Deception

Question 1

Liability

Dishonestly taking a document

Answer 1

Section 228(1)(a)
7 Years Imprisonment

With intent to obtain 
any property OR service OR pecuniary advantage OR valuable consideration
Dishonestly and without claim of right 
Takes
OR
Obtains 
Any document

Question 2

Hayes v R - Pecuniary Advantage

Answer 2

A pecuniary advantage is anything that enhances the accused’s financial position. It is that enhancement which constitutes the element of advantage

Question 3

Define Valuable Consideration

Hayes v R

Answer 3

The scope of valuable consideration is wider than a pecuniary advantage.

Hayes v R
Anything capable of being valuable consideration, whether of a monetary kind or of any other kind; in short money or money’s worth

For example

• monetary payment in return for goods and services
• goods given in return for services provided
• issuing a false invoice to receive payment for goods never supplied

Question 4

Define Dishonestly

Answer 4

In relation to any 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

Question 5

Hayes v R

Belief in relation to dishonesty

Answer 5

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

Belief may be either:

• 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 authorised by a person entitled to authorise it

Belief has to be reasonable or based on reasonable grounds and is significant

Question 6

Define Claim of Right

Answer 6

Claim of right, 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

Question 7

What was the amendment to Claim of Right in the Crimes Amendment Act 2011

Answer 7

Where previously the defendant was required to have a belief that the act was lawful the revised wording of the definition 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

Question 8

What are the four elements required for belief?

Answer 8

First, the belief must be a belief in a proprietary or possessory right in property

Secondly, the belief must be about rights to the property in relation to which the offence is alleged to have been committed

Thirdly, the belief must be held at the time of the conduct alleged to constitute the offence

Fourthly, the belief must be actually held by the defendant

Question 9

Define takes or obtains

Answer 9

Obtains means to obtain or retain for themselves or any other person.

Takes is not defined but taking is when the offender moves the property or causes it to be moved

Question 10

Define document using R v Misic

Answer 10

Essentially a document is a thing which provides evidence or information or serves as a record

Question 11

Define uses or attempts to use

Hayes v R

Answer 11

An unsuccessful use of a document is as much use as a successful one. An unsuccessful use must not be equated conceptually with an attempted one. The concept of attempt relates to use not to the ultimate obtaining of a pecuniary advantage, which is not a necessary element of the offence. Because the use does not have to be successful it may be difficult to draw a clear line between use and attempted use

Question 12

Define relevant points of S72, Attempts

Answer 12

A question of law to decide whether an act is done or omitted with an intent to commit an offence

An act done or omitted with intent to commit an offence may constitute an attempt if it is immediately or proximately connected

Question 13

Liability

Obtaining by Deception

Answer 13

Section 240(1)(a), CA1961

By any deception and without claim of right
Obtains ownership or possession of, or control over
Any property, or any privilege, service, pecuniary advantage, benefit or valuable consideration
Directly or indirectly

Question 14

Define deception as per S240(2)

2 parts ((b) and (c))

Answer 14

(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

Question 15

Define representation as per Simester & Brookbanks

Answer 15

It must be capable of being false so it must contain a proposition of fact

Question 16

What must be proved for deception?

3 points

Answer 16

• 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

Question 17

What is R v Morley in relation to an intention to deceive

Answer 17

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 the deception

Question 18

Define false representation

Answer 18

Under the current law the representation 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. Absolute certainty is not required and wilful blindness as to falsity of the statement will suffice.

In Carlos v R it was directed that each alleged misrepresentation should be included in a separate count

Question 19

When is the offence of deception complete?

Answer 19

The defendant had the purpose of deceiving the victim or knew that the victim was virtually certain to be deceived

Note the recklessness in s240(2)(a) only relates to whether a representation is false in a material particular

Question 20

State R v Morley in relation to representations by the defendant

Answer 20

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

Question 21

Define the continuing effect for representations

Answer 21

In many cases representation by words or conduct may have a continuing effect. Eg ordering food at a restaurant represents that the diner will follow normal practice and pay for the meal afterwards - if they don’t pay the it would be a false representation and fall within s240

Question 22

Define silence

Answer 22

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

eg being told a price of an item then taking it to the checkout where a cheaper sticker price is on it, paying the cheaper option and being silent - guilty

Question 23

Define knowledge in relation to representation

Answer 23

The prosecution must prove that the defendant knew that the representation was false in a material particular or was reckless as to its falsity. Absolute certainty is not required

Knowledge as per Simester & Brookbanks - knowing or correctly believing

May also be held to account if conduct has amounted to wilful blindness

Question 24

How can knowledge be established

3 points

Answer 24

• an admission
• implication from circumstances surrounding the event
• propensity evidence

Question 25

Define material particular

Answer 25

Not defined by the crimes act and can be given its usual meaning of an important, essential or relevant detail or item

Question 26

What is R v Harney - recklessness

Answer 26

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

Question 27

When is the defendant liable by recklessness

Answer 27

If they are reckless as to whether the representation was false in a material particular. This means that the defendant was conscious of the risk that the representation was false in a material particular

Question 28

What is the subjective/objective test for recklessness

Answer 28

Must be proved -

• That the defendant consciously and deliberately ran a risk (subjective test)
• That the risk was one that was unreasonable to take in the circumstances as they were known to the defendant (objective test)

Question 29

Define an omission

Answer 29

Not defined by the act, an omission is an inaction. It can either be a conscious decision not to do something or not giving thought to the matter at all

Question 30

Define a duty to disclose when it comes to deception

Answer 30

Along with showing an intent to deceive , s240(2)(b) the defendant was under a duty to disclose and that the defendant failed to perform that duty

Often originate in civil law for example a contractual relationship

Question 31

Define a device, trick and stratagem

Answer 31

Device - a plan, scheme or trick
Trick - an action or scheme undertaken to fool, outwit, or deceive
Stratagem - a cunning plan or scheme especially for deceiving an enemy, or trickery

Underlying each term are the concepts of deceit and dishonesty

Note too that the scheme or trick must be fraudulent and here this means dishonest in the traditional moral sense

Question 32

When is obtaining complete in relation to sending something by post

Answer 32

Complete at the time of posting

Question 33

Define possession referring to R v Cox

Answer 33

R v Cox
Possession involves two elements. The first, the physical element, is actual or potential physical custody or control. The second, the mental element is a combination of knowledge and intention: knowledge in the sense of an awareness by the accused that the substance is in his possession and an intention to exercise possession

Question 34

Define actual and potential possession

Answer 34

Actual possession arises where the thing in question is in a persons physical custody or control

Potential possession arises when the person has the potential to have the thing in question in their control

Question 35

Define control

Answer 35

To control something means to exercise authoritative or dominating influence or command over it

Question 36

Give four examples of pecuniary advantage

Answer 36

Basically means economic or monetary advantage

• cash from stolen goods
• clothing or cash obtained by a credit or eftpos card
• a discount (by using a student ID)
• avoiding or deferring payment of a debt

Question 37

Define debt and liability incurred

Answer 37

The debt or liability (incurred) must be legally enforceable

Debt means money owing from one person to another

Liability means a legally enforceable financial obligation to pay, such as the cost of a meal

Question 38

What must you prove for s240(1)(b) (debt, liability obtained credit)

Answer 38

• Identify the suspect
• They by deception and without claim of right
• In incurring any debt or liability
• Obtained credit

Question 39

Define obtaining credit

Answer 39

Obtaining credit requires a debtor to gain a creditors agreement to the deferred payment of a debt or obligation. The credit obtained must be in respect of a monetary obligation

Question 40

Define obligation to pay referring to Fisher v Raven

Answer 40

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

Question 41

Define legally enforceable

Answer 41

The obligation to pay must be legally enforceable against whomever the credit is obtained (usually the defendant)

Question 42

Define 3rd person credit

Answer 42

Adams on Criminal Law held that credit must be obtained by and given to the defendant personally

3 situations of 3rd person credit

• obtaining money on loan
• extending existing overdraft facilities
• renting or leasing a dwelling

Question 43

Define the intention to deceive in relation to gain credit

Answer 43

Gaining credit is not of itself unlawful unless it is accompanied by an intent to deceive

Question 44

Define the timing of the intention to deceive referring to R v Mckay

Answer 44

Intention to deceive must exist at the time when the deception is perpetrated.

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

Question 45

Give two examples of obtaining credit

Answer 45

To enter a restaurant, sit at a table and order a meal without any intention of paying for it later is obtaining credit by deception

If a shopkeeper mistakes the customer for someone else and gives 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

Question 46

Give an example where a non-payment of debt is not deceit

Answer 46

Unable to pay due to unforeseen circumstances, loss of money or oversight is not deceit

Question 47

Define deception through a hire purchase

Answer 47

Where goods are obtained on hire purchase by a false representation the offence committed is deception.

However, if the offender later sells the goods to another, the offender commits theft by conversion. The offender never receives title for goods fraudulently obtained on hire purchase

Question 48

How to prove inducement

Answer 48

Victim questioned to get answers

• that the false representation was believed and
• that it was the consequence of that belief that the victim parted with his or her money

Question 49

What is R v Laverty in relation to inducement

Answer 49

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

Question 50

Give the definitions of deliver over, execute, endorse, alter and accept

Answer 50

• Deliver over is to surrender up someone or something
• Execute is to put a course of action into effect
• Endorse is to write or sign on a document
• Alter is to change in character or composition, typically in a comparatively small but significant way
• Accept is to receive something

Question 51

Define loss

Answer 51

Loss caused by deception must be a direct loss, indirect loss is not included

There is no requirement in s240(1)(d) that the person who suffers the loss be the person who is deceived

Question 52

Define to any other person

Answer 52

Legislation provides a wide definition of the term person that incorporates not only real people, but also companies and other organisations

Question 53

What needs to be proved for s240(1)(d) causing loss to any other person
R v Morley
3 points

Answer 53

R v Morley said that:

• 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

There must be loss to any other person, but there is no requirement that there be any benefit to anyone

Question 54

What are the deception penalties

Answer 54

• exceeds $1000 - 7 years
• $500 - $1000 - 1 year
• under $500 - 3 months

Question 55

Define propensity

Answer 55

Propensity - evidence that tends to show a persons propensity to act in a particular way or have a particular state of mind, being evidence of acts, omissions, events, or circumstances with which a person is alleged to have been involved

Does not include evidence of an act or omission that is

• 1 of the elements of the offence for which the person is being tried or
• the cause of action in the proceeding in question

A party may offer propensity evidence in a civil or criminal proceeding about any person

Question 56

Define when the prosecution can offer propensity evidence against the defendant

Answer 56

• The prosecution may offer propensity evidence about a defendant only if the evidence has a probative value in relation to an issue in dispute which outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant

When assessing the probative effect the judge may consider:

• the frequency
• the connection in time
• the extent of the similarity
• the number of persons making allegations

When assessing the prejudicial effect the judge MUST 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

Question 57

When is propensity admissible in deception cases

Answer 57

Whether previous or later occasions to the offence charged is admissible where there is a sufficiently strong connection between the offences

The ultimate issue is the degree to which the probative value of the evidence outweighs its prejudicial effect

Question 58

Define title

Answer 58

Title simply means a legal right to the property

Question 59

Difference between theft and obtaining by deceit

Answer 59

A thief never gets title

Question 60

Define voidable title

Answer 60

A title obtained by deception, fraud, duress or misrepresentation is called a voidable title. This means that the title can be avoided by the seller

Question 61

What do you need to do to avoid title?

Answer 61

To avoid the title one must do one of the following:

• communicate with the seller
• take all other possible steps to bring it to the sellers notice by writing a letter, text, phone call etc
• advise the police that the vehicle was obtained by deception

Question 62

What are the two parts to receiving after restoration to owner

Answer 62

(a) any property stolen or obtained by any other imprisonable offence has been returned to the owner or
(b) 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 not know that the property had previously been stolen or obtained by any other imprisonable offence

Question 63

Define money when it comes to title

Answer 63

Money gets a good title even though it may be clearly proved to have been stolen

Question 64

Does the deceiver get title?

Answer 64

Yes if obtained by deception when they get possession because the giver of goods consents

Question 65

Define Theft by person in special relationship

Answer 65

s220(1) This section applies to 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

Question 66

Whats needed to prove theft by person in special relationship

Answer 66

7 years imprisonment no matter the value

• that he or she have received property on terms or in circumstances which, to the defendants knowledge, affect what the accused 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

Question 67

Define forgery s256

Answer 67

(1) Everyone is liable to imprisonment for a term not exceeding 10 years who makes a false document with the intention of using it to obtain any property, privilege, service, pecuniary advantage, benefit or valuable consideration
(2) Everyone is liable to imprisonment for a term not exceeding 3 years who makes a false document, knowing it be false, with the intent that it in any way be used or acted upon, whether in NZ or elsewhere, as genuine

Question 68

What is the test for a document

Answer 68

May be whether the writing conveys the same message as the spoken word in the minds of all people able to read it

Question 69

Define using a document when it comes to forgery

Answer 69

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

Question 70

List alterations to make a false document

Answer 70

additions
insertions
deletions
obliterations
erasures
removal of material otherwise

A false document can be made by making material alterations to a genuine document

An alteration is a material alteration if it increases the value or negotiability of a document or instrument

Question 71

When is forgery complete

Answer 71

Complete as soon as the document is made with the knowledge and intent

Question 72

Intent for forgery

Answer 72

Knowing the document was false they intended:

• to use the false document to obtain or
• that the false document be used or acted on as genuine

It must also be proved that the offender intended to deceive by means of that which is false also intended that the document be used to mislead

There is no requirement that the document be put to its intended use

The forgery may be complete even if the document is not completed or is not in a legally effective form

Question 73

Give examples of forgery

Answer 73

• 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

Question 74

What do you need to have for s257 using forged documents

Answer 74

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

Also must prove:

• the document was false
• the user knew that the document had been made with the knowledge and intent required under s256

Question 75

Define the difference between forgery and altering

Answer 75

With forgery, an intent to deceive is only required, not an intent to obtain by deception

In the offence of altering, concealing, destroying, or reproducing a document, you must prove that the offender intended to obtain by deception

Question 76

What must be proved for using altered or reproduced document with intent to deceive s259

Answer 76

The prosecution 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 altered it

Question 77

What is a computer

Answer 77

Computer system means

• a computer or
• 2 or more interconnected computers or
• any communication links between computers or to remote terminals or another device or
• 2 or more interconnected computers combined with any communication links between computers or to remote terminals or any other device and
• includes any part of the items described above and all related input, output, processing, storage, software, or communication facilities, and stored data

It encompasses one computer, a network of computers or a computer connected to the internet with the potential of connecting to millions of networked computers

Question 78

Define access in computer crime

Answer 78

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

Access requires that the person instructing or communicating with the computer system has some form of connection with the computer system

Question 79

Define the distinction between s249(1) and s249(2) (Accessing computer system for dishonest purpose)

Answer 79

s249(1) is directed at the situation where a person has actually accessed a computer system, obtains the offending material or causes loss, whereas s249(2) is directed at someone who actually accesses the computer system with that intent regardless of the result

Question 80

Define s250 damaging or interfering with a computer system

Answer 80

(1) intentionally or recklessly destroys, damages, or alters any computer system where danger to life is likely to result

(2) intentionally or recklessly, without authorisation, knowing not authorised, or being reckless as to whether authorised -
- damages, deletes, modifies or interferes software or data
- causes the same above but in another computer
- causes any computer to fail or deny service to an authorised person

Question 81

Define s252 accessing computer system without authorisation

Answer 81

2 years for person 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

Does not apply to person who has authorisation

Question 82

Liability

Dishonestly using a document

Answer 82

Section 228(1)(b)
7 Years Imprisonment

With intent to obtain 
any property OR service OR pecuniary advantage OR valuable consideration
Dishonestly and without claim of right 
Uses
OR
Attempts to use 
Any document

Question 83

Liability

Obtaining by deception (1)(b)

Answer 83

s240(1)(b) CA1961

By deception and without claim of right
In incurring any debt or liability
Obtained credit

Question 84

Inducing or causing to deliver etc by deception s240(1)(c)

Ingredients

Answer 84

By deception and without claim of right
Induced or caused any other person to deliver over, execute, make, accept, endorse, destroy or alter
Any document or thing capable of being used to derive a pecuniary advantage

Question 85

Liability

Causing loss by deception

Answer 85

s240(1)(d) CA1961

By deception and without claim of right
Caused loss to any other person

Question 86

Steps for investigating deception offences

Answer 86

Interviewing

• interview informant/complainant
• contact account manager
• obtain a sample of the suspects handwriting
• obtain CCTV

Ongoing enquiries

• liaise with investigations officer
• handle documents correctly
• inform colleagues

Locating offender

• check relevant addresses
• follow up obvious leads - regos, phone numbers
• if no suspects fingerprint cheques/vouchers
• interview suspect

Preparing the prosecution

• obtain supervisors authority to charge
• prepare the file

Question 87

People who can help

Answer 87

Police accountants and legal officers
MBIE
Commerce Commission
Financial Markets Authority
NZ Customs
Liquidators and receivers

Question 88

What are the four categories of deception offences

Answer 88

Category A
- large scale thefts and other dishonesty offences against employers by employees - usually people such as accountants and mangers who use their position to manipulate the company’s financial systems

Category B
- dishonesty offences committed against financial institutions by people outside the institution obtaining money through deception. Includes GST deception against IRD by businesses

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

Category D
- dishonesty offences committed by professional people in a position of trust, such as solicitors and accountants, against their clients