Deception (General) Flashcards
1
Q
“Intend to obtain” definition as in Section 228 CA 61?
A
The defendant MUST intent to obtain, and he or she must intend to obtain BY deception
2
Q
What is the definition of “Obtain” as found in Section 217 CA 61?
A
Obtains, in relation to any person, means obtain or retain for himself, herself or for any other person
3
Q
What is the definition of “Property” as found in Section 2 CA 61?
A
This includes 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 other right or interest
4
Q
What is the definition of “Service” as found in R v Cara?
A
Service is limited to financial or economic value and excludes privileges and benefits
5
Q
What is the definition of a “Pecuniary advantage” as found in Hayes v R?
A
A pecuniary advantage is anything that enhances the accuseds financial position. It is that enhancement which constitutes the element of advantage
6
Q
What is the definition of a “Valuable Consideration” as found in Hayes v R?
A
Anything capable of being valuable consideration, whether of a monetary kind or of any other kind; in short, money or moneys worth
7
Q
What is an example of a Valuable Consideration?
A
- 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 supplied
8
Q
What is the definition of “Dishonestly” as defined in the Crimes Act?
A
In relation to an act or omission, means done or omitted without a belief that there was expressed or implied consent to, or authority for, the act or omission from a person entitled to give such consent or authority
9
Q
What was the discussion in R v Hayes around dishonesty?
A
The court in R v Hayes noted that the objective facts of a particular case may be such that the jury can properly infer that the defendant had a dishonest mind unless he or she can raise a reasonable doubt on the basis of a relevant but mistaken belief
10
Q
Belief (as to consent) in regards to Section 228 CA 61 may be either:
A
- 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 authoirsed by a person entitled to authorise it
11
Q
What is significance with regard to the “belief” held and its interpretation under S217?
A
That absence of any reference to the relevant belief having to be reasonable or based on reasonable grounds is significant
12
Q
What is the definition of “Claim of Right” as defined in the Crimes Act ?
A
In relation to any act, means a belief at the time of the act in a proprietary or possessory right in property in relation to which the offence is alleged to have been committed, although that belief may be based on ignorance or mistake of fact or of any matter of law other than the enactment against which the offence is alleged to have been committed
13
Q
What does the change of definition for “Claim of right” mean for the belief requirement of the defendant?
A
It now requires that the defendant have, at the time of the act alleged to constitute the offence, a belief in a proprietary or possessory right in the property in relation to which the offence is alleged to have been committed.
14
Q
What are the FOUR requirements in the nature of belief required for S228?
A
- A belief in a proprietary or possessory right to the property
- The belief must be held in respect of THAT property
- The belief must be held AT THE TIME of the offence
- The belief must be ACTUALLY held
15
Q
What can “property” include for Section 228?
A
It may include, in appropriate cases, intangible property that cannot be possessed but may be owned
16
Q
Does the defendant have to believe he or she has the relevant possessory or proprietary interest?
A
With the new definition, it is only a belief that such a right exists and therefore it could be argued that a defendant could rely on a belief as to anothers legal rights
17
Q
What nature of belief as to the proprietary or possessory right to property will NOT be sufficient as a defence?
A
If there is a belief that the defendant had a proprietary or possessory right in relation to OTHER property and was therefore justified in taking or dealing with the property in regard to which the offence was allegedly committed.
18
Q
What is NOT a requirement in the nature of belief required for S228?
A
That the belief is required to be reasonable or reasonably held.
19
Q
What MAY a belief be based on for S228?
A
Ignorance or mistake
20
Q
Is the reasonableness of the belief relevant for S228?
A
The reasonableness of the belief may be relevant in determining whether the defendants assertion of the belief is credible.
21
Q
Is “taking” defined by statute?
A
No but can be read, for the purposes of S228, in conjunction with the definition of theft.
22
Q
What can the definition of “taking” be derived from? And what does it state?
A
It can be read in conjunction with the definition of theft;
Theft is committed by a taking when the offender moves the property or causes it to be moved
23
Q
How can Ownership, Possession or control be obtained?
A
Directly or indirectly and includes coming into possession with or without the consent of the owner.
24
Q
What is the definition of a “Document” as provided in the Crimes Act?
A
A document, or part of a document, in any form and includes;
- Any paper or other material used for writing or printing and can be read
- Any photograph / negatives and related items
- Any disc, tapes, cards or other devices/equipment on which information is stored and can be reproduced
- Any material where information is supplied to any device used for recording / storing / processing information
25
How must legislation be interpreted with regard to a "Document"?
Developments in technology may improve the way evidence or information is provided or a record is kept but this does not change the purpose of the technology.
26
What must the prosecution prove in relation to "Uses or attempts to use document"?
That the offender used (or attempted to use) the document with intent to obtain the property, service, valuable consideration, pecuniary advantage or valuable consideration.
27
What can "Use" include?
A single action such as handing over a document to its intended recipient or the continuing use of a document
28
What is the definition of "Attempts" as under S72 Crimes Act 1961?
- Everyone who
- Having intent to commit an offence
- Does or omits an act for the purpose of accomplishing his object is guilty of an attempt to commit the offence intended
- Whether in the circumstances it was possible to commit the offence or not
29
What is a "Question of law" in relation to attempts?
Whether an act done or omitted with intent to commit an offence is or is not only preparation for the commission of that offence, and too remote to constitute an attempt to commit it, is a question of law.
30
When will an act or omission with intent to commit an offence constitute an attempt?
If it was immediately or proximately connected with the intended offence, whether or not there was any unequivocally showing the intent to commit that offence.
31
Where is the definition of "Deception" found?
Under S240(2) CA 61
32
What is the definition of "Deception" as found under S240(2) Crimes Act 1961?
(a) A false representation, whether oral, documentary or by conduct, where the person making the representation intends to deceive any other person and;
- Knows that it is false in a material particular
- Is reckless as to whether it is false in a material
particular.
(b) An omission to disclose a material particular, with intent to deceive any person, in circumstances where there is a duty to disclose
(c) A fraudulent device, trick or stratagem used with intent to deceive any person
33
What are examples of a "Representation" in reference to the definition of "deception"?
- Representations about a past or present fact
- About a future event
- About an existing intention, opinion, belief, knowledge or other state of mind.
34
What does Simester and Brookbanks suggest a "representation" is?
It must be capable of being false so it must contain a proposition of fact
35
What must the representation be under the current law?
It must be false and the defendant must know or believe that it is false in a material particular, or be reckless whether it is false.
36
What is not required for representation under the current law?
Absolute certainty is not required and wilful blindness as to falsity of the statement will suffice.
37
What was stated in Carlos v R in regards to a representation?
It was directed that if more than one false representation is alleged, each misrepresentation should be included in a separate count.
38
What must you prove for S240 CA 61?
- That there was an intent to deceive
- That there was a representation by the defendant
- That the representation was false; and that the defendant either:
- Knew it to be false in a material particular OR
- Was reckless whether it was false in a material
particular
39
When is no offence committed? (S240 CA 61)
No offence is committed unless the false statement, non disclosure or trick etc is made or used by the defendant for the purpose of deceiving their victim, or in the knowledge that the victim is virtually certain to be deceived.
40
What did Simester and Brookbanks state is insufficient in regard to an "intention to deceive" in S240 CA 61?
That it is insufficient that the deception is done in the mere awareness, without so intending, that the victim may be deceived. That would be a case of recklessness rather than intent and falls outside the scope of S240(2).
41
What does "Recklessness" in S240(2) CA 61?
It ONLY refers to whether the representation is false in a material particular.
42
Who does the deception need to be made to?
It need not have been made to the person actually delivering over the property, granting credit, conferring a benefit or suffering a loss provided the deception was the cause of the relevant conduct.
43
What is an example of "Orally" for S240 CA 61 ?
Verbally claiming to own goods that are in fact subject to a hire purchase agreement
44
What is an example of "By conduct" for S240 CA 61?
Representing oneself to be a collector for charity by appearing to be carrying an official collection bag.
45
What is an example of "Documentary" for S240 CA 61?
Presenting a false certificate of qualification or completing a valueless cheque on an account in which there are no funds knowing the cheque will not be honoured.
46
What can you consider when evaluating whether a representation made by the defendant meets requirements under S240 CA 61?
It is possible to look beyond the literal meaning of express words used by the defendant and consider whether a particular meaning can be IMPLIED from his or her conduct.
47
What can a representation by words or conduct have?
A continuing effect.
48
What is an example of a representation by words or conduct having a continuing effect?
Entering a restaurant and ordering dinner represents that the diner 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 the obtaining of food will come within S240.
49
Is silence included as a false representation?
As a general rule, silence or non-disclosure will not be regarded as a representation, but there are exceptions to this such as where an incorrect understanding is implied from a course of dealing and the defendant has failed to negate that incorrect understanding.
50
What is an exception to the rule on silence?
This is found in label swapping cases where Dronjak was shopping in a department store, asked and was told by a shopkeeper the price of an item but when he took it up to the counter, the product bore two pricetags and he didn't speak up when the attendant scanned the lesser amount.
It was commented that by maintaining silence in a mistake known to him and by deliberately refraining from drawing attention to the mistake he had obtained title by deception.
51
What must the prosecution prove in relation to a false representation?
The prosecution must prove that the defendant knew the representation was false in a material particular or was reckless as to its falsity.
52
How can knowledge be established?
- An admission
- Implication from the circumstances surrounding the event
- Propensity evidence
53
What did R v Crooks hold in relation to knowledge?
That the defendant may also be liable if their conduct has amount to "wilful blindness" and thus equated to knowledge.
54
What is a "Material particular" as defined in R v Mallett ?
A matter will be a material particular if it is something important or something that matters
55
What is meant by an omission to disclose a material particular?
Section 240(2)(b) concerns an omission to disclose a material particular, with intent to deceive where there is a duty to disclose
56
What is the definition of an "omission"?
Omission is inaction - e.g. not acting. It can either be a conscious decision not to do something or not giving thought to the matter at all.
57
In S240(2)(b) you are required to show an intent to deceive, what else must you show?
It also requires you to show that there was some material particular that was not disclosed, that the defendant was under a duty to disclose and that the defendant failed to perform that duty.
58
Where does a "Duty to disclose" originate?
Often it will originate in the civil law, for example, where the parties are in a contractual relationship
59
What does Section 240(2)(c) concern?
A fraudulent device, trick or strategem used with intent to deceive any person
60
What does the provision of "A fraudulent device, trick or strategem used with intent to deceive any person" introduce?
It introduces a criminal offence of fraud and effectively covers any form of fraudulent conduct. The conduct must be accompanied by an intent to deceive.
61
What can the circumstances of "Fraud" range from?
Simple trickery to more complex schemes such as pyramid moneymaking schemes.
62
What is the definition of a "device"?
A plan, scheme or trick
63
What is the definition of a "Trick"?
An action or scheme undertaken to fool, outwit or deceive
64
What is the definition of a "Stratagem"?
A cunning plan or scheme especially for deceiving an enemy, or trickery.
65
What is underlying each term "device, trick or stratagem"?
Concepts of Deceit and Dishonesty
66
What is the definition of "Privilege" or "Benefit" ?
These are not limited to a privilege or benefit of a pecuniary nature. Both of these words mean a "Special right or advantage".
67
What are examples of a "privilege or benefit"?
- Using another persons gym membership card so that you can use the gym facilities
- Access to medical services
- The withdrawal of an assault charge
- The reduction in sentence for an offence
68
What if the "Privilege or benefit" does not involve money?
There does not need to be financial loss or injury to the person who has been defrauded.
69
When are "Goods" obtained?
If the goods come under their control, even though they may not have physical possession of them.
70
How may "Property" be obtained?
If a deception made to one person means that the property is then actually obtained from another person, provided that the deception operated on the mind of the person giving up the property.
71
What is an example of obtaining possession by fraud from a third person?
Where there is an agreement that the sending of some item (e.g. a cheque by post) shall complete a transaction, the "obtaining" is complete at the time of posting.
72
What is the distinction between theft and obtaining by deception?
In theft, the property is obtained without the owners permission and title is not passed on.
73
What is the definition of "Ownership" synonymous with?
It is synonymous with the concept of title.
In certain circumstances a person parting with goods not only relinquishes possession to the other person, but also passes on a legal right of ownership to the goods.
74
If possession is obtained by fraud, what does the offender gain?
The offender will typically gain both "title to" or "property in" goods (ownership) and possession because the person parting with the goods intends to give the other person both possession and ownership.
75
"Special interest" meaning?
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
What is an example of "special interest" ?
A contractors lien being placed over property - a right over anothers property to protect a debt charged on that property - until the debt was paid or the goods were voluntarily parted with. This would enable him to retain possession of the car and would give a special property or interest in the vehicle.
77
What was held in R v Cox RE a special interest lien?
The owner of the car who, by false pretences, induced the garage proprietor to give up his lien over and possession of the car had obtained the vehicle by false pretences.
78
What does it mean to "Control" something?
It means to exercise authoritative or dominating influence or command over it.
79
What does ordinary usage of the word "control" show ?
That a defendant does not have to possess something in order to control it.
80
What does the prosecution not need to prove in relation to "Control"?
That the accused was in actual possession of the property. It may be sufficient that the accused exercised control over the property through an agent.
81
What is insufficient for "control" ?
It is insufficient that the dishonestly obtained property was found at the premises of which the defendant had control. It must be proved that the defendant did in fact exercise some control over the particular property.
82
What does "Pecuniary advantage" mean?
Economic or monetary advantage
83
What are examples of "Pecuniary advantage"?
- Cash from stolen goods
- Clothing or cash obtained by a credit or EFTPOS card
- A discount (by using a student ID card)
- Avoiding or deferring payment of a debt
84
What is the definition of "Debt"?
Means money owing from one person to another
85
What is the definition of "Liability"?
A legally enforceable financial obligation to pay, such as the cost of a meal.
86
What is the definition of "Credit"?
Refers to the obligation on the debtor to pay or repay, and the time given for them to do so by the creditor.
87
What must you prove for a charge under Section 240(1)(b) CA 61 (Being obtaining credit by Deception)?
The identity of the defendant and that they;
- By deception and without claim of right
- In incurring any debt or liability
- Obtained credit
88
What do you need to note in regard to a debt or liability?
It must be legally enforceable. This means that if the contract is void or illegal there will be no offence.
89
What do you need to note in regard to an obligation to pay?
It must be legally enforceable against whomever the credit is obtained (usually the defendant)
90
What does "time to pay" mean in reference to a "credit"?
Credit may involve varying periods of time. Credit can be obtained over lengthy periods, as in loan agreements, or for a matter of minutes, such as the time taken to consume a meal or receive a haircut. At the end of the period of credit, payment is expected to be made.
91
What did "Adams on Criminal law" highlight re credit?
The long-standing authority that has held that credit must be obtained by and given to the defendant personally.
92
What does the definition of "Obtain" extend in regards to the Adams on Criminal Law information provided?
That it will be sufficient that the defendant obtained the extension of credit to another person
93
What is an example of situations where credit may be obtained?
- Obtaining money on loan
- Extending existing overdraft facilities
- Renting or leasing a dwelling
94
When is gaining credit unlawful?
It is not in itself unlawful unless it is accompanied by an intent to deceive.
95
When must the defendant have the intention to deceive?
The intention to deceive is essential and must exist at the time when the deception is perpetrated. So when the credit is obtained, a later decision not to repay is insufficient.
96
What is an example of the timing of an intention to deceive?
In relation to meals at a restaurant, in order to convict the offender you must prove that they had an intent to deceive when they either entered the restaurant or started their meal.
97
What is credit?
Credit is an intangible thing. Credit obtained must be in respect of a monetary obligation.
98
If the defendant obtains a non-monetary benefit what would be the appropriate charge?
Most likely a charge under S240(1)(a) depending on the facts of the case.
99
What is an example of obtaining credit by deception?
If a shopkeeper mistakes a customer for someone else and gives them credit, the customer is guilty of obtaining credit by deception if they are aware of the mistake and accept the credit with no intention of paying later.
100
What did Adams on Criminal Law say in regard to continuing representations?
That in many cases a representation, whether by words or conduct, may be of continuing effect.
101
What is an example of a continuing representation?
Entering a restaurant and ordering a meal would be a representation that one will pay for the meal at the appropriate time. If the diner then decides to avoid payment, the continuing representation of an intention to pay will become false and any obtaining of food will come within S240.
102
Intent to deceive is not present merely because there is:
- Delay or non-payment of the debt or
- An inability to perform a bona fide intention.
103
What is NOT an example of incurring debt by deception?
To incur a debt and then be unable to pay through unforeseen circumstances, loss of money or oversight is not deceit.
104
Does witholding payment amount to fraud?
Intent to deceive does not exist where payment is withheld because of genuine dissatisfaction with the service.
e.g. where the cost of a meal is refused because of the quality of food (made before wholly consuming the food)
105
Can obtaining goods on hire purchase amount to deception?
Where they are obtained on hire purchase by a false representation, the offence committed is deception.
106
If goods are obtained on hire purchase by a false representation and then sold to another, what is the appropriate charge?
Theft by conversion as the offender never receives title for goods fraudulently obtained on hire purchase.
107
What is the definition of "induces" ?
To persuade, bring about or give rise to
108
What does Simmester and Brookbanks suggest in terms of the definition of "induces"?
That the scope of the induced conduct is very wide. Another person must be induced or caused to do any of "Deliver over, execute, make, accept, endorse, destroy or alter" the document or thing
109
What should inducement be proved by?
Wherever possible, it should be proved by direct evidence from the person alleged to have been defrauded.
110
In practice, proving inducement, the victim of the deception is usually questioned to elicit answers proving:
- That the false representation was believed and
- That it was the consequence of that belief that the victim parted with his or her money
111
What was held in R v Granger ?
That in the absence of direct evidence a reasonable inference can be drawn in certain circumstances that the owner was induced by the representation to part with his money.
112
What must there be for a charge containing "inducement" ?
There must be a belief in the truth of the representation.
113
What is an example of an attempt at obtaining by deception where there the elements of "inducement" are not met for the full offence?
Where the owner parts with property solely as a means of trapping the defendant AND
Where the person believes the representation but is not induced to part with property.
114
What must be the "cause" of the deception?
The defendant, or an act of the defendant, must be the substantial and operative cause of the delivery, execution etc, of any document capable of deriving pecuniary advantage.
The accused MUST cause the loss.
115
What is the definition of "Deliver over" ?
Is to surrender up someone or something
116
What is the definition of to "execute"?
To put a course of action into effect.
117
What is the definition of to "endorse"?
To write or sign on a document
118
What is the definition of to "Alter"?
To change in character or composition, typically in a comparatively small but significant way
119
What is the definition of to "accept"?
To receive something
120
What is the definition of a "Thing"?
It is a broad and encompassing concept, however, a "thing" must be tangible and must be capable of being used to derive a pecuniary advantage.
121
What is the definition of "Loss"?
It is not defined in statute but in most cases will involve financial detriment to the victim.
122
Will all forms of "Loss" be covered under causing loss by deception?
No, not all forms of loss will come within this section. Property or valuable things will be the subject matter of loss, but it is less clear where a loss concerns something that is non-quantifiable.
123
Does a loss caused by deception need to be direct or indirect?
The loss caused by deception must be in the nature of a direct loss. Indirect losses, such as expectation loss (loss of a bargain) and loss of anticipated future profits are not included.
124
What did R v Morley conclude in relation to losses?
The loss alleged by the victim must have been induced by, or caused in reliance, upon the deception. But deception need not be the only operative factor, so long as it played a material part in occasioning the loss.
125
What did the courts consider needed to be assessed in relation to a "loss"?
The complainants position before the deception and whether it had been diminished or impaired.
126
Under Section 240(1)(d) what is NOT required in relation to a loss?
It is not required that the person who suffers the loss be the person who was deceived.
127
Where a "loss" is more in the nature of a benefit than of property, what may be the more appropriate charge?
A charge under Section 240(1)(a) CA 61.
128
What is required to be proved for causing loss by deception?
that:
- The loss was caused by deception
- It was reasonably foreseeable some more than trivial loss would occur but
- Need not prove the loss was intentionally caused
129
What is there no requirement to prove for causing loss by deception?
There is no requirement that there be any benefit to anyone
130
What is the penalty for deception offences?
If the loss caused or the value of what is obtained or sought to be obtained exceeds:
- $1000 - 7 years imprisonment
- $500 but not $1000 - 1 year
- Does not exceed $500 - 4 months
131
What is the definition of propensity as found in Section 40 Evidence Act 2006?
Evidence that tends to show a persons propensity to act in a particular way or to have a particular state of mind, being evidence of acts, omissions, events or circumstances with which a person is alleged to have been involved
132
What does propensity not include?
Evidence of an act or omission that is
- One of the elements of the offences for which the person is being tried or
- The cause of action in the proceeding in question
133
What are the restrictions around propensity evidence?
Propensity evidence about;
- A defendant in a criminal proceeding may be offered only in accordance with Section 41, 42 or 43 and
- a complainant in a sexual case in relation to the complainants sexual experience may only be offered in accordance with section 44
134
Do the rules of propensity apply to evidence of veracity?
Evidence that is solely / mainly relevant to veracity is governed by veracity rules and therefore the rules around propensity do not apply to evidence of that kind.
135
When may the prosecution offer propensity evidence about a defendant as person Section 43 Evidence Act 2006?
Only if the evidence has a probative value in relation to an issue in dispute in the proceeding which outweighs the risk that the evidence may have an unfairly prejudicial effect on the defedant.
136
When assessing the probative value of evidence, what may the judge consider?
- The frequency the relevant acts etc occurred
- The connection in time
- The extent of similarity in the acts
- The number of persons making allegations against the defendant
- Whether the allegations may be a result of collusion or suggestibility
- The extent to which the circumstances are unusal
137
When assessing the prejudicial effect of evidence on the defendant, what must the judge consider?
- Whether the evidence is likely to unfairly predispose the fact-finder against the defendant and
- Whether the fact finder will tend to give disproportionate weight in reaching a verdict to evidence of other acts or omissions
138
When is propensity admissible in deception charges?
Where there is a sufficiently strong connection between the offences.
139
What is an example of propensity evidence being admissible in a charge of deception?
Evidence that other cheques drawn by the defendant were dishonoured may be evidence of the circumstances in which the cheque that is the subject matter of the charge was drawn, and therefore directly relevant to the defendants state of mind when he or she issued it.
140
When would propensity evidence not be admissible in a charge of deception?
Persistent dishonesty across the board, embracing a number of offences, would not in itself bring the propensity rule into play. It is more likely to be deployed in cases involving specific offences with a discernable methodology or pattern
141
What did R v Sharma conclude in relation to propensity evidence?
That the ultimate issue is the degree to which the probative value of the evidence outweighs its prejudicial effect.
142
What is the definition of "Title"?
A legal right to the property.
143
What title can a person pass on?
As per Section 149 Contract and Commercial law, a person cannot give better title to property than they own.
e.g. a seller who has no rights of ownership to the goods purports to pass title to a buyer, the buyer can receive no greater interest in the goods than the seller had.
144
What is the difference between theft and deceit in regard to title?
A thief never gets title. However, a person, who by deception or other deceit, induces another to hand over the goods (and title), title will pass.
145
What is voidable title?
A title obtained by deception, fraud, duress, or misrepresentation is called 'voidable title' and means that the title can be voided by the sellar.
146
What does it mean if the defrauder has voidable title?
That until the title is voided, they can confer good title on to anyone who acquires the goods from him or her in good faith and for value
147
As under Section 151 Contract and commercial law - what is the consequences of sale under voidable title?
If the seller has voidable title and sells the goods before the title has been voided then the buyer of those goods acquires a good title to the goods if the buyer buys the goods in good faith and without notice of the sellers defect of title.
148
What is an example of obtaining good title?
The complainant believes an altered gift card given to him to be good and valuable, so he is happy to hand over not only possession of the goods but title to them as well. The result is that the offender obtains title, albeit a voidable title.
149
What is a scenario that outlines a genuine sale?
B buys a car from A and pays cash for it
In this situation, B gains possession of the car and title to it
A intends to pass his title to B
150
What is a scenario that outlines Unlawful taking / theft?
B steals or unlawfully takes a car from A
In this situation, B gains possession of the car but not the title, as A did not intend to pass the title on
A thief never gains title to the goods they steal
151
What is a scenario that outlines Civil action?
A agrees to sell a vehicle to B
A has good title to the vehicle and passes title to B
B agrees to pay A $2000 in 4 instalments but only pays 1 instalment of $500.
A can bring a civil claim against B as they are an "unpaid seller"
Bs title is voidable by civil action
If B on sold the vehicle to C (who has no awareness of the circumstances) then C receives good title.
To void B's title (prior to onselling) A can bring a claim to the small claims tribunal
152
What is a scenario that outlines Obtained by Deception?
B meets with A with the intention of viewing As vehicle for sale.
B is a fraudster and has no intention or means to pay the asking price of $15 000
B agrees to buy the vehicle and provides false details about himself and leaves with the vehicle.
B makes no further contact and keeps the vehicle.
B obtains possession and title because A intended to pass over title.
B's title can be regarded as voidable as it has been obtained by deception
B has title until it is voided by A.
If B sells it before it is voided - he confers good title to the seller
153
If a person is convicted of fraud after he has conferred good title to another person, can the goods be reclaimed by the initial owner?
No, the buyer does not lose title to the property that they obtained good title to.
154
When is receiving not an offence?
As per Section 246 Crimes Act 1961
Receiving is not an offence when the property stolen or obtained has been returned to the owner or
legal title has been acquired by any other person
155
What is the exception to the rule of "You cannot get a better title than the seller"?
If the original purchaser (deception) subsequently sells the goods to an innocent buyer then the title is made legal.
156
What is the effect of Section 246 being receiving after restoration to the owner?
Is that a person, who in certain circumstances may be a receiver, cannot be convicted of receiving from a fraudulent offender who has a voidable title to goods dishonestly obtained by means of a deception.
157
What if title has been voided by the complainant?
This will leave the fraudulent offender with mere possession only and the subsequent receiving of those goods will be an offence.
158
Why must you exercise care when charging someone with receiving after voidable title has been voided by the complainant?
You must consider whether the receiver is liable as a party to the false representation or obtaining by deception instead. The receiver can be charged only if they received it in bad faith or knew of the defect in title.
159
How is hire purchasing effected by title and receiving?
Where goods are purchased on hire purchase, title is not obtained until the full amount is paid.
Therefore, if a deposit is made on a hire purchase by A through false representation, then possession only is obtained. If A sells it to B with B having guilty knowledge, then B can be guilty of the offence of Receiving, as B has no title.
160
There may be an offence under S220 where the defendant has intentionally:
Where the defendant:
- Failed to account to any other person for;
1. property received
2. proceeds of property received
- Dealt with;
3. property received by the defendant otherwise in accordance with the requirement of some other person
4. Proceeds of the property received by the defendant otherwise in accordance with the requirement of some other person
161
An offence under Section 220 of the Crimes Act requires proof of two core elements, what are they?
(a) That he or she have received property on terms or in circumstances which, to the defendants knowledge, affect what the defendant may do with the property or its proceeds or require the defendant to act in accordance with the requirements of another person, and
(b) That the defendant intentionally departed from the relevant obligation
162
What is the first mental element of an offence under S220?
The defendant must know that the acquisition of the property was on terms or requirements which require the defendant to account for the property or its proceeds, or to deal with the property or its proceeds in accordance with the direction of another person.
163
When will the first mental element of an offence under S220 be met?
If the defendant is aware there are terms of some kind affecting his or her freedom of action; it should not be necessary that the precise details of those obligations be known.
164
What is the second mental element of an offence under S220?
The defendant must have intentionally departed from his or her obligations.
165
What is said in R v Sizemore in regards to the mental elements of an offence under S220?
That there is no requirement that the accused be shown to have acted dishonestly or without claim of right. The mere fact of intentionally failing to perform ones obligations is sufficient for liability.
166
What is a test of whether something is to be included as a document?
A test of a document may be whether the writing conveys the same message as the spoken word in the minds of all people able to read it.
167
For forgery, does the document have to be used?
There is no requirement that the defendant use the document, as long as the intention to do so is present. The defendant must know that the document is false.
168
What is a false document?
Essentially, a false document must lie about itself. However, just because a lie is put in writing does not mean that the document on which it is written is a forgery. The document itself must lie about itself, or intend to convey a lie in cases where it has been written by someone intending to pass it off as having been written by someone else. These various forms of lies make a document false.
169
What is an example of a false document?
A print of a forged Goldie painting is not a forgery - only the original forgery claiming to be an unforged original constitutes a forgery.
170
How can you make a false document?
You can make a false document by making any material alteration to a genuine document.
171
To make a false document involves alteration to a genuine document, what may these alterations involve?
- Additions
- Insertions
- Deletions
- Obliterations
- Erasures
- Removal of material or otherwise
172
When is an alteration a material alteration?
It is a material alteration if it increases the value or negotiability of a document or instrument. A false document can be made by making material alterations to a genuine document.
173
Is a photocopy a false document?
A photocopy of a false document claims merely to be a copy and therefore, does not tell a lie about itself.
174
When is forgery complete?
You do not need to intend that a particular person will be affected by the forged document. Forgery is complete as soon as the document is made with knowledge and intent
175
What must the prosecution prove for forgery?
While intent to deceive is not an essential element of forgery. Nonetheless, the prosecution must prove that, at the time of the alleged act, the defendant, knowing that the document was false, had intended either:
- To use the false document to obtain or
- That the false document be used or acted on as genuine
176
What is not sufficient in relation to forgery?
It is not enough that the document is false and that its maker knows it is false. It must also be proved that the offender intended to deceive by means of that which is false.
177
Is there a financial advantage to the charge of forgery?
Subsection (2) applies where there is no intention to obtain any financial or other specified advantage. The defendant must have intended that the document be used to mislead.
178
Under Section 256(3) for forgery what is there no requirement of?
There is no requirement that the document be put to its intended use.
179
Under Section 256(4) for forgery when may an offence have been completed?
The forgery may be completed and the offence committed even though the document is not completed or is not in a legally effective form.
180
When may it be hard to prove forgery?
If a document is both incomplete and obviously erroneous, it may be hard to prove an intention that the incomplete document pass as genuine.
181
What is an example of forgery?
- Writing an examination paper in the name of another person who is required to sit the exam
- Pre-dating a deed to give it priority over another
- Forging letters of recommendation for inclusion in a CV that are necessary to obtain a position
- Falsely completing a statement of service on a witness summons.
182
Under Section 257 (2) CA 61 can a document made outside NZ be included?
A document made or altered outside NZ in a manner that would have amounted to forgery if the making or alteration had been done in NZ shall be deemed to be a forged document.
183
What knowledge must you prove the defendant had for a charge against S257(1) being "Using forged documents"?
You must prove that the defendant knew the document was a forgery the time of the physical act of using, dealing with or acting upon it.
184
To prove that the document is a forgery, you must prove that:
- the document was false
- the 'user' knew the the document had been 'made' with the knowledge and intent required under S256 of the Crimes Act 1961
185
When is an offence against Section 258(1), being altering etc or reproducing documents complete?
It is comple as soon as the alteration or document is made with the relevant intent, although the offender may not have intended that any particular person should use or act upon the document OR act upon the basis of the absence of the document concealed or destroyed OR be induced to do or refrain from doing anything
186
What is the definition of "alteration" ?
Alteration is not defined within this act but it is suggested that it carries its normal meaning - that a document is altered if its changed in some manner.
187
What was the word "conceal" held to include?
- The actual hiding of a document
- the denial of its existence and
- the withholding of it in the face of a positive duty to produce it
188
What is the definition of "destruction"?
For the purposes of this section it should be taken to mean "to end the existence of"
189
What is the definition of "Reproduction" ?
For the purposes of this section, it should be taken to mean "Producing a copy or representation of or made in imitation"
190
How may a defendant "cause" a document to be altered, concealed or destroyed?
Either:
- Through arranging for the necessary actions by another person OR
- By the use of a computer program or other device which will operate to alter, conceal or destroy the document.
191
What are the two alternative mental elements of an offence against S258(1) Crimes Act 1961 being altering etc or reproducing documents?
The first: An intention to obtain by deception any property, privilege, service, pecuniary advantage, benefit or valuable consideration.
The second: An intention to cause loss
192
What is there no requirement of for a charge against S258(1) being altering etc or reproducing documents and what does this mean?
There is no requirement that the loss is intended to be inflicted by deception. Thus the simple destruction of a document so as to deprive another of something of value might fall within the section. (It could also amount to a theft)
193
What does the difference between the offence of forgery and one of altering or reproducing a document rest with?
It rests in the varying definitions of "document" and "intent"
194
What are the differences in the definition of a document between the offence of forgery and one of altering or reproducing a document?
Any document can be altered or reproduced in the charge of altering, concealing destroying or reproducing a document however in the charge of forgery the document must be a false document.
195
What are the differences in the definition of intent between the offence of forgery and one of altering or reproducing a document?
With forgery, an intent to deceive only is required NOT an intent to obtain by deception.
In the alternate offence of altering, concealing, destroying or reproducing a document, you must prove that the offender intended to obtain by deception.
196
What must you note in regards to Section 259 CA 61 being Using altered or reproduced document with intent to deceive?
It does not matter that the document was made or altered outside NZ if it is being used, dealt with, or acted upon within NZ.
197
What conduct is required for a charge under S259 CA 61 Using altered or reproduced document with intent to deceive?
The conduct element of the offence is simple in that it only requires that the defendant have used, dealt with, or acted on the document or caused any person to us, deal with or act upon it.
198
What must the prosecution prove in a charge of S259 CA 61 being Using altered or reproduced document with intent to deceive?
They must prove that the document in question had previously been altered with intent to deceive, though it would not seem to be a need to identify the person or persons who had so altered it.
199
For a charge of S259 CA 61 being Using altered or reproduced document with intent to deceive what are the mental elements that need to be satisfied?
- The defendant must know the relevant matters relating to the document in question, that is that the document had been altered with intent to deceive
- 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 etc.
- There must be an intention to acquire or retain the property etc or to cause loss "by deception".
200
What is the definition of "access" as defined in Section 248 Crimes Act 1961?
Access is widely defined and covers almost all interactions with a computer system. Such as using a computer at work and more remote forms of access such as viewing a website or using a virus.
201
What does "access" require as defined in Section 248 Crimes Act 1961?
Access requires that 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.
202
What is the definition of "computer system" as defined in Section 248 Crimes Act 1961?
It is also widely defined to include 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 with the internet with the potential of connection to millions of networked computers.
203
Is the term "computer" defined?
No, which doesn't pose a problem when it is a desktop computer, laptop or server but as technology advances, the courts will consider the ordinary usage of the device at the time of the offence.
204
What is the distinction between S249(1) and S249(2) being accessing computer systems for dishonest purposes?
The distinction between these two offences is reflected in the words "thereby" and "obtains".
(1) is directed at the situation where a person has actually accessed a computer system, obtains the offending material or causes loss whereas (2) is directed at someone who actually accesses the computer system with that intent regardless of the result.
205
In R v Le Roy what was held in regards to a benefit (in regards S249 to accessing a computer system for dishonest purpose)?
The court in this matter said that it bore its natural meaning of any advantage and was not limited to financial or pecuniary advantage.
It further held that requiring the benefit to be obtained dishonestly was an unsustainably narrow approach to an interpretation in regards to S249 and that the dishonesty related to the conduct in obtaining access to a computer system
206
What did the court in R v Billinsley note in regard to a loss for section 249 being accessing a computer system for dishonest purpose?
It noted that the person who suffers loss does not have to be aware of the loss at the time of the offence.
207
What is the distinction between S250(1) and S250(2) CA 61 being Damaging or interfering with a computer system?
Section 240(1) criminalises the destruction, damaging or altering of a computer system that the defendant knows or ought to know would endanger life whereas:
S240(2) makes it an offence to damage etc any computer system and adds the requirement that the defendant must act without authority with the knowledge that they are not authorised or are reckless whether they are authorised AND
S240(2)(b) is directed at instances where the defendant has so arranged matters that the victims own operation of his or her computer system, or the acts of third parties, will cause damage to the victims computer system.
