Deception

Question 1

Define obtain.

Answer 1

Crimes Act 1961, Section 217

obtain or retain for himself or herself or for any other person.

Question 2

Define property.

Answer 2

Crimes Act 1961, Section2
Property 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.

Question 3

Define pecuniary advantage in s228.

Answer 3

Pecuniary advantage - economic or monetary advantage.

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

Question 4

Define valuable consideration in s228.

Answer 4

A valuable consideration is “anything capable of being valuable consideration, whether of a monetary kind or of any other kind; in short, money or money’s worth”.
Hayes v R

Question 5

Define dishonestly in s228.

Answer 5

Crimes Act 1961, Section 217
Dishonestly, in relation to an 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.

Hayes v R
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.

Question 6

Define claim of right.

Answer 6

Crimes Act 1961, Section 2
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

Define taking.

Answer 7

Crimes Act 1961, Section 219(4)

For tangible property, theft is committed by a taking when the offender moves the property or causes it to be moved.

Question 8

Define document as in a liability.

Answer 8

s217, CA 1961
Document
Includes part of a document in any form, and includes:
- paper/material containing anything that can be read
- photos, negatives and related items
- discs, tapes, cards or other devices/equipment on which information is stored and can be reproduced

R v Misic
“Essentially a document is a thing which provides evidence or information or serves as a record.”

Question 9

Discuss the element of uses or attempts to use.

Answer 9

Uses or attempts to use
The prosecution must prove that the offender used or attempted to use the document with the intent to obtain the property, service, pecuniary advantage or valuable consideration.

Hayes v R
“An unsuccessful use of a document is as much use 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 use.”

Question 10

Discuss the findings in R v Morley regarding intention to deceive.

Answer 10

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 11

How is recklessness defined in case law?

Answer 11

Rv Harney
“Recklessness means the conscious and deliberate taking of an unjustified risk. In New Zealand it involves proof that the consequence complained of could well happen, together with an intention to continue the course of conduct regardless of the risk.”

Question 12

Discuss the findings in Deception case law regarding possession.

Answer 12

R v Cox
Possession involves two… elements. The first, often called the physical element, is actual or potential physical custody or control. The second, often described as 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 13

Discuss the findings in case law regarding inducement.

Answer 13

R v Laverty
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 14

1. Car bought with valueless cheque.
2. Sold to genuine buyer,
3. Title voided by complainant.

Who gets the car?
Is the buyer liable?

Answer 14

Buyer keeps car.

Buyer not liable.

Question 15

1. Car bought with valueless cheque.
2. Title voided.
3. Sold to genuine buyer.

Who gets car?
Is buyer liable?

Answer 15

Seller gets car back.

Buyer not liable.

Question 16

1. Car bought with valueless cheque.
2. Title voided.
3. Given to knowing receiver.

Who gets car?
Is receiver liable?

Answer 16

Seller gets car.

Receiver is liable.

Question 17

1. Car bought with valueless cheque.
2. Given to knowing receiver.
3. Title voided.

Who gets car?
Is receiver liable?

Answer 17

Seller gets car.

Receiver not liable.

Question 18

A car is bought with a valueless cheque. It is given to a knowing receiver, who received possession and voidable title. The title is then voided. The seller gets the car back and the receiver is not liable because the item was not stolen at the time of receiving. What other kind of charge could be considered for the receiver?

Answer 18

Party to the original offence.

Question 19

Outline the circumstances of R v Hayes.

Answer 19

Hayes is a primary teacher. Involved in motor accident. Began receiving payments from ACC. Continued to submit medical certificates to obtain payments. Certified she was not working and unable to when she was running two companies and assisting partner with physical work.

Argued she honestly believed her declarations only related to her capacity to work in pre-accident occupation. Honestly believed she was entitled to receive compensation.

Question 20

Discuss the element of by any deception in s240(1)(b).

Answer 20

s240(2), CA 1961

(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.

R v Morley
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 21

What is required to be proved for the offence of deception?

Answer 21

• 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 22

Outline the penalties for deception offences.

Answer 22

Loss exceeds $1000 = max 7 yrs
Loss greater than $500 but less than $1000 = max 1 yr
Loss less than $500 = max 3 mths

Question 23

How can a complainant avoid title?

Answer 23

• communicating directly with the deceiver
• taking all reasonable and possible steps to bring it to the deceiver’s notice, eg sending a letter or email
• advising police of the circumstances of the deception

Question 24

Define ideal possession.

Answer 24

Warner v Metropolitan Police Commissioner
Ideal possession is:
- complete physical control
- knowledge of existence/substance/qualities

Question 25

Define debt and liability.

Answer 25

Debt
Money owed from one person to another.

Liability
Legally enforceable financial obligation to pay.

Question 26

Define person.

Answer 26

Person
Gender neutral. Proved by judicial note or circumstantial evidence.

or

s2, CA 1961
Includes Crown, public body, local authority, any board, society or company, and any other body of persons and inhabitants of a district etc.

Question 27

Discuss the element of obtains credit in s240(1)(b).

Answer 27

(Remember the fisherman McKay with the pet raven.)

Refers to the obligation on the debtor to pay or repay in the time given to do so by the creditor. The obligation to pay must be legally enforceable.
Fisher v Raven

Credit had been obtained…but at that time the accused did not possess an intent to receive.
R v McKay