Question 11

R v Hayes - belief

Answer 11

The question 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

Question 12

Define claim of right

Answer 12

Belief at the time of any act in a proprietary or possessory right in relation to the offence is to have allegedly been committed. Although belief may be based on if ignorance or mistake of fact

Question 13

What are the four things for claim of right?

Answer 13

-Belief in a possessory or proprietary right in property - can be belief in someone else’s right
-Belied in relation to the property to which the offence is alleged to have been committed
-Belief held at the time of the conduct alleged to constitute the offence
-Belief must be actually held by the defendant

Question 14

Define taking

Answer 14

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

Question 15

Define a document

Answer 15

Essentially a document is a thing which provides evidence or information or serves as a record (R v Misic)
The definition starts with ‘means’ rather than ‘includes’ because the definition is exhaustive

Question 16

Define uses or attempts to use

Answer 16

An unsuccessful use of a document is as much use as a successful one. An unsuccessful use must not be equated conceptually with an attempted one. Because the use does not have to be successful it may be difficult to distinguish between the two

Question 17

Section 240(1)(a)

Answer 17

Obtaining property by deception
-by any deception
-without claim of right
-obtains ownership/possession/control over
-any property, pecuniary advantage, privilege, service, benefit, valuable consideration
-directly or indirectly

Question 18

Section 240(1)(b)

Answer 18

Obtains credit by deception
-by any deception
-without claim of right
-incurring any debt or liability
-obtains credit

Question 19

Section 240(1)(c)

Answer 19

Altering documents capable of deriving pecuniary advantage
-by any deception
-without claim of right
-induces any other person to deliver, make, execute, accept, endorse, destroy or alter
-any document or thing capable of being used to derive pecuniary advantage

Question 20

Section 240(1)(d)

Answer 20

Causing loss by deception
-by any deception
-without claim of right
-causes loss to any other person

Question 21

Define deception

Answer 21

-false representation, whether oral, documentary, or by conduct with intent to deceive any other person and knows that it is false or is reckless to it being false OR
-An omission to disclose material particular, with intent to deceive when they should disclose it
-A fraudulent device, trick or stratagem use with intent to deceive

Question 22

How do you prove a false representation?

Answer 22

-intent to deceive
-there was a representation by the defendant
- the representation was false and the defendant knew it to be false In a material particular OR
-The defendant was reckless whether it was false in a material particular

Question 23

What are the differences in obtaining by deception and theft in relation to possession?

Answer 23

With theft the property is obtained without the owners permission and title is not passed on

Question 24

R v Morley - intent to deceive

Answer 24

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

Question 25

R v cameron

Answer 25

Recklessness is established if; The defendant recognized that there was a real possibility that his or her actions would bring about the proscribed result and/or That the prescribed circumstances existed and having regard that risk those actions were unreasonable

Question 26

What are the two elements of intent?

Answer 26

Intention to commit the act to get a specified outcome

Question 27

What are three ways representations can be made?

Answer 27

Orally, conduct and documentarily

Question 28

R v Morley - representation

Answer 28

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

Question 29

What is an example of continuing effect (representation)

Answer 29

Ordering food in a restaurant represents that the dinner will follow the normal practice and pay for the meal. If during the course of the dinner the diner decides to avoid that payment , the continuing representation will become false and obtaining the food will come within S240

Question 30

What is the general rule when it comes to silence or non disclosure?

Answer 30

It will not be regarded as a representation, but there are exceptions to where there is an incorrect understanding implied from a course of dealing and the defendant has failed to negate that incorrect understanding

Question 31

How can knowledge be established?

Answer 31

An admission Implication from the circumstances surrounding the event Propensity evidence

Question 32

What must prosecution prove in relation to knowledge

Answer 32

The defendant knew the representation was false in a material particular or was reckless as to it's falsity. Absolute certainty is not required

Question 33

What is a material particular

Answer 33

An important, essential or relevant detail or item. Something that matters

Question 34

What is an omission

Answer 34

A conscious decision not to do something or not giving thought to the matter at all

Question 35

Where does a duty to disclose originate from?

Answer 35

Often from civil law, for example where the parties are in a contractual relationship

Question 36

Define fraudulent device

Answer 36

A plan scheme or trick

Question 37

Define trick

Answer 37

An action or scheme undertaken to fool, outwit or deceive

Question 38

Define fraudulent stratagem

Answer 38

A cunning plan or scheme especially for deceiving an enemy or trickery

Question 39

What are examples of benefit or privilege

Answer 39

Access to medical services Reduction in sentence for an offence Using another person's gym membership to access gym facilities Does not need to involves money or loss or injury to the person who has been defrauded

Question 40

If the item that is being obtained is being sent by post when is the obtaining complete?

Answer 40

At the time of posting

Question 41

R v Collister

Answer 41

Circumstantial evidence where an offenders intent can be inferred includes: Offenders actions before during and after Surrounding circumstances Nature of the act itself

Question 42

R v cox

Answer 42

Possession is two elements, mental and physical; Mental possession is knowledge that you possess the item and an intention to possess the item Physical possession requires physical custody or control over the item and is actual or potential possession

Question 43

Special interest

Answer 43

It is sufficient if the person from whom the goods were obtained had some special property or interest in the goods without having actual ownership of them E.g. a mechanic withholding a vehicle for payment and someone comes and takes the vehicle by false pretences

Question 44

Examples of pecuniary advantage

Answer 44

Cash from stolen goods Clothing or cash obtained by credit or EFTPOS card A discount by using a student ID Avoiding or deferring payments of a debt

Question 45

Define debt

Answer 45

Money owing from one person to another. Must be legally enforceable

Question 46

Define liability

Answer 46

Legally enforceable financial obligation to pay such as the cost of a meal

Question 47

Define credit

Answer 47

Obligation on the debtor to pay or repay, and the time given for them to do so by the creditor

Question 48

Fisher V Raven

Answer 48

Credit refers to the 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

Question 49

Credit - 3rd person

Answer 49

Credit can be obtained for themselves or another person

Question 50

What makes gaining credit unlawful?

Answer 50

The presence of an intention to deceive at the time the deception is done

Question 51

R v Mckay

Answer 51

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

Question 52

When does someone have to form their intent to deceive in relation to meals at restaurants?

Answer 52

When they either entered the restaurant or started their meal

Question 53

What are two cases where intent to deceive is not disclosed

Answer 53

Delay or nonpayment OR An inability to perform a bona fide intention For example getting a loan and not being able to pay it back through unforseen circumstances, loss of money or oversight

Question 54

What are the rules when goods are purchased by hire purchase with a false representation

Answer 54

The offence is deception. However if they later sell the goods to another the offender commits theft by conversion

Question 55

Define induces

Answer 55

To persuade, bring about or give rise to. Another person (who doesn't have to be the immediate victim) must be induced or cause to deliver over, execute, make, accept, endorse, destroy or alter the document or thing

Question 56

How do you prove inducement?

Answer 56

By direct evidence from the person that was defrauded; -that the false representation was believed AND -that is was the consequences of that belief that the victim parted with his or her money

Question 57

R v Laverty

Answer 57

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

Question 58

Define causes

Answer 58

The defendant or an act by the defendant must be the substantial and operative cause of the delivery, execution etc, of any document capable of deriving pecuniary advantage

Question 59

Define 'thing'

Answer 59

A thing has a broad meaning must be tangible and capable of being used to derive pecuniary advantage

Question 60

What is included in loss?

Answer 60

Loss involves financial detriment to the victim and it's a direct loss It doesn't include expectation loss(loss of a bargain) and loss of future anticipated profits

Question 61

In R v Morley what did the court conclude in relation to loss?

Answer 61

The loss alleged by the victim must have been induced by, or cause in reliance, upon deception. But the deception need not be the only operative factor, so long as it played a material part in occasioning the loss. Loss should be assessed by the extent the complainants position before the deception has been deminished or impaired

Question 62

Under 240(1)(d) does the person who suffers the loss need to be the person deceived?

Answer 62

No

Question 63

What is required to be proven for causing loss by deception?

Answer 63

The loss was caused by deception It was reasonably foreseeable some more than trivial loss would occur Need not prove the loss was intentionally caused There must be loss to any other person but there need not be benefit to anyone

Question 64

What are the punishments for obtaining by deception or causing loss by deception

Answer 64

Over $1000 = 7 years Between $500 and $1000= 1 year Under $500 = 3 months

Question 65

When assessing the probative value of propensity evidence, what may the judge consider?

Answer 65

The frequency The connection in time between the acts The extent of the similarity between the acts The number of person's making allegations against the defendant are the same or similar Whether the allegations in paragraph above are a result of collusion The extent in which the acts are unusual

Question 66

When is propensity evidence admissable in cases of deception

Answer 66

Where there is a sufficiently strong connection between the offences

Question 67

When is evidence relevant?

Answer 67

If it has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding

Question 68

R v Sharma (propensity)

Answer 68

The ultimate issue is the degree to which the probative value of the evidence outweighs it's prejudicial effect'

Question 69

What is the difference in transfer of title when something is stolen or something is obtained by deceit?

Answer 69

A thief never gets title

Question 70

What is a voidable title?

Answer 70

A title obtained by deception, fraud, duress or misrepresentation. This means the title can be voided by the seller

Question 71

If person B obtains a vehicle by deception and therefore gains voidable title, then they sell it to person C in good faith what happens to title?

Answer 71

Person C obtains a good title if they purchase the vehicle with no knowledge of the defect of title

Question 72

What is the exception to the rule "you can it get a better title than the seller"

Answer 72

Section 246(4) - if you purchase the goods from someone who has obtained it deceitfully, and you don't know about it then you get good title, not voidable title

Question 73

When does title change hands with a hire purchase?

Answer 73

When the full amount it paid

Question 74

What are the two core elements for an offence under section 220?

Answer 74

That they have received property on terms or circumstances which, to the defendants knowledge, affect what the defendant may do with the property or it's proceeds or require the defendant to act in accordance with the requirements of another person and That the defendant intentionally departed from the relevant obligation

Question 75

What are four circumstances of an offence under section 220?

Answer 75

If the defendant intentionally; -failed to account to any other person for property received by the the defendant -failed to account to any other person for the proceeds of property received by the defendant -dealt with property received by the defendant otherwise than in accordance with the requirements of some other person -dealt with the proceeds of the property received by the defendant otherwise than in accordance with the requirements of the other person

Question 76

What are the two mental elements of an offence under section 220?

Answer 76

The defendant must know that they are required to deal with the property or it's proceeds OR account for the property or proceeds in accordance with the direction of the other person AND intentionally departed from their obligations

Question 77

Forgery 256(1)

Answer 77

Makes a false document With intent of using it to obtain any Property, privilege, pecuniary, service, valuable consideration

Question 78

256(2)

Answer 78

Makes a false document Knowing it to be false With intent that it in any way be used or acted upon Whether in NZ or elsewhere as genuine

Question 79

When is forgery complete?

Answer 79

Forgery is complete when the document is made with knowledge and intent Forgery is complete even though the document isn't complete

Question 80

Define false document

Answer 80

The whole or any material part purports to be made, or altered or reproduced, by any person or on behalf of any person who did not authorise it's making or in behalf of a fictitious person

Question 81

What are examples of making alterations to genuine documents?

Answer 81

Additions Insertions Deletions Obliterations Erasures Removal of material or otherwise

Question 82

If you photocopy a false document is this a forgery?

Answer 82

No because the document doesn't 'tell a lie about it self'

Question 83

When is forgery complete?

Answer 83

As soon as the document is made with knowledge and intent. To go on to use the document will be a separate offence

Question 84

What is the specified intent needed for forgery?

Answer 84

At the time of the alleged act the defendant knew the document was false had intended either; -to use the false document to obtain -that the false document be use or acted on as genuine

Question 85

What are examples of forgery?

Answer 85

-writing an exam in the name of another person -Predating a deed to give it priority over another -forging letters of recommendation to obtain a position -falsely completing a statement of service in a witness summons

Question 86

Section 257

Answer 86

Using forged documents Uses the document to obtain PPPSV OR uses it as a genuine document OR Causes any other person to use it or act upon it as if it was genuine

Question 87

What must you prove in relation to the use of a forged document?

Answer 87

The defendant knew the document was forged at the time of using, dealing with or acting upon it -the document was false -the user knew that the document had been made with the knowledge and intent required under section 256

Question 88

What are the three requirements for concealing something?

Answer 88

-the actual hiding of it -the denial it exists -the withholding of it in the face of a positive duty to produce it

Question 89

Section 258

Answer 89

Altering, concealing, destroying, or reproducing documents with intent to deceive -with intent to obtain by deception any PPPBSV OR Cause loss to any other person Alters, conceals, or destroys any document or causes any document to be altered, concealed or destroyed OR Makes a document or causes a document to be made, that is in whole or part, a reproduction of any document

Question 90

What is the difference between forgery and altering/reproducing a document

Answer 90

The definitions of document and intent Forgery and intention to deceive is required, you don't have to obtain anything In altering a doc you must prove that the offender intended to obtain by deception Any document can be altered or reproduced in the charge of altering. In a forgery charge the document must be a false document

Question 91

Section 259

Answer 91

Using altered or reproduced document with intent to deceive Knowing any document to have been made or altered in the manner, and with intent to obtain by deception any PPPBSV OR Cause loss to any other person Uses or dealt with or acts upon the document OR causes any person to use or deal with, or act upon, the document

Question 92

Under section 259, using an altered or reproduced document, where can it be produced

Answer 92

It can be altered or reproduced outside NZ, if it is being used, dealt with or acted upon within NZ

Question 93

What are the three mental elements of an offence under section 259

Answer 93

-the defendant must know the relevant matters relation to the document, that the document had been altered with intent to deceive -the defendant intended by the use of the document, or by causing another to use or rely on it to obtain by deception PPPSVB -intention to acquire or retain the property or to cause loss by deception

Question 94

What do you need to prove a charge of forgery 256(1)?

Answer 94

Made a false document With intent to use it to obtain property etc

Question 95

What do you need to prove a charge under section 256(2)

Answer 95

Made a false document Knowing it to be false With intent that it in any way be used or acted upon, as genuine Essentially, a false document must lie about itself or intended to convey a lie

Question 96

When is a material alternation

Answer 96

If it increases the value or negotiability of a document or instrument or

Question 97

How do you avoid a title?

Answer 97

Take all possible steps to contact A Advise the police the property is obtained by fraud

Question 98

Define access in relation to a computer system?

Answer 98

Covers almost all interactions with a computer system. 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

Question 99

Define computer system

Answer 99

All related input, output, processing, storage, software, or communication facilities and stored data. It can encompass one computer or a network of computers or a computer connected to the internet with the potential of connecting to millions of networked computers

Question 100

What is the difference between the offence 249(1) and 249(2)

Answer 100

249(1) the person accesses the computer system and obtains the offending material or causes loss 249(2) the person accesses the computer system with intent regardless of the result

Question 101

What is the difference between section 250(1) and 250(2)

Answer 101

(1) is forms of arson or wilful damage that endangers life (2) is an offence to damage any computer system and the defendant must act without authority with the knowledge they are not authorised or reckless whether they are authorised -250(2)(b) defendant arranges matters that the victims own operation of their computer system or the acts of third parties, will cause damage to the victims computer system

Question 102

In company deception what are the types of investigation:

Answer 102

A: large scale thefts and other dishonesty offences against employers by employees B: Dishonesty offences committed against financial institutions by people outside the institution obtaining money from it through deception C: commercial deception committed against the public who entice people to invest money D: dishonesty offences committed by professional people in a position of trust against their clients

Question 103

Who do you seek advice from when investigating company deception?

Answer 103

Police accountants and legal officers Ministry of business and employment Commerce commission Liquidators and investors NZ customs Financial markets authority

Question 104

What are the three steps in investigating deception

Answer 104

Interview the informant Contact the account manager at the bank Find out information when the account has been opened with fictitious detail

Question 105

What do you find out from the accounts manager at the bank?

Answer 105

Account holders full name and details Date account was opened Account history How and who reported the loss Serial numbers of missing cheques Date the credit card or cheque bok was reported missing

Question 106

When an account has been opened with fictitious details what details do you find out?

Answer 106

Account number and date opened. Nature and amount of first deposit Any other deposits Details used when it was opened Details of suspect Employees who can ID the suspect