DECEPTION Flashcards
Ingredients s.228
228(1)(a) 7 Years 1) With Intent to Obtain any Property, service, Pecuniary Advantage or valuable consideration 2) Dishonestly 3) And without claim of right 4) Takes or obtains any document 228(1)(b) 7 Years 1) With intent to … 2) Dishonestly 3) And without claim of right 4) Uses of attempts to use any document
Definition Intent
In criminal law context there are two specific types of intent, firstly there must be an intent to commit an act and secondly and intent to get a specific result
Definition Obtain
Obtain s.217 CA61 In relation to any person means to obtain or retain for himself or any other person
Definition Property
Property s.2 CA61 Property includes any real or personal property, and any estate or interest in any real or personal property, any money, debt or electricity, or any other thing in action, or any other right or interest.
Define Pecuniary Advantage
Pecuniary Advantage Basically means an economic or monetary advantage R v HAYES A pecuniary advantage means anything that enhances the accused’s financial position it is this enhancement that constitutes the element of advantage.
definition Dishonestly
s.217 CA61 Dishonestly In relation to any act or omission means done or ommitted without a belief in an expressed or implied consent to or authority for the act or omission from a person authorized or entitled to give such consent
definition Claim of Right
Claim of Right s.2 CA61 In relation to any act, means a belief at the time of the act in a proprietary or possessory right to property against which the offence os alleged to have been committed. Although that belief may be based on ignorance, mistake o fact or any other matter of law other than the enactment against which the offence is alleged to have been committed.
Definition Takes
Takes s.219(4) For tangible property, theft is committed by the taking, when the offender moves the property or causes it to be moved.
Define; Document;
DOCUMENT s.217 CA61 Includes any part of a document in any form and includes: * pater materials containing anything that can be read * photos negatives and other related items Discs, Tapes, Cards and other device/equipment on which information can be stored or serves as a record. Rv MISIC Essentially a document is a thing which provides evidence or contains information or serves as a record.
Who does the offence of Theft by a person in a special relationship apply to? s.220 CA61
applies to any person who receives or has control over any property on terms or in circumstanes that that person knows require them to:
a) acount to any other person for the property or for the proceeds arising from the property
b) to deal with the property or any proceeds arising from the property in accordance with the requirements of any other person
What is the definition of and an example of valuable consideration?
Anything capable of being a valuable consideration, whether of monetary kind or any other kind, in short money or moneys worth.
eg. payment in return for goods and services,
goods given in eturn for services provided,
payment for goods received by issuing a false invoice,
a compensation, fee or payment.
What are the ways in which a false representation can be made?
Orally
in writing
by conduct
What are the two core elements of proof for the offence of theft by a person in a special relationship s.22 CA61
a) that he/she received property, on terms or circumstances which, to the defendants knowledge:
* affect what the accused may do with the property or its proceeds OR
* require the defendant to act in accordance with the requirements of another person.
b) The the defendant intentionally departed from the relevant obligation
What is the deference between s.249(1) and 249(2): Accessing computer system for dishonest purpose
s. 249 everyone is liable who directly or indirectly asseses any computer system ((1) and thereby) OR
* ((2)* with intent)
Dishonestly OR by deception and w/o claim of right:
a) obtains any Property, Service, Privelige, Benefit, PA of VC OR
b) causes loss to any person
The distinction is reflected in the words “thereby” and “obtains”:
(1) (7 years) is directed at the situation where a person has actually accessed a computer system, obtains the offending material or causes loss, wheras:
(2) (5 years) is directed at someone who actually asseses the computer system with that intent regardless of the result which may be unsucessfull.
What is the deifference between forgery (s.256) and altering or reproducing a document (s258)?
The differences rest in the varying degrees of document and intent.
With forgery an intent to decieve only is required not an intent to obtain by deception and the document must be a false document as defined in s.255.
In the offence of altering, concealing, destroying or reproducing a document you must prove the defendant intended to obtain by deception and the document can be any document.
Define access in relation to s.249 Accessing a computer system for dishonest purpose?
Access (s.248)
in relation to any computer system means:
- instruct,
- communicate with,
- store data in,
- receive data from.
- or otherwise make use of any of the resources of the computer system.
Define credit:
FISHER v RAVEN
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 supply goods or services.
Define false representation
The representation must be false and the defendant must know or beleive it to be false in a material particular, or be reckless whether it is false.
Almost certainty is not required and wilfull blindness as to falsity will suffice.
List the things a judge must consider when assesing a propensity evidence application?
1) the nature of the issue in dispute.
2) the probative value of the evidence.
* the frequency that the acts, ommissions, events or cicumstances have occured
* the connection in time between the acts, events, ommissions or circumstances which are the subject of the evidence and those which constitue the offence the defendant is being tried on
* the extent of simmilliarity between the acts …
* the number of persons making allegations against the defendant that are the same as or simmilliar tot he subject which the constitutes the offence the defendant is being tried upon an wether they may be the result of collusion or sugestibality.
* The extent to which the acts … are unusual
3) the prejudicial effect of the evidence on the defendant and whether:
* the evidence is likly to unfairly predisose the the fact finder against the defendant, and
* the fact finder will tend to give dissproportionate weight in reaching a verdict to evidence of other acts or ommissions
Disucss the criminal liability of a company when one of its employees commits a fraud offence
When a senior executive acting on behalf of a company commits an offence the company is the principal offender and the executive a party to the offence.
Criminal actions of other employees are not imputable to the company.
Define debt or liability?
Debt: money owing from one to another.
Liability: a legally enforceable financial obligation to pay such as the cost of a meal.
What is the ultimate issue in regards to the admissability of propensity evidence?
the degree to which its probative value outweighs its prejudicial effect.
What are the ingredients of forgery and when is the offence complete?
256 (1) 10years
- makes a false document
- with intent to obtain a Property, service, privilege, service, PA, benefit or VC.
256(2) 3 years
- makes a false document knowing it to be false,
- with the intent that it used or acted upon in NZ or elsewhere as genuine.
The offence is complete as soon as the document is created with the required intent. even though it may be incomplete.
Define R v MORLEY in relation to an intention to Deceive
R v MORLEY
an intention to deceive requires that the deception be practised in order to deceive the affected party, purposefull intent is necessary and must exist at the time of the deception.
no offence is commtted unless the decpetion is committed to deceive the victim or in the knolwedge that the victim is virtually certain to be deceived. Recklessness is insufficient.
