Deception

Question 1

Section 228 Crimes Act 1961

Answer 1

Every one is liable to imprisonment for a term not exceeding 7 years who, with intent to obtain any property, service, pecuniary advantage, or valuable consideration,—

(a) dishonestly and without claim of right, takes or obtains any document; or
(b) dishonestly and without claim of right, uses or attempts to use any document

Question 2

Property defined

Answer 2

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

Hayes v R

Answer 3

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

Question 4

Dishonestly defined

Answer 4

Section 217, Crimes Act 1961
Interpretation
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.

Question 5

Hayes v R - the relevant belief having to be reasonable or based on reasonable grounds is significant

Answer 5

Hayes v R [2008] 2 NZLR 321; (2008) 23 CRNZ 720.
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

Without claim of right defined

Answer 6

Section 2, Crimes Act 1961
Interpretation
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

Nature of belief required - four points

Answer 7

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 8

Takes or obtains - defined

Answer 8

Section 219(4), Crimes Act 1961
Interpretation
For tangible property, theft is committed by a taking when the offender moves the property or causes it to be moved.

Question 9

Document defined

Answer 9

Document is defined in section 217 of the Crimes Act 1961.
document means a document, or 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

Question 10

Short definition - document - Case Law

Answer 10

R v Misic [2001] 3 NZLR 1

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

Question 11

Uses or attempts to use - case law

Answer 11

Hayes v R [2008] 23 CRNZ 720 (SC) [para 13]
“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 ingredient 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

Attempting to commit an offence

Answer 12

Section 72, Crimes Act 1961
Definition of attempts
(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.

Question 13

Section 240, Crimes Act 1961

Obtaining by deception or causing loss by deception

Answer 13

Everyone is guilty of obtaining by deception or causing loss by deception who, by any deception and without claim of right,-

(a) obtains ownership or possession of, or control over, any property, or any privilege, service, pecuniary advantage, benefit, or valuable consideration, directly or indirectly; or
(b) in incurring any debt or liability, obtains credit; or
(c) induces or causes 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; or
(d) causes loss to any other person.

Question 14

Section 240(2) In this section, deception means-

Answer 14

(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.

Question 15

False representation What is required to be proved

Answer 15

• 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 16

Intention to deceive - Case Law

Answer 16

R v Morley [2010] 2 NZLR 608 (CA) [para 53]
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 17

Examples of intention to deceive

Answer 17

Orally (by spoken words)
Example: Verbally claiming to own goods that are in fact subject to a hire purchase agreement.
By conduct
Example: Representing oneself to be a collector for charity by appearing to be carrying an official collection bag.
Documentary
Example: Presenting a false certificate of qualification, or completing a valueless cheque on an account in which there are no funds knowing the cheque will not be honoured.

Question 18

A representation by the defendant - two examples

Answer 18

Continuing effect - For example, entering a restaurant and ordering dinner represents that the diner will follow the normal practice and pay for the meal. If during the course of dinner the diner decides to avoid that payment, the continuing representation will become false, and the obtaining of food will come within s240.
Silence - He was approached by an assistant who, in reply to his query, advised that the cost of a particular car radio was $695.83. He advised that the assistant he would purchase the item when he went through the checkout.
By the time the defendant arrived at the checkout the item bore two price tags, one for $695.83 the other for $38.88.
The defendant allowed the cashier to charge an incorrect price by not pointing out the higher price tag on the goods. It was argued that this amounted to a representation that the price tag was the correct one.

Question 19

Knowledge can be established by:

Answer 19

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

Question 20

Recklessness - case law

Answer 20

R v Harney [1987] 2 NZLR 576 (CA)
“[Recklessness involves] foresight of dangerous consequences that could well happen, together with an intention to continue the course of conduct regardless of the risk.”

Question 21

What are the two tests?

Answer 21

Subjective / objective test
It must be proved not only that the defendant was aware of the risk and proceeded regardless (a subjective test), but also that it was unreasonable for him to do so (an objective test).
• A subjective test is the internal reasons a person acts as he or she does.
• An objective test is the test of a reasonable person.

Question 22

What is an Omission

Answer 22

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.

Question 23

Device, trick, or stratagem defined

Answer 23

• 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.

Question 24

The words “privilege” or “benefit” are not limited to a privilege or benefit of a pecuniary nature. Both of these words mean a ‘special right or advantage’. Examples

Answer 24

• Using another person’s gym membership card so that you can use the gym facilities.
• Access to medical services.
• The withdrawal of an assault charge.
• A reduction in sentence for an offence.
Where the benefit or privilege does not involve money, there does not need to be financial loss or injury to the person who has been defrauded.

Question 25

When are goods obtained

Answer 25

Goods are ‘obtained’ by a defendant if the goods come under their control, even though they may not have physical possession of them.

Question 26

Distinction between theft and obtaining by deception

Answer 26

An important distinction between theft and obtaining by deception is that in theft the property is obtained without the owner’s permission and title is not passed on.

Question 27

Special interest in property

Answer 27

It is sufficient if the person from whom the goods were obtained had some special property or interest in the goods without having actual ownership of them.

Question 28

What is a lien

Answer 28

a lien is a right over another’s property to protect a debt charged on that property. The defendant was the owner of a motor car being repaired by a garage. The garage proprietor placed a ‘lien’ over the vehicle until payment of the debt was made.

Question 29

Examples of pecuniary advantage

Answer 29

This basically means ‘economic or monetary advantage’.
Examples
• Cash from stolen goods.
• Clothing or cash obtained by a credit or EFTPOS card.
• A discount (by using a student ID card).
• Avoiding or deferring payment of a debt.

Question 30

What is Debt or liability

Answer 30

‘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 31

What you must prove under s240(1)(b)

Answer 31

• by deception and without claim of right
• in incurring any debt or liability
• obtained credit.

Question 32

Examples of situations where ‘credit’ may be obtained include:

Answer 32

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

Question 33

Timing of intention to deceive

Answer 33

The intention to deceive is essential and must exist at the time when the deception is perpetrated. So when the credit is obtained, a later decision not to repay is insufficient.

Question 34

Delay or non payment of debt Intent to deceive is not disclosed merely because there is:

Answer 34

• delay or non-payment of the debt, or
• an inability to perform a bona fide intention.
For example, to incur a debt and then be unable to pay through unforeseen circumstances, loss of money or oversight is not deceit.

Question 35

Section 240(1)(c) relates to

Answer 35

inducing or causing 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 36

Induce means

Answer 36

To persuade, bring about or give rise to”

Question 37

Proof of the inducement

Answer 37

In practice the victim of the deception is usually questioned to elicit answers proving:
• 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 38

Loss defined

Answer 38

Is likely to include financial and property losses and may also encompass emotional, cultural and intellectual losses

Question 39

To any other person Interpretation

Answer 39

Section 2 Crimes Act 1961
Interpretation
Person, owner, and other words and expressions of the like kind, include the Crown and any public body or local authority, and any board, society, or company, and any other body of persons, whether incorporated or not, and the inhabitants of the district of any local authority, in relation to such acts and things as it or they are capable of doing or owning:.

Question 40

What is required to be proved for causing loss by deception

Answer 40

• must prove that the loss was caused by a deception
• must prove that it was reasonably foreseeable some more than trivial loss would occur, but
• need not prove the loss was intentionally caused.

Question 41

Penalty for deception offences

Answer 41

Section 241, Crimes Act 1961
Punishment of obtaining by deception or causing loss by deception
Every one who is guilty of obtaining by deception or causing loss by deception is liable as follows:
(a) if the loss caused or the value of what is obtained or sought to be obtained exceeds $1,000, to imprisonment for a term not exceeding 7 years:
(b) if the loss caused or the value of what is obtained or sought to be obtained exceeds $500 but does not exceed $1,000, to imprisonment for a term not exceeding 1 year:
(c) if the loss caused or the value of what is obtained or sought to be obtained does not exceed $500, to imprisonment for a term not exceeding 3 months.]

Question 42

A false representation can be communicated by:

Answer 42

• Writing. For example, writing a cheque on an account in which
there are no funds, knowing that the cheque will not be
honoured.
• Conduct. For example, representing oneself as a collector for
charity by carrying an official collection bag, or tendering the
wrong amount for an item after swapping its price tag.
• Demeanour. For example, wearing a clerical collar to pass
oneself off as a minister of religion.

Question 43

A valuable consideration is:

Answer 43

• compensation, or a fee, or payment
• anything capable of being valuable consideration whether monetary kind or other
kind. In short it means money or monies worth

Question 44

The Serious Fraud Office investigates serious or complex fraud. It must be notified of:

Answer 44

• All fraud complaints with an actual or potential loss in excess of $2,000,000. The
actual or potential loss must result from the fraud under investigation.
• All fraud complaints where the facts, law or evidence is of great complexity. Such
complaints could include those involving international financial transactions, computer
manipulations or other complex methods of commission. However, complaints
involving international financial transactions or computer manipulations that are
simple or straightforward do not fall into this category.
• Any fraud complaint of great interest or concern; for example, fraud involving a public
figure.
• The office will determine whether the complaint involves serious or complex fraud.

Question 45

Who can make the notification to the SFO

Answer 45

Notifications must be made by employees who have been appointed by the District
Commander.

Question 46

Do the SFO have power to arrest

Answer 46

Serious Fraud Office investigators do not have the power of arrest. Consequently, there
are occasions when Police will be asked to arrest a suspect.

Question 47

Can a minor detail amount to a material particular

Answer 47

Yes a minor detail may amount to a material particular of it is of consequence to the facts of the case

Question 48

Is credit tangible

Answer 48

Credit is an intangible thing. Credit obtained must be in respect of a monetary obligation

Question 49

Does credit need to be obtained by and given to the defendant

Answer 49

Long standing authority has held that the credit must be obtained and given to the defendant personally

Question 50

Hire purchase

Answer 50

Where goods are obtained on hire purchase by a flase 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 recieves title for goods fraudulantly obtained by hp

Question 51

Direct loss caused by deception

Answer 51

The loss caused by deception must be in the nature of a direct loss. Indirect losses such as expectations loss and loss of anticipated future profits are not included

Question 52

Material Particular is not defined in the crimes act and can be given its usual meaning of

Answer 52

an important, essential or relevant detail or item