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Deception > Short Answer Questions > Flashcards

Short Answer Questions Flashcards

1
Q

What is Representation?

A

About a past or present fact, about a future event, or about an 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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2
Q

Define False Representation

A

The person making the representation (whether oral, documentary or conduct) intends to deceive any other person.

  • The representation must be false.
  • The defendant must know & believe
    that it is false or be reckless whether
    it is false.
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3
Q

What must the Prosecution prove in regards to False Representation?

A
  • There MUST be an intention to deceive
  • There was representation made by the defendant
  • The representation was false, and the defendant knew it was false, or was reckless to the fact that it was false.
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4
Q

What is the difference between Theft and Deception?

A

To do with title.
Deception is when something is handed over (even when the title is voided) .
Theft the title is never handed over, and the offender only gains possession.

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5
Q

What do you need to prove with Forgery s256(1)?

A

The Suspect:
- Made a false document and,
- With intent to use it to obtain property, pecuniary advantage, benefit etc.

Example : writing an exam paper in the name of another person

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6
Q

Define Service

A

Service is limited to financial & economical value. It excludes benefits & privledges.

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7
Q

Hayes v R - pecuniary advantage

A

Anything that enhances the accused financial position. It is the enhancement which constitutes the element of advantage.

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8
Q

What do you need to prove for Forgery s256(2)?

A

The Suspect:
- Made a false document
- Knowing it to be false
- With intent that in anyway be used, or acted upon, as genuine
- Essentially, a document must lie about itself or intend to convey a lie

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9
Q

When a person alters a document what might they do?

A

Additions, insertions, deletions, obliterations, erasures, removal, or material

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10
Q

When is an alteration, a material alteration?

A

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

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11
Q

When can goods be said to have been “obtained” by the defendant?

A

Goods are obtained when a person obtains or retains for himself, herself or some other person

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12
Q

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

A

Orally, written or by conduct

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13
Q

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

A

S246(4) – if the OG purchaser sells goods to an innocent buyer (whose not aware of defect in title) then title has been made legal

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14
Q

How can you avoid title?

A

Make attempts to contact the defendant, report the matter to the Police, post it on an open forum like Facebook

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15
Q

When is Forgery complete?

A

As soon as the Document is made with the intent described in subsection (1) and (2)
i.e. (1) made a false document, with intention to use it to obtain property
(2) made a document, knowing it was false, with intention to use it to obtain any property, document MUST lie about itself.

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16
Q

Define ‘Access’ under s248

A

Access in relation to ANY computer system, means instruct, communicate with, store data, receive data from, or otherwise make use of any of the resources of the computer system

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17
Q

Explain what actions would involve accessing a computer system

A

Access requires that a person instructing or communicating with the computer system has some form of connection with the computer system through which instructions or communications may pass.

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18
Q

For a charge of accessing a computer system for dishonest purposes under s249(2) to be successful, what intents must be proved?

A

The suspect:
- Obtained any property, privilege, service, benefit, pecuniary advantage, or valuable consideration OR
- Caused loss to any other person

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19
Q

Define ‘Computer System’

A

Includes all related input, output, processing, storage, software, or communication facilities, and stored data. It can encompass one computer or a network of computer systems

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20
Q

Explain the difference between 249(1) and 249(2) C.A. 1961

A

The difference is reflected in the words ‘thereby’ and ‘obtains’.
- S249(1) is about someone who accessed a computer system, obtained offending material, or caused loss.
- S249(2) is about someone who accessed a computer system with that intent regardless of the result.

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21
Q

Describe a situation when a person may not be present at a computer to access it:

A

Someone can access a computer by using software that remotely infects computers, they may use the internet to connect

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22
Q

Define Case Law - Hayes v R (Pecuniary Advantage):

A

Anything that enhances the accused financial position. It is the enhancement which constitutes the element of advantage

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23
Q

Define Case Law - Hayes v R (Dishonesty)

A

The question is whether the belief was actually held, not whether the belief was reasonable. However reasonableness may be relevant as evidence on whether it was actually held.

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24
Q

Define Case Law - Hayes v R (Uses or Attempts to Use)

A

An unsuccesful attempt at using a document is just as much as a successful one. Because the use does not have to be successful it may be difficult to draw a clear line between use and attempted.

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25
Q

What was the outcome in Court for R v Billingsley?

A

The court noted that the person who suffers loss does not have to be aware of the loss at the time of the offence.

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26
Q

What is the Section, Act and Penalty for Damaging or Interfering with a Computer System? (1) and (2)

A

Section 250(1) C.A. 1961 - 10 Years

Section 250(2) C.A. 1961 - 7 Years

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27
Q

What is the distinction between s250(1) and s250(2)?

A

S250(1) involves Danger to Life (more serious forms of arson, wilful damage, endangering transport) criminalises the destruction, damaging, or altering of a computer system that the defendant knows or ought to know would endanger life where as:

S250(2) involves the defendant damaging any computer system, without authority with the knowledge they are not authorised or reckless whether they are authorised.

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28
Q

What is S252 of Crimes Act 1961?

A

Accessing Computer System without authorisation

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29
Q

What are the elements of S252 (1) C.A. 1961?

A

Intentionally Accesses
Directly or Indirectly
Any Computer System
Without Authorisation Or being reckless as to whether or not he or she is authorised to access that computer system

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30
Q

What does it mean by ‘Without Authorisation’?

A

Requires the defendant to have INTENTIONALLY gained access directly or indirectly, to a computer system where access to that system is not authorised.

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31
Q

What was found in the Case Law ‘R v Morley’ in relation to Deception?

A

An intention to deceive requires purposeful intent at the time the deception is practised.

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32
Q

What was found in the Case law ‘Cameron v R’?

A

The defendant was RECKLESS if they knew:
- His or her actions would bring about the proscribed result.
- That the circumstances existed
- That the actions were unreasonable given the risk

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33
Q

What was found in the Case Law ‘R v Morley’ in relation to Representation?

A

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

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34
Q

Explain what it means by ‘Continuing Effect’ and provide an example

A

Words and Conduct may have a ‘continuing effect’. When entering a restaurant and ordering dinner. This represents that the dinner will follow normal practise and pay for dinner at the end of the meal. If the diner decides to avoid payment (i.e. dine and dash) the continuing representation will become false, and obtaining food will come under s240.

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35
Q

Explain what it means by ‘Silence’ and provide an example

A

As a general rule, silence or ‘non disclosure’ will not be regarded as representation but there are exceptions.
Example: When an incorrect understand is implied from a course of dealing and the defendant has failed to negate that incorrect understanding.

i.e. one example is label swapping

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36
Q

How can knowledge be established?

A
  1. An admission
  2. Implication from the circumstances surrounding the event
  3. Propensity evidence

At times wilful blindness can be equated to knowledge.

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37
Q

Define ‘Material Particular’

A

An important, essential, or relevant detail or item

38
Q

What was found in the case law ‘R v Mallet’

A

A matter will be a ‘material particular’ if it is something important or something that matters

39
Q

What was found in the case law ‘R v Cox’?

A

Relates to Possession.
Possession has TWO elements.
- Physical
- Mental

40
Q

In relation to R v Cox, what is it meant by a ‘Physical’ Element?

A

Physical is actual custody or control

41
Q

In relation to R v Cox, what is it meant by a ‘Mental’ Element?

A

Mental is knowledge of possession and an intention to exercise possesion

42
Q

Explain ‘Special Interest Lien’:

A

Is a right over another property to protect a debt charged on that property.

If a person by any deception makes out that this lien is paid, and takes the property, then they have obtained by deception

43
Q

When do you not have to pay a debt or liability?

A

If it is not legally enforceable. If the contract is void or illegal there will be no offence

44
Q

What was found in the Case Law ‘Fisher v Raven’?

A

Credit refers to an obligation on the debtor to pay or repay, and given for them to do so by the creditor. Credit does not extend to an obligation to supply service or goods.

45
Q

What was found in the Case Law R v Mckay?

A

The credit had been obtained but at that time the accused did not possess an intent to deceive.

46
Q

Delay or Non-Payment of Debt:

A

Intent to deceive is not to disclose merely because there is:
- Delay or Non-Payment OR
- An inability to perform a bone fide intention

For an example: If you incur a debt and then are unable to pay through some unforeseen circumstances, it is not deception

47
Q

Hire purchase and theft by conversion

A

When the goods are obtained by a false representation, deception is committed.

However if you later sell the goods to another person, the offender commits theft by conversions. This is because the offender NEVER obtains the title for goods fraudulently obtained in hire purchase.

48
Q

Proof of Inducement
Section 240(1)(c)

A

The inducement should be proved wherever possible by direct evidence from the person alleged to have been defrauded.

The victim would be asked questions to prove:
1. That the representation was believed AND
2. That it was the consequence of that belief that the victim parted with his or her money

49
Q

What was found in the case law R v Laverty (inducement)?

A

It is necessary for the Prosecution to prove that the person parting with the property was induced to do so by the false representation made.

50
Q

What may the Judge consider when assessing probative value? (propensity evidence)

A

S43(3)(a)-(f)
a) The frequency with which the acts, omissions, events or circumstances have happened which is the propensity evidence
b) The connection in time between acts, omissions, events or circumstances which is the propensity evidence and the defendants current offending
c) The similarity between the propensity evidence and the defendants current offending
d) The number of persons making allegations against the defendant that are the same or similar to the defendants current offending
e) Whether the allegations of d) may be result of conclusion or suggestibility
f) The extent to which the propensity evidence and the defendants current offending are unusual

51
Q

Define ‘Title’

A

A right or claim to the ownership of property.

52
Q

When is a title “voidable title”?

A

When title is obtained by:
- Fraud
- Deception
- Duress
- Misrepresentation

53
Q

What two elements do you need to prove for s220? (theft by person in a special relationship)

A

That the defendant had an obligation to act in certain way with handling the property or act in accordance with the requirements of another person AND
They intentionally departed from that obligation

54
Q

What are the elements of Forgery s256(1) C.A. 1961?

A

Makes a false document
With the intention of using it to obtain any:
- Property OR
- Privilege OR
- Service OR
- Benefit OR
- Pecuniary Advantage OR
- Valuable Consideration

55
Q

What are the elements of Using Forged Document S257(1) C.A. 1961?

A
  • Knowing a Document to be forged
    (a) Uses the document to obtain any
  • Property
  • Privilege
  • Service
  • Benefit
  • Pecuniary Advantage
  • Valuable Consideration
    (b) Uses, deals with or acts upon the document as if it were genuine
    (c) Causes any another person to use, deal with or act upon as if it were genuine
56
Q

What are the elements of Altering or Reproducing Documents S258(1) C.A. 1961?

A
  • With intent to obtain by deception any:
  • Property
  • Privilege
  • Service
  • Benefit
  • Pecuniary Advantage
  • Valuable Consideration
    OR cause loss to any person
  • (a) Alters, Conceals, or destroys any document or causes it to be that
    -(b) makes a document or causes a document to be made, that is, in whole or in part, a reproduction of any other document.
57
Q

What is the difference between Forgery and Altering?

A

The difference between Forgery and Altering/Reproducing rest in the varying definitions of “Document” and “Intent”.

With Forgery, an intent to deceive is required, not an intent to obtain by Deception.

With Altering a Document you MUST prove the offender intended to obtain by deception.

Any document can be altered but for fogery the document must be a “False Document”.

58
Q

What are the Elements of Section 259(1) of C.A. 1961?

A
  • Knowing a document to have been made, or altered in a manner with intent referred to in s258
  • With any intent to obtain any:
  • Property
  • Privilege
  • Service
  • Benefit
  • Pecuniary Advantage
  • Valuable Consideration
    (B) Uses, deals with, or acts upon the document
    (C) Causes any other person to use, deal with the document.
59
Q

What are the SEVEN steps for investigating Deception offences?

A
  1. Interview complainant, find out ID used by the offender, description & property obtained
  2. Contact accounts manager and find out (the following)
  3. When an account has been opened with fictious details (find out)
  4. Obtain sample of suspects handwriting from bank documentation
  5. When cheques are dishonoured through lack of funds, interview account holder and obtain a statement that includes:
  6. Contact other stations that may hold relates complaints and info. Must be dealt with by one station
  7. Find out if there is CCTV
60
Q

When investigating Deception, explain Step 2 (Contact Account Managers & Find out) What?

A
  • Account holders fill name, occupation, private & work address & phone number
  • The date the account was opened
  • Account history & how it was opened
  • How and by whom a loss was reported.
  • The serial numbers of any missing cheques
  • Whether the account holder is suspected of issuing valueless cheques
61
Q

When investigating Deception, explain Step 3 (When an account has been opened with fictitious details) What?

A
  • The account number & date it was opened
  • The nature and amount of the first deposit
  • Details of any other deposits
  • Descriptions of suspects & their associates
  • Name & Address of employee who opened the account & any other employees who can ID the suspect. Interview these employees and obtain FWS.
  • The serial numbers of cheques supplied
  • Details of the dishonoured cheques & the people of firms defrauded.
62
Q

When investigating Deception, explain Step 5 (Cheques are dishonoured through lack of funds) What?

A
  • The suspects full name, address, occupation, and age
  • The date the account was opened
  • The nature & amount of first deposit
  • Any arrangements for regular deposits such as directing of wages, and any dates/amounts of irregular ones
  • Details of any overdraft arrangement
  • General pattern of how account is operated
  • The state of account at the time cheques were issued
  • Whether the suspect was aware of the state of the account
  • Details of dishonoured cheques and victims
  • Amount of savings in any accounts.
63
Q

Who can Police get information from in regards to Fraud matters?

A
  • Police accounts & legal officers
  • Ministry of Business, Innovation, and Employment (Registrar of Companies, Companies Office, Official assignee, Insolvency Services)
  • Commerce Commission
  • Financial Markets Authority
  • NZ Customs
  • Liquidators & Receivers
64
Q

What is classified as Category A Company Fraud?

A

Large scale thefts, and other dishonesty offences against employers by employees. Usually people such as accountants and managers who use their position to ‘f**k’ with the company

65
Q

What is classified as Category B Company Fraud?

A

Dishonesty Offences committed against a financial institutions by people outside of the institution obtaining money from it through deception. Also includes GST deception against the inland revenue by businesses that make false GST returns.

In latter case, offender may be:
- An employee who covers misappropriation of money from their employer by obtaining fradulent GST refunds to ‘replace’ the money the employee has stolen OR the operator of the business

66
Q

What is classified as Category C Company Fraud?

A

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

67
Q

What is Section 228(1)(a) C.A. 1961

A

If they steal or take a document with the intent - 228(1)(a)

68
Q

What is Section 228(1)(b) C.A. 1961

A

If they use the document - 228(1)(b)

69
Q

What is Section 240(1)(a) C.A. 1961

A

If they commit deception and get something physical or a discount or something - 240(1)(a)

70
Q

What is Section 240(1)(b) C.A. 1961

A

If they commit deception and get something that they should be repaying - 240(1)(b)

71
Q

What is Section 240(1)(d) C.A. 1961

A

If they don’t get anything - s240(1)(d)

72
Q

What is classified as Category D Company Fraud?

A

Dishonesty offences committed by professional people in a position of trust, such as solicitors, and accounts usually against their clients.

73
Q

SFO (Serious Fraud Office) investigates serious or complex fraud. When must it be notified?

A
  • All fraud complaints with an actual or potential loss in excess of 2mil
  • All fraud complaints where the facts, law or evidence is of great complexity. Such complaints
    could include international transactions, computer manipulations or other complex methods
    of commission. However if the international transactions and computer manipulations are
    straight forward then no
  • Any fraud complaint of great interest or concern, ie involving a public figure
  • The office will determine whether the complaint is serious or complex enough
74
Q

Who can make notifications to the SFO?

A

Notifications must be made by Police employees who have been authorised by the District
Commander

75
Q

How can the SFO be contacted?

A

Office can be contacted by phone, or faxing, send the file with a written notification

76
Q

How long does the SFO have to decide whether they’re in?

A

5 days

77
Q

What do Police and the Serious Fraud Office have to agree on?

A

Who will investigate the matter

78
Q

When SFO investigates and they decide there is enough evidence to prosecute what must they do?

A
  1. Contact the CIB and provide them with a written report that outlines the evidential sufficiency required to make an arrest.
  2. They must justify why the person is being arrested as opposed to summonsed.
79
Q

What can SFO do?

A

Prepare a Warrant in Lieu of Summons

80
Q

What is Propensity evidence?

A

It shows a person has the ability to act in a certain way or to have a particular state of mind may be admissible in a prosecution for causing a loss by deception. It may also be used to disprove a defence of mistake or innocent intention.

81
Q

Does ‘Title’ remain with the seller if the buyer has not yet paid the full amount?

A

Yes. The title remains with the seller until the buyer has full paid off the debt.

82
Q

Person A is selling a vehicle.
Person B is interested. Person A honestly believes Person B is a genuine buyer. Person B has ulterior motives. Person B convinces PersonA that they will pay them the full amount of the car the next day. Person B does not. Does Person B gain title, and is it possible for the tilte to be voidable?

A

Obtains by Deception. Person B has the title and possession as Person A was going to transfer the title over.

Tilte can be voided as Person B obtained the tilte by deception from Person A

83
Q

If an offender obtains goods through ‘hire’ by false representation, deception is committed. What would the offence be if the offender later sells the hired goods?

A

Theft by Conversion

84
Q

What is a False Document?

A

It is a document that must lie about itself, or intend to convey a lie on itself (i.e. writing something & intending on passing it off as someone else).

85
Q

Name some ‘Alterations’ that could be made to a Document:

A
  1. Additions
  2. Deletions
  3. Insertions
  4. Obliterations
  5. Erasures
  6. Removal of other material
86
Q

Is a photocopy of a false document claims merely to be a copy, does it tell a lie about itself?

A

No. It does not

87
Q

When is Forgery complete?

A

As soon as the document is made with:
- Knowledge and
- Intent

88
Q

Examples of Forgery:

A
  1. Writing an exam paper in the name of someone else required to sit the exam.
  2. Pre-dating a deed to give it priority over another.
  3. Falsely completing a statement of service on a witness summons
89
Q

When it comes to an offender using a forged document what must you prove?

A
  • That the defendant knew the document was forged at the time of the physical act of using it.
  • The document was dfalse.
  • The user knew the document had been made (with the knowledge & intent required under s256)
90
Q

Name the elements of Computer Crime (s249)

A

S249(1) - Directly or Indirectly, Accesses any computer system, thereby dishonestly or by deception, without claim of right, obtains a pecuniary advantage, property, valuable consideration etc or cause loss to any other person

S249(2) - Directly, or Indirectly, Accesses any computer system, with intent, dishonestly without claim of right to obtain a PA, Property etc or cause loss to any other person

Deception (9 decks)

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