Deception Module - Progress Tests Flashcards by Nicole Stratford

What are three examples of valuable consideration?

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

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What are the 4 components regarding the nature of belief required?

The belief must be a belief in a proprietary or possessory right in property
The belief must be about rights to the ‘property in relation to which the offence is alleged to have been committed’
The belief must be held at the time of the conduct alleged to constitute the offence
The belief must be actually held by the defendant

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What three things must be proven regarding deception?

There was an intent to deceive
There was a representation by the defendant
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

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What is an example of ‘orally’?

Verbally claiming to own goods that are in fact subject to a hire purchase agreement. (R v Caslin).

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What is an example of ‘by conduct’?

Representing oneself to be a collector for charity by appearing to be carrying an official collection bag. (R v Barnard).

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What is an example of ‘documentary’?

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.

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What is continuing effect?

In many cases a representation by words or conduct may have a continuing effect e.g. entering a restaurant and ordering dinner (normal process and implies paying) but decides to avoid payment and the continuing representation becomes false.

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As a general rule, silence or non-disclosure will not be regarded as a representation. What is an example of an exception to this?

Label swapping (Police v Dronjak).

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What is a special interest lien?

In general terms, a lien is a right over another’s property to protect a debt charged on that property e.g. a mechanic placing a lien over a vehicle until payment of the debt is made.

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What are 4 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

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What is a defence to debt or liability within s240(1)(b)?

The debt or liability must be legally enforceable. This means that if the contract is void or illegal, there will be no offence.

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What are 3 examples of situations where ‘credit’ may be obtained?

Obtaining money on loan
Extending existing overdraft facilities
Renting or leasing a dwelling

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When gaining proof of inducement, what 2 things must be proven on the part of the victim?

That the false representation was believed, and

- That it was the consequence of that belief that the victim parted with his or her money

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What is required to be proved under s240(1)(d)?

The loss was caused by a deception
It was reasonably foreseeable some more than trivial loss would occur, but
Need not prove the loss was intentionally caused

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What is the punishment of obtaining by deception or causing loss by deception under s241?

(a) Exceeds $1,000 – 7 years
(b) Exceeds $500 but does not exceed $1,000 – 1 year
(c) Does not exceed $500 – 3 months

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What is outlined in s43(1) of the Evidence Act 2006?

Propensity evidence offered by prosecution about defendants.
The prosecution may offer propensity evidence about a defendant in a criminal proceeding 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 defendant.

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Under s43(2), what MUST the Judge consider when assessing the probative value of propensity evidence?

The nature of the issue in dispute.

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Under s 43(3), what MAY the Judge consider when assessing the probative value of propensity evidence?

The frequency with which the acts, omissions, events, or circumstances which are the subject of the evidence have occurred
The connection in time OR the extent of the similarity between the AOEC which are the subject of the evidence and the AOEC which constitute the offence for which the defendant is being tried
The number of persons making allegations against the defendant that are the same as, or are similar to, the subject of the offence for which the defendant is being tried
Whether the allegations described above may be the result of collusion or suggestibility
The extent to which the AOEC which are the subject of the evidence and the AOEC which constitute the offence for which the defendant is being tried are unusual.

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Under s43(4), what MUST the Judge consider when assessing the prejudicial effect of evidence on the defendant?

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

What does Section 149, Contract and Commercial Law Act 2017 outline?

Sale by person who is not owner.

(1) This section applies if goods are sold by a person who –
(a) Is not the owner of the goods; and
(b) Does not sell the goods under the authority or with the consent of the owner

(2) The buyer acquires no better title to the goods than the seller had, unless the owner of the goods is by the owner’s conduct precluded from denying the seller’s authority to sell.

What is the difference between theft and obtaining by deceit?

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.

What does Section 151, Contract and Commercial Law Act 2017 outline?

Sale under voidable title.

(1) This section applies if –
(a) A seller of goods has a voidable title to the goods; but
(b) The seller’s title has not become void at the time of the sale.

(2) The buyer acquires a good title to the goods if the buyer buys the goods in good faith and without notice of the seller’s defect of title.

What does Section 246(4), Crimes Act 1961 outline?

Receiving after restoration to owner.

If any property stolen or obtained by any other imprisonable offence has been returned to the owner; or legal title to any such property has been acquired by any other person, a subsequent receiving of it is not an offence, even though the receiver may know that the property had previously been stolen or obtained by any other imprisonable offence.

When considering a charge under s220, what proof is required?

That he or she have received property on terms or in circumstances which, to the defendant’s 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
That the defendant intentionally departed from the relevant obligation

When is forgery complete?

As soon as the document is made with the intent described in subsection (1) or with the knowledge and intent described in subsection (2). Forgery is complete even though the false document may be incomplete.

What are the 6 components where material might be altered?

- additions - insertions - deletions - obliterations - erasures - removal of material or otherwise

What are 4 examples of forgery?

1. Writing an examination paper in the name of another person who is required to sit the exam 2. Pre-dating a deed to give it priority over another 3. Forging letters of recommendation for inclusion in a CV that are necessary to obtain a position 4. Falsely completing a statement of service on a witness summons

What 2 components do you need to prove use of a forged document?

- The defendant knew it was false | - The ‘user’ knew that the document had been ‘made’ with the knowledge and intent required under s256 CA61.

When is the offence of altering, concealing, destroying or reproducing documents with intent to deceive complete?

As soon as the alteration or document is made with the intent referred to in that subsection, although the offender may not have intended that any particular person should – (a) Use or act upon the document altered or made; or (b) Act on the basis of the absence of the document concealed or destroyed; or (c) Be induced to do or refrain from doing anything

What is the difference between forgery and altering or reproducing a document?

With forgery, an intent to deceive only is required, whereas for altering, concealing, destroying or reproducing a document an intent to obtain by deception is required. With forgery, the document must be a ‘false document’ as defined, whereas for altering, concealing, destroying or reproducing, it can be any document.

Representations can be made in three ways, or a combination of three ways. What are these?

Orally, documentary, or by conduct.

Under what circumstances does a person keep title of goods if they have fraudulently induced another to hand over goods with the intention that title will pass?

A person can keep title of goods fraudulently when: Section 246(4) is an exception to the rule that you cannot get a better title than the seller. If the original purchaser subsequently sells the goods to an innocent buyer (one who is not aware of the defect in title) then the title has been made legal.

How can you avoid title?

Title can be avoided by: 1. Communication to B. The taking of all possible steps to bring it to B’s notice, e.g. by writing a letter, text, phone call etc. 2. By advising the police that the vehicle was obtained by fraud

What is the difference between s249(1) and s249(2)?

Section 249(1) is where a person has actually accessed a computer system and obtains the offending material or causes loss, whereas Section 249(2) is directed at someone who actually accesses the computer system with that intent regardless of the result.

Explain what actions would involve accessing a computer system.

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 communication may pass.

What are the steps when investigating cheque fraud, credit card fraud, and company fraud?

1. Interview the complainant - Details of the offender - Account details - Details used to open accounts - Obtain a sample of the suspect’s handwriting - CCTV photographs of the offender 2. Ongoing enquiries - Fingerprints may be an option 3. Locate the offender 4. Arrest - SW for house and recover evidence of offending - Interview - Obtain handwriting specimen 5. Prosecution

When it comes to company deception, what does Category A offending involve?

Large-scale thefts and other dishonesty offences against employers by employees e.g. 228, 220, 258, 259, 249, 256, false accounting, obtaining ownership, possession or control by deception

When it comes to company deception, what does Category B offending involve?

Dishonesty offences committed against financial institutions by people outside the institution obtaining money from it through deception. Category B also includes GST deception e.g. false statement by promoter, 228, 249, 256, false accounting.

When it comes to company deception, what does Category C offending involve?

Commercial deception committed against the public by people who, either as individuals or through the guise of a company, entice people to invest money e.g. false statement by promoter, obtaining ownership, possession or control by deception, 240 (obtaining credit).

When it comes to company deception, what does Category D offending involve?

Dishonesty offences committed by professional people in a position of trust, such as solicitors and accountants, against their clients e.g. 220, 228, 257

What are the 6 external organisations available to assist company fraud?

- Police accountants and legal officers - Ministry of Business, Innovation and Employment (MBIE) - Commerce Commission - Financial Markets Authority - NZ Customs - Liquidators and receivers

What assistance can be obtained by police accountants and legal officers?

Give you advice and, if necessary, to assist personally. Legal Section can be of particular help in preparing production orders, search warrants and charges.

What assistance can be obtained by MBIE?

Possible sources of information are: - Registrar of Companies - Companies Office - Official assignee - Insolvency Services

What assistance can be obtained by Commerce Commission?

The Commerce Commission can assist in matters relating to: - The Fair Trading Act 1986 - Pyramid selling

What assistance can be obtained by Financial Markets Authority?

Can assist in matters relating to the Financial Markets Authority Act 2011 and the issuing of prospectuses.

What assistance can be obtained by NZ Customs?

Can assist in matters involving international travel and CAPPS alerts.

What assistance can be obtained by liquidators and receivers?

These administer companies that are in liquidation or receivership. They are usually accountants.