1
Q
define access
A
in relation to computer system:
- means instruct,
- communicate with,
- store data in,
- receive data from, or
- otherwise make use of any of the resources of the computer system.
2
Q
for the purposes of money laundering (s243-245) does an act include an omission?
A
yes
3
Q
does the term authorisation include that conferred on a person under an enactment, rule of law or order of a court?
A
yes
4
Q
for s255, 256, 263 what does a ‘bank note’ mean?
A
any negotiable instrument used or intended for use as currency and issued by
- the RBNZ,
- banks in other countries or
- govts of other countries
5
Q
computer system
A
- computer
- 2+ connected computers
- communication links between computers, remote terminals, or another device
- 2+ connected computers and links between them or remote terminals or another devices
- any part of items described above, including all related:
- input,
- output,
- processing,
- storage,
- software,
- communication facilities
- stored data.
6
Q
for money laundering (s243-245) and in relation to property, was does conceal mean?
A
to conceal or disguise it and includes:
- to convert property from one form to another
- to conceal or disguise the nature, source, location, disposition or ownership of property or of any interest in the property
7
Q
what is a counterfeit coin?
A
altered in any manner so as to resemble any other coin
8
Q
current coin
A
coin of any substance lawfully current in NZ or any other country.
9
Q
deal with (money laundering and in relation to property)
A
deal with in any manner and includes
- to dispose of it by way of sale, purchase, gift or otherwise
- transfer possession of it
- bring it into NZ
- remove it from NZ
10
Q
define deception
A
s240(2):
(a) a false representation,
- whether oral, documentary, or by conduct,
- where the person making the representation intends to deceive any other person, AND
(i) knows that it is false in a material particular, OR
(ii) is reckless as to whether it is false in a material particular, OR
(b) an omission to disclose a material particular, with intent to deceive any person, in circumstances where there is a duty to disclose it, OR
(c) a fraudulent device, trick, or stratagem used with intent to deceive any person
11
Q
dishonestly
A
s217: in relation to an act or omission means
- done or omitted without a belief that there was express or implied consent to, or authority for,
- the act or omission from a person entitled to give such consent or authority
12
Q
the 3 ways a false representation can be communicated
A
- writing - e.g. cheque that won’t be honoured
- conduct - e.g. pretending to be charity collector
- demeanour - e.g. clerical collar to pass oneself off as a priest etc
13
Q
false document (relates to forgery)
A
s255:
- of which the whole or any material part:
(a) purports to be made by any person who did not make it, or by a fictitious person, OR
(b) purports to be made by or on behalf of any person who did not authorise its making, or on behalf of a fictitious person, OR
(c) has been altered, whether by
- addition, deletion, insertion, removal, erasure, obliteration, or otherwise,
and that purports to have been altered by or on behalf of a person who did not alter it or authorise its alteration, or by or on behalf of a fictitious person; OR
- that is, in whole or in part, a reproduction of any other document, and that purports to have been made by or on behalf of a person who did not make it or authorise its making, or by or on behalf of a fictitious person; OR
- that is made in the name of a person, either by that person or by that person’s authority,
- with the intention that it should pass as being made by some other person who did not make it, or by a fictitious person.
14
Q
false statement
A
any statement in respect of which the person making or publishing it KNOWS or is RECKLESS as to whether the statement is false in a material particular
15
Q
Interest for money laundering and in relation to property,
A
- a legal or equitable interest in the property, OR
- a right, power, or privilege in connection with the property
16
Q
obtain
A
in relation to any person, means to obtain or retain for themselves or any other person
17
Q
Proceeds (for money laundering and in relation to an offence)
A
any property that is derived or realised, directly or indirectly, by any person from the commission of the offence.
18
Q
Property (for money laundering)
A
- real or personal property of any description, or an interest in such.
- whether in NZ or elsewhere and
- whether tangible or intangible,
19
Q
Representation
A
Simister and Brookbanks
A thing that represents another.
Can be made orally, by documents or by conduct
Must be capable of being false so must contain a proposition of fact
20
Q
trade secret
A
any information that:
- is, or has the potential to be, used industrially or commercially, AND
- is not generally available in industrial or commercial use, AND
- has economic value or potential economic value to the possessor of the information, AND
- is the subject of all reasonable efforts to preserve its secrecy.
21
Q
R v Morley (deception and intention)
A
The deception must be practised in order to deceive the affected party. The intention must be purposeful and must exist at the time of the deception.
22
Q
valueless/post-dated cheque and intention (2 cases)
A
R v Miller
if use a cheque and honestly believe the money was there or that an overdraft facility would have covered it then no intent to defraud and no offence.
R v Conrad
belief need not be reasonable
23
Q
credit (case?)
A
Fisher v Raven
the debtor’s obligation to repay and the time allowed by the creditor to do so. Does not extend to an obligation to supply services or goods
24
Q
criminal liability of a company
A
if senior executive acting on behalf of a company commits an offence then the company is criminally liable. The executive is also personally liable for their actions. (the company is the principal offender and the executive is liable as a party) junior management/employees action are not imputed to the company.
25
liability
legally enforceable financial obligation to pay. e.g. hotel bills
26
title
- being the owner.
- usually involves legal right to possession
- other parties may have interest in a thing but not necessarily have title.
- a seller cannot pass property rights to another that he does not have. e.g. a thief has no title to a stolen car and an innocent buyer cannot therefore get title.
27
market overt
does not apply in NZ
28
Hayes v R (Pecuniary Advantage)
anything that enhances the accused's financial position. It is that enhancement which constitutes the element of advantage.
29
Property
s2 CA61: includes real and personal property, and any estate or interest in any real or personal property, money, electricity, and any debt, and any thing in action, and any other right or interest.
30
valuable consideration
wider than pecuniary advantage. 'anything capable of being valuable consideration'. need not be monetary.
31
cheque value (case)
R v Bennitt
if the cheque would not have been honoured (e.g. there is no money in the account ) then value is paper only. if the cheque could have been promptly and safely converted to money - its value is the sum for which it is made out
32
claim of right
s2 CA61
- 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.
33
takes or obtains (for tangible property)
s219(4) CA61
For tangible property, theft is committed by a taking when the offender moves the property or causes it to be moved.
34
R v Misic
Essentially a document is a thing which provides evidence or information or serves as a record
35
Dishonestly taking or using a document
s228
(1) Liable 7 years who, with intent to obtain any prop/serv/PA or VC:
(a) dishonestly and without claim of right, takes or obtains any document
(b) dishonestly and without claim of right, uses or attempts to use any document
(2) Liable 3 years who, without reasonable excuse, sells, transfers, or otherwise makes available any document
- knowing that document to have been the subject of a ss(1) offence
36
Hayes v R (using a document)
An unsuccessful use of a document is as much use as a successful one.
37
Attempts (and section?)
s72 CA91
(1) Every one who, having an 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.
(2) whether something is an attempt is a question of law
38
What must be proved for a false representation? (Definition of deception) (4)
1. That there was an intent to deceive
2. That there was a representation by the defendant
3. the representation was false
4. 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
R v Harney
Recklessness means the conscious and deliberate taking of an unjustified risk. In NZ it involves proof that the consequence complained of could well happen, together with an intention to continue the course of conduct regardless of risk.
40
R v Cox (possession)
Possession involves two elements:
1. Physical element, is actual or potential physical custody or control.
2. Mental element is a combination of knowledge and intention: knowledge as in the sense of an awareness by the accused that the substance is in his possession and an intention to exercise that possession.
41
Must the credit be legally enforceable?
Yes
42
Obtain by deception or causing loss by deception (CL)
s240 CA61
(1) by any deception and without claim of right:
(a) obtains ownership, possession, or control over,
- any P/Priv/S/PA/B/VC, directly or indirectly OR
(b) in incurring any debt or liability, obtains credit, OR
(c) induces or causes any other person to
- accept, alter, deliver, destroy, execute, endorse, make
- any document or thing capable of being used to derive a pecuniary advantage. OR
(d) causes loss to any other person
(1A) Liable 3 years, without reasonable excuse,
- sells, transfers, or otherwise makes available
- any document or thing capable of being used to derive pecuniary advantage
- knowing that, by deception and without claim of right,
- the document or thing was, or was caused to be, delivered, executed, made, accepted, endorsed or altered.
43
Loss
Not defined. Must be a direct loss.
44
R v McKay
On appeal it was held that the credit had been obtained on booking in but at that time the accused did not possess an intent to deceive.
45
Is delay or inability to perform a bona fide intention deception?
No
46
Is payment being withheld for dissatisfaction of service a deception?
No
47
R v Laverty
Must prove that the person parting with the property was induced to do so by the false representation made.
48
Must a 'thing' be tangible?
yes
49
R v Morley
Loss should be assessed by the extent to which the complainant's position before the deception had been diminished or impaired.
50
What is required to be proved for s240(1)(d) around loss (case?)
R v Morley:
1. the loss was caused by the deception
2. it was reasonably foreseeable some more than trivial loss would occur, but
3. need not prove the loss was intentionally caused.
51
penalty for obtaining/causing loss by deception?
s241
(a) loss/value \> $1000 = 7 years
(b) loss/value $500-$1000 = 1 year
(c) loss/value \< $500 = 3 months
52
What is voidable title?
Title obtained by deception, fraud, duress or misrepresentation. Can be avoided by the seller.
53
Do thieves ever gain title?
No.
54
What is necessary to avoid title?
- communicate with buyer
- take all possible steps to bring it to buyer's attention
- advise police
55
Obtaining by deception vs theft by conversion?
To gain by deception, the owner has freely given the offender possession and/or title.
If someone has gained possession by theft, they have taken it without the owner's knowledge or consent and do not get title.
e.g.
get goods on 'hire' by false representation = deception.
If later sell hired goods = theft by conversion
56
Theft by person in special relationship
s220
(1) Any person
- who has received or is in possession of, or has control over,
- any property on terms or in circumstances that the person knows require the person—
(a) to account to any other person for the property, or for any proceeds arising from the property; or
(b) to deal with the property, or any proceeds arising from the property, in accordance with the requirements of any other person.
(2) Every one to whom subsection (1) applies commits theft who
- intentionally fails to account to the other person as so required or
- intentionally deals with the property, or any proceeds of the property, otherwise than in accordance with those requirements.
57
When is forgery complete?
s256 (3) Forgery complete when document made AND
- intent ss(1)
- intent and knowledge ss(2)
58
Is forgery complete even if document is incomplete?
s256 (4)
Forgery is complete even if the document is incomplete or does not purport to be binding or sufficient in law IF
- made and intended to be acted upon as genuine.
59
Forgery (3 offences)
s256
(1) Liable 10 years make a false document with the intention of using it to obtain any prop/priv/S/PA/B/VC
(2) Liable 3 years make a false document
- knowing it to be false AND
- with the intent that it in any way be used or acted upon as genuine, in NZ or elsewhere
(5) Liable 3 years who, without reasonable excuse,
- sells, transfers, or otherwise makes available any false document
- knowing it to be false AND
- TO have been made with the intention that it be used or acted on as genuine, in NZ or elsewhere.
60
Using forged documents (s257)
(1) Liable 10 years, knowing a document to be forged,—
(a) uses the document to obtain any Prop/Priv/S/PA/B/VC OR
(b) uses, deals with, or acts upon the document as if it were genuine; OR
(c) causes any other person to use, deal with, or act upon it as if it were genuine.
61
Altering, concealing, destroying or reproducing documents with the intent to deceive (s258)
(1) Liable 10 years, with intent to obtain by deception any Prop/Priv/S/PA/B/VC, or to cause loss to any other person,—
(a) alters, conceals, or destroys any document, or causes any document to be altered, concealed, or destroyed; or
(b) makes a document or causes a document to be made that is, in whole or in part, a reproduction of any other document.
(3) Liable 3 years, without reasonable excuse, sells, transfers, or otherwise makes available any document knowing that—
(a) the document was altered, concealed, or made, in whole or in part, as a reproduction of another document; AND
(b) the document was dealt with in the manner specified in paragraph (a) with intent to—
(i) obtain any Prop/Priv/S/PA/B/VC; or
(ii) cause loss to any other person.
62
Forgery vs Altering, concealing, destroying or reproducing documents?
Altering etc can be done to any document. Forgery must involve a 'false document'
63
Using altered or reproduced document with intent to deceive (s259)
(1) Liable 10 years, knowing any document to have been made or altered in the manner and with the intent referred to in s258,
- with intent to obtain by deception any Prop/Priv/S/PA/B/VC, or to cause loss to any other person,—
(a) uses, or deals with, or acts upon, the document; or
(b) causes any person to use or deal with, or act upon, the document.
(2) For the purposes of this section, it does not matter that the document was altered or made outside New Zealand.
64
Police v Le Roy
Benefit takes natural meaning and not limited to financial or pecuniary advantage
65
When is an alteration material?
When it increases the value or negotiability of a document or instrument
66
Accessing computer system for dishonest purpose s249
(1) Liable 7 years, directly or indirectly, accesses any computer system and thereby, dishonestly or by deception, and without claim of right,—
(a) obtains any Prop/Priv/S/PA/B/VC; or
(b) causes loss to any other person.
(2) Liable 5 years, directly or indirectly, accesses any computer system with intent, dishonestly or by deception, and without claim of right,—
(a) to obtain any Prop/Priv/S/PA/B/VC; or
(b) to cause loss to any other person.
67
Damaging or interfering with a computer system
s250:
(1) Liable 10 years, intentionally or recklessly destroys, damages, or alters any computer system if he or she knows or ought to know that danger to life is likely to result.
(2) Liable 7 years, intentionally or recklessly, and without authorisation, knowing or being reckless as to whether or not he or she is authorised,—
(a) damages, deletes, modifies, or otherwise interferes with or impairs any data or software in any computer system; or
(b) causes any data or software in any computer system to be damaged, deleted, modified, or otherwise interfered with or impaired; or
(c) causes any computer system to—
(i) fail; or (ii) deny service to any authorised users.
68
Accessing computer system without authorisation s252
s252
(1) Liable 2 years who intentionally accesses, directly or indirectly,
- any computer system without authorisation,
- knowing that he or she is not authorised to access that computer system, OR
- being reckless as to whether or not he or she is authorised to access that computer system.
(2) To avoid doubt, ss(1) does not apply if a person who is authorised to access a computer system accesses that computer system for a purpose other than the one for which that person was given access.
69
A fraudulent device, trick or stratagem - what does fraudelent mean?
Fraudulent, meaning dishonest in the traditional sense.
70
False document includes a document of which the whole or any material part purports to be made:
by a person who did not authorize its making
71
Can an SFO investigator arrest someone?
No. Under no circumstances does the investigator have power of arrest.
72
When investigating company fraud, what sources of information must you canvass early to assist you in your investigations? (
1. Police accountants & Legal Officers:
2. Ministry of Business, Innovation & Employment:
- Registrar of Companies
- Companies Office
- Official assignee
- Insolvency Services
3. Commerce Commission:
The Commerce Commission can assist in matters relating to:
- The Fair Trading Act 1986
- the Unsolicited Goods & Services Act 1975
- pyramid selling
4. Financial Markets Authority
5. NZ Customs
6. Liquidators & receivers
73
You are investigating a series of cheque fraud where an account has been opened and a cheque book obtained using fictitious details. Apart from the normal bank enquiries in relation to cheque offences, list 4 possible enquiries you should make regarding the offender opening the account with the bank.
1. The account number and the date it was opened
2. The nature of the first deposit
3. Details of any other deposits
4. The details used when the account was opened
74
When interviewing an offender who alleges they have been defrauded (stolen credit card or cheque), what 2 questions should be asked by the investigator?
1. Find out the identity used by the offender
2. Obtain descriptions of the offender, the property obtained and the vehicle used
75
For propensity evidence to be admissible the ultimate issue is?
The degree to which the probative value of the evidence out weighs the prejudicial effect.
76
To prove a charge of theft by a person in a special relationship under s220(1) C.A 1961 it is necessary to prove that the person knew that they had to:
Account to any other person for the property or for any proceeds arising from the property.
77
For theft by a person in a special relationship, is it a question of law whether the circumstances required any person to account or to act in accordance with any requirements?
yes, it is a question of law
James - CIB Modules SF
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