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CIB/CPK Study Cards - email BHCC36 > Deception - CIB008 > Flashcards

Deception - CIB008 Flashcards

1
Q

What 3 things must you prove in relation to false representation in S240

A

1- Intent to deceive
2- Representation by the defendant
3- The defendant knew it to be false OR was reckless whether it was false.

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2
Q

In terms of S240(2) there must be an intent to deceive what was found in R v Morley

A

R v Morley
- 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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3
Q

What are 3 ways can knowledge be established?

A

1 - Propensity evidence
2 - Circumstances surrounding the event
3 - An admission

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4
Q

Under S240 everyone is liable to 7 years prison if they

A

Are guilty of obtaining by deception or causing loss by deception and without claim of right

a- Obtains ownership, possession, control over any property or privilege, service, pecuniary advantage, benefit.

b- Incurring any debt or liability or credit

d- Causes loss to any person

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5
Q

Claim of right in relation to any act means?

A
  • A belief at the time of the act in a property or possessory right in property.
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6
Q

To prove a charge of theft by a person in a special relationship under S220(1), it is necessary to prove that the person knew they had to?

A
  • Account to any person for the property, or for any proceeds arising from the property.
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7
Q

The case R v Morley discussed the matter of loss in relation to S240(1)(d) CA61. What statement best describes what was held in this matter?

A
  • The prosecution must prove that the loss alleged by the victim must have been induced by, or caused in reliance upon the deception.
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8
Q

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

A
  • No offence committed.
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9
Q

For a charge under S240(1)(d) of CA61 (obtaining credit by deception) the obligation to repay means?

A
  • The obligation to repay must be a legally enforceable one.
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10
Q

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

A

fraudulent meaning dishonest in traditional purposes

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11
Q

A false document includes a document of which the whole or any material part purports to be made by who?

A

a- By a person who did not authorise its making
b- By a fictitious person
c- both of above are correct

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12
Q

What is meant by the following terms referred to in S240(1)(b) CA61
a- debt
b- liability

A

A- Debt means money owing from one person to another

B- liability means a legally enforceable financial obligation to pay such as the cost of a meal.

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13
Q

Where a person has been induced to part with goods by deception what are two steps he can take to avoid the deceives title?

A

1- Take all steps possible to bring it to the offenders notice
2- Advise Police that the goods were obtained by deception.

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14
Q

What is the definition of Credit plus the case laws?

A

Credit - Fisher v Raven
- Refers to the obligation on the debtor to pay or repay in the time given to do so. The obligation to pay must be legally enforceable

R v McKay
-Credit had been obtained but at that time the accused did not possess an intent to deceive

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15
Q

To Successfully prosecute a person on a charge of using altered or reproduced documents with intent to deceive under s259 CA61 name three mental elements you must prove?

A

1- The defendant must know that the document has been altered and had an intent to device.

2- The defendant must have intended by the employment of the document or by causing another to use or rely on it, to obtain by deception any property, privilege, pecuniary advantage, benefit or valuable consideration or cause loss to any person.

3- There must be an intention to acquire or retain the property or to cause loss by deception.

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16
Q

How is the term representation interpreted not defined by the courts. State the relevant case law for Simester and Brookbanks?

A

Simester and Brookbanks
- This is not defined. Examples have included representation about a past or present fact, about a future event or existing intention, opinion, belief, knowledge or other state of mind. It must be capable of being false so it must contain a proposition of fact.

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17
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 arrested two days later.

A- What offence has he committed?
B- Who has the title to the item obtained by the offender?

A

A- Obtained by deception

B- Offender has title but it was obtained by deception.

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18
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 you understanding in relation to the term (False in a material particular)

A

A minor detail maybe of a “material particular” if it of consequence to the facts of the case. The question of materiality will be assessed objectively. Material particular is not defined in CA61 and can be given its usual meaning of an important essential or relevant detail or item.

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19
Q

Investigation into company fraud will usually involve enquiries with the Ministry of Commerce. State 4 possible sources there?

A
  • Insolvency services
  • Registrar of companies
  • Official assignee
  • Companies office
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20
Q

A- What knowledge must an accused person have to be liable for making a false representation? State the definition of False representation. (FR is wilful blindness)
B- How can knowledge be established?

A

A- The accused must know or believe that it was false in a material particular, or be reckless whether it is false. Absolute certainty is not required and wilful blindness as to falsity of the statement will suffice.

B- knowledge can be establish by:

  • Propensity evidence
  • Circumstances around the event
  • Admissions
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21
Q

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

A

On previous or later occasions to the offence charged, is admissible where there is a sufficiently strong connection between the offences.

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22
Q

John and Jill get divorced. Jill is awarded the Jaguar car in the divorce settlement. Jill goes on an overseas trip. Before going she leaves the jag with her friend. She does not tell Cheryl anything about the divorce settlement.

John seizes the opportunity to recover the car. He goes to Cheryl’s and spins her a yarn. She is happy with the story and gives over the keys.

A

S240(1)(a) CA61 - 7 yrs.

1- By any deception
2- And without claim of right
3- Obtains possession of or control over any property.

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23
Q

What are the penalties of obtaining by deception offences?

A
  • Loss caused exceeds $1000 = 7 years imprisonment
  • Loss caused exceeds $500 - $1000 = 1 year imprisonment
  • Loss caused under $500= 3 months imprisonment
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24
Q

What is the definition of deception?

A

Deception - S240(2)CA61
a- A false representation whether oral, documentary or by conduct where the person making the representation intends to deceive any other person and -
- know it was false in material particular or
- is reckless whether it was

b- an omission to disclose a material particular with intent to deceive any other person, where there is a duty to disclose it

or

c- a fraudulent trick, deceive or stratagem used with intent to deceive.

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25
Q

What is the definition of computer system under S248 CA61

A

a- Computer system means:
1- A computer or
2- 2 or more interconnected computers or
3- Any communication links between computers or to remote terminals or another device or
4- 2 or more interconnected computer combined with any communication link between computers or to remote terminals or ay other device.

b- includes any part of the item described in paragraph (a) and all related input.

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26
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 when?

A
  • Under no circumstances as the investigator does not have a power to arrest.
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27
Q

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

A
  • The property is brought by a third party from a person who obtained it by deception before the original owner voids any title.
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28
Q

In relation to the offence of obtaining credit by deception under S240(1)(b) CA61 which of the following statement is NOT correct?

A
  • Under the definition of obtain in S217 CA61, it is not sufficient that the accused obtained the extension of credit to another person.
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29
Q

The case R v Hayes defined pecuniary advantage as?

A
  • Anything that enhances the accused finical position.
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30
Q

A person can only be charged under S249(1) CA61 in relation to accessing a computer system for dishonest purposes when?

A
  • They actually obtained any property, privilege, pecuniary advantage, benefit or valuable consideration or loss to any person.
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31
Q

The term credit means?

A
  • An obligation to pay or repay with time in which to pay.
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32
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.
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33
Q

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

A
  • It is proved that the accused did in fact exercise some control over the thing.
34
Q

For propensity evidence to be admissible the ultimate issue is?

A
  • The degree to which the value of the evidence outweighs the prejudicial effect.
35
Q

The term valuable consideration means the person can?

A
  • Obtain anything capable of being valuable consideration, whether of a monetary kind or any other kind.
36
Q

What two points were made in the case R v Harney in relation to recklessness?

A
  • Recklessness consciously and deliberately taking an unjustifiable risk, together with an intent to continue the act regardless of the risk.
37
Q

When interviewing a victim who alleges they have been defrauded, what 2 important questions should you ask?

A

1- That the false representation was believed and

2- That the consequences of that belief made the victim part with their money.

38
Q

Apart from a false representation what matter would constitutes a deception as defined under S240(2) CA61. Explain S240(2)CA61

A

Deception - S240(2)CA61
a- A false representation whether oral, documentary or by conduct where the person making the representation intends to deceive any other person and -
- know it was false in material particular or
- is reckless whether it was

b- an omission to disclose a material particular with intent to deceive any other person, where there is a duty to disclose it

or

c- a fraudulent trick, deceive or stratagem used with intent to deceive.

39
Q

What are the essential element of the forgery offences as set out in S256(1) CA61

A
  • Everyone is liable to imprisonment not exceeding 10 years who makes a false document with intent of using it to obtain any property, privilege, pecuniary advantage, benefit or valuable consideration.
40
Q

What the essentials elements of S228 CA61 Taking or Using a document?

A

Everyone is liable for a term of imprisonment not exceeding 7 years who with intent to obtain any property, pecuniary advantage, valuable consideration or service
a - Takes or obtains a document or
b - uses or attempts to use a document

41
Q

An offender using a 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 charge?
b- who has title?

A

a- obtaining by deception S240(1)(a) CA 61

b - The shop still has title and offender has possession only

42
Q

Harry enters a major retail store and selects an expensive dewalt drill. He removes the $323.99 price tag and replaces it with a $59.99 price tag from a cheaper drill. He takes the drill to the checkout operator and harry says nothing. The checkout operator scans the price tag and charges him the cheaper price. Harry pays cash and then leaves the store with the drill

Complete a CL and discard using a document

A

S240(1)(a) CA 61

  • By any deception
  • And without claim of right
  • Obtains ownership of any property
43
Q

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

A
  • Robert has obtained the vehicle by deception as someone else had a special property or interest in the vehicle
44
Q

A person who has property on hire purchase has?

A
  • Possession only
45
Q

What is a type of valuable consideration?

A
  • Issuing a false invoice to receive payment for goods never supplied.
46
Q

What is the difference between forgery and altering and reproduction of a document?

A
  • Forgery an intent to deceive only is required, not an intent to obtain by deception
  • In the offence of altering or reproducing a document you must prove that offender intended to obtain by deception
47
Q

Define access when it comes to computer offences?

A
  • 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.
48
Q

The key to a successful company fraud investigation is to seek advice early. Outline the suggested 6 sources of specialist information you should canvass and the type of assistance those sources can provide?

PMC FNL

A

1- Police accountants and legal officers:
2- Ministry of business, innovation and employment:
3- Commerce Commission:
4- Financial Markets:
5- NZ customs:
6- Liquidators and receivers:

49
Q

How can police accountants and legal officers help an investigation in company fraud?

A
  • Police forensic accountants are available to give you advice and if necessary to assist personally.
  • Legal section can be of help in preparing production orders , search warrants and charges.
50
Q

How can the Ministry of business, innovation and employment help?

A

IROC

51
Q

How can the commerce commission help?

A
  • Can assist in matters relating to Fair trading Act 86, Unsolicited goods and service act 75, pyramid selling.
52
Q

How can the financial markets authority help?

A
  • In matters relating to Securities Act 78 and issuing of prospectuses
53
Q

How can NZ customs help in investigation?

A
  • In matter involving international travel and CAPPS alerts
54
Q

How can liquidators and receivers help?

A
  • These administer companies that are in liquidation or receivership. They are usually accountants.
55
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 loss. In these circumstances any criminal liability rest with?

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.
56
Q

How can title be voided?

A
  • Make a police complaint
57
Q

John finds a gym membership card for the local gym and pool. Its a hot day so John goes to the pool and uses this card to gain entry without paying. What offence has he committed?

A
  • Uses a document
58
Q

John purchases property with a valueless cheque on Tuesday. John sell it to Mike the local pawn shop on Wednesday, mike sells it to Jane the same day. On Thursday the valueless cheque is dishonoured and reported to the Police. Who will have legal tittle to the property? or who will take possession of the property?

A
  • Jane
59
Q

In relation to inducement what must the deceived person believe?

A
  • The deceived must believe the false representation was true.
60
Q

In relation to s240(2) besides making a false representation by oral what other ways can it be made?

A

b - an omission to disclose a material particular with intent to deceive any other person, where there is duty to disclose it

c- a fraudulent trick, device or stratagem used with intent to deceive.

61
Q

List the things a judge may consider when considering propensity evidence?

A

a- The frequency with which the acts, omissions, events or circumstances which are the subject of the evidence have occurred

b- The connection in time between the acts, omission or events of the evidence and those of the offence

c- The extent of similarity between the acts, omissions or events of the evidence and those of the offence

d- The number of persons making the allegations against the defendant that are similar to the offence for which the defendant is being tried

e- Whether the allegation described in paragraph d may be the result of collusion or suggestibility

f- the extent to which the acts, omissions, events or circumstances of the evidence and those of the offence for which the defendant being tried are unusual.

62
Q

Mary lives alone and she gets mail from Kiwibank for the previous tenant. it contains a credit card, she gets another letter from the bank which has a pin number of that card. She takes the card to the supermarket and uses the card and purchases groceries.

Complete a CL

A

Uses a document
S228(b) CA61 - yrs

1- with intent to obtain any property
2 dishonestly
3- and without claim of right
4- uses a document

63
Q

What must you prove in relation to accessing a computer for dishonest purposes?

A

You must prove the offender ID and that they
1- directly or indirectly
2- accessed any computer system
3- dishonestly and without claim of right
4- obtained ownership or possession of, or control over
5- any property, privilege, service, pecuniary advantage, benefit or valuable consideration
6- or caused loss to any person.

64
Q

When can goods be said to obtain by offender?

A

Obtain for themselves or some other person

65
Q

Representation can be made in three way or a combination of three ways. What are they?

A

Orally, documentary or by conduct

66
Q

What are the difference between obtaining property by deception and theft with regard to possession?

A

The difference between theft and obtaining property by deception is that in theft the property is obtained without the owners permission and title is not passed on

67
Q

When is forgery complete?

A

As soon as the document is made with intent obtain any property, privilege, pecuniary advantage, benefit or valuable consideration

68
Q

Describe a situation when a person may not by physically present at a computer to access it?

A

A person may not be physically present at a computer but can gain access to it via software that remotely infects computers

69
Q

Outline category A

A

Large scale thefts and other dishonest offences against an employer by employees. Usually by poeople in position to manipulate the companys finicial system.

They are usually CA offences such as:

  • Dishonest taking or using a document
  • Theft by person in special relationship
  • Altering or reproducing documents
  • Using altered or reproduced documents
  • accessing computer for dishonest purposes
  • Forgery
  • Obtaining ownership, possession or conduct by deception
70
Q

Outline category B

A

Dishonest offences committed against financial institutions by people outside the institution such as:

  • False statement by promoter
  • Dishonestly taking or using document
  • Accessing a computer for dishonest purposes
  • Forgery
  • False accounting
71
Q

Outline category C

A

Commercial fraud committed against the public by people who, either as individuals or through the guise of a company, entice people to invest money.

  • False statement by a promoter
  • Obtaining ownership, possession or control by deception
  • Obtaining credit by deception
72
Q

Outline category D

A

Dishonestly offences committed by professional people in a position of trust such as solicitors and accountants against their clients.

  • Theft by a person in special relationship
  • Dishonestly taking or using documents
  • Using forged documents
73
Q

Outline and explain the 4 beliefs in relation to claim of right?

A
  • First there must be a belief in a proprietary or possesory right in property. That belief must be in relation to the element of ownership of the property.
  • Second the belief must be about a right to the property in relation to which the alleged offence has been committed.
  • Thirdly the belief must be held at the time of the conduct to constitute the offence.
  • Fourthly that belief must be held by the defendant. It is not required to be reasonable or reasonably held and maybe based on ignorance or mistake.
74
Q

Give an example of the continuing effect in relation to representation?

A

Entering a restaurant and ordering dinner representation that the diner will follow the normal practise and pay for the meal. If during the meal he decides to avoid that payment, the continuing representation will become false and the obtain of food will come under s240 CA61

75
Q

What is meant by special interest?

A

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.

76
Q

What is an example of theft by conversion?

A

If person has hired property and then later sold it to another person that is theft by conversion.

77
Q

Paul is the director of a small company installing windows for domestic property. He has a large back log of jobs to complete doe to the manufacturing delays by his supplier in making the windows. His finical situation deteriorates and he continues to receive deposits from clients in order to pay his bills. Paul thinks he can trade his way out of finical difficulties. Is Paul liable for deception?

A

No offence. Paul did not have an intent to deceive or obtain by deception he made no false representation and believed he could work his work out by money from other places to pay more urgent ones.

78
Q

In relation to inducement what was held in the case R v Laverty?

A

The prosecution must prove that the person parting with the property was induced to do so by the false representation

79
Q

When cheques are dishonoured due to lack of funds interview the account holder and obtain a statement that includes?

A

1- Suspect name, address, occupation
2- Date the account was opened
3- Nature and amount of the first deposit
4- General pattern of the way the account was operated
5- Details of any overdraft arrangements
6-The amount of any savings in the account

80
Q

What enquires should be made when a account is opened with fictitious details?

A
  • The account number and the date it was opened
  • The nature and amount of the first deposit
  • Details of any other deposits
  • The details used when the account was opened
  • Description of any suspect and any other associates at the time.
  • Serial number of the cheques supplied
  • Details of the dishonoured cheques and the people or firms defrauded
81
Q

Police investigating the fraudulent use of a credit cards or cheques must conduct enquiries with the bank where the account is domiciled. List the information an investigator must obtain from the bank?

A

1 - the account holders name, occupation, private and business address and phone numbers.
2 - Date the account was opened
3- Account history and how it been operated
4- Date the cheque book or card was reported missing
5- How and by whom a loss was reported
6- Serial numbers of missing cheques
7- Details of any cheques dishonoured and returned
8- Whether the account holder is suspected of issuing valueless cheques.

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