2. Deception Offences - Deception Flashcards
How does legislation define deception(s240(2))?
deception means –
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.
What must a representation be?
it must be capable of being false so it must contain a proposition of fact. It can be made one of 3 ways: orally, documentary or by conduct.
What is held regarding false representation?
the representation must be false and the defendant must know or believe that it is false or be reckless whether it is false. Absolute certainty is not required and wilful blindness will suffice. Knowledge can be established by an admission, implication from the surrounding circumstances or propensity evidence.
What must be proved for deception?
you must prove:
• 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 material particular
What is the case law regarding an intention to deceive?
An intention to deceive requires that the deception is practised in order to deceive the affected party. Purposeful intent is necessary and must exist at the time of deception.
(R v Morley)
What is the case law regarding representations?
Representations must relate to a statement of existing fact, rather than a statement of future intention.
(R v Morley)
How is silence normally treated?
as a general rule, silence or non-disclosure will not be regarded as 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.
What is the case law regarding recklessness?
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.
What is the definition of a device?
Device – a plan, scheme or trick.
What is the definition of an omission?
is inaction i.e. not acting. It can either be a conscious decision not to do something or not giving thought to the matter at all.
What is the definition of material particular?
if it is something important or something that matters
What is the definition of a trick?
Trick – an action or scheme undertaken to fool, outwit or deceive.
What is the definition of a stratagem?
Stratagem – a cunning plan or scheme especially for deceiving an enemy or trickery.
What are different examples for oral, documentary and conduct representation?
Oral
- verbally claiming to own goods that are subject of HP
Conduct
- portraying self as a charity collector
- wearing uni gear to get student discount
- removing price tags with cheaper ones
Documentary
- presenting a false certificate of qualification
- completing a valueless cheque knowing it will not be honoured.
