Deception

Question 1

In relation to 240(2) Besides making a false representation by oral what other ways can a false representation be made?

Answer 1

Documentary, by conduct, fraudulent device, trick or stratagem.

Question 2

What is the definition of Obtain as per section 217

Answer 2

In relation to any person, means obtain or retain for himself or herself or for any other person

Question 3

In R V Hayes what was held in relation to pecuniary advantage.

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

What is the two core elements when it comes to an offence under 220 theft by a person in a special relationship?

Answer 4

(a) That he or she have received property on terms or in circumstances which, to the defendant’s 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
(b) That the defendant intentionally departed from the relevant obligation.

Question 5

What is the difference between forgery and altering and reproduction of a document?

Answer 5

Forgery requires an intent to deceive only whereas altering, etc reproducing requires an intent to obtain by deception.

Question 6

Define Claim of Right S2 CA61?

Answer 6

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 Access when it comes to computer offences?

Answer 7

Access in relation to any computer system means, instruct, communicate with, store data in, receives data from, or otherwise make use of any of the resources of the computer system.

Question 8

Define Property S2 CA61

Answer 8

Includes real and personal property, and any estate or interest in any real or personal property, money, electricity, and any debt, and anything in action, and any other right or interest

Question 9

Define Credit as per Fisher V Raven

Answer 9

‘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 10

Define False Representation under 240(2)

Answer 10

(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 11

What two points were made in the case R v Harney in relation to recklessness

Answer 11

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 12

When interviewing a victim who alleges they have been defrauded, what two important questions should be asked by the investigator

Answer 12

(a) Find out the identity used by the offender; and

(b) Obtain descriptions of the offender, the property obtained and the vehicle used.

Question 13

What are the essential ingredients of the forgery offences as set out in section 256(1) of the Crimes act 1961

Answer 13

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

Question 14

You are investigating a cheque fraud series where the account has been opened and a chequebook obtained using fictitious details. Apart from the normal bank enquiries in relation to cheque offences, list four possible enquiries you should make regarding the offender opening the account with the bank

Answer 14

• the account number and the date it was opened
• the nature and amount of the first deposit
• details of any other deposits
• the details used when the account was opened

Question 15

What are essential ingredients of section 228 of the crimes act 1961 Taking or Using Documents

Answer 15

Everyone 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 16

Apart from a false representation what matters would constitute a deception as defined under section 240(2) of the crimes act 1961

Answer 16

(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 17

An offender using false name and address hires an electric drill from the local hire shop. The drill is found at his home some months later and he claims that he did intend to return it at some stage but didn’t get around to it.

(a) What is the most appropriate offence to charge the offender with?
(b) Who has title to the drill?

Answer 17

a) Obtain by Deception – CA s240(1)(a)

b) Title us never obtained in hiring property, title remains with the hire shop.

Question 18

Set out the ingredients of the offence of obtaining credit by deception under section 240(1)(b) of the crimes act 1961

Answer 18

(1) Everyone is guilty of obtaining by deception or causing loss by deception who, by any deception and without claim of right,—
(b) in incurring any debt or liability, obtains credit; or

Question 19

What was held in the case R v Morley as it relates to section 240(2) in relation to an intention to deceive

Answer 19

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 20

Paul is the director of a small company installing windows for domestic property owners. He has a large backlog of jobs to complete due to manufacturing delays by his suppliers in making the windows. His financial situation deteriorates and he continues to receive deposits from clients in order to pay his bills. Paul thinks he can trade his way out of financial difficulties. Is Paul criminally liable for deception? Explain your answer

Answer 20

No offence, obtains by deception requires an intention to deceive, at the time of obtaining the pecuniary advantage. When the deposits were made Paul intended on trading his way out of his financial situation.

Question 21

21. What is meant by the following terms referred to in section240(1)(b)of the Crimes Act 1961
    a) debt

b) liability

Answer 21

a) Debt’ means money owing from one person to another.

b) ‘Liability’ means a legally enforceable financial obligation to pay, such as the cost of a meal.

Question 22

Where a person has been induced to part with goods by deception, what are two steps he can take to void the deceiver’s title

Answer 22

(a) communicate with deceiver, taking all other possible steps to bring it to deceiver’s notice, eg by writing a letter
(b) advise the police.

Question 23

To successfully prosecute a person on a charge of (using altered or reproduced documents with intent to deceive) under section 259 of the Crimes Act 1961, name three mental elements you must prove

Answer 23

1. The Defendant must know, that the document had been altered etc with intent to deceive.
2. The defendant must have intended by the employment of the document, or by causing another to use or rely on it, to obtain by deception any property, privilege, service, pecuniary advantage, benefit or valuable consideration or to cause loss to any other person.
3. There must be an intention to acquire or retain the property etc, or to cause loss, “by deception”.

Question 24

How is the term (representation) interpreted (not defined) by the courts. State the relevant case law in your answer

Answer 24

It must be capable of being false so it must contain a proposition of fact – Semester and Brookbank.
Carlos v R - The falsity of the representation must be proved. Where more than one false representation is alleged, each alleged misrepresentation should be included in a separate count

Question 25

An offender knowingly presents to the retailer an item with two price tags for different amounts, aware that the higher amount is the correct price. He shows the lower price to the checkout operator and obtains the item for the lower price. He is apprehended by Police some two days later for this offence
a) what offence has the offender committed

b) who has title to the item obtained by the offender

Answer 25

a) Obtains by Deception – CA s240(1)(a)

b) The offender has voidable title until it was reported to Police and then the retailer has title again.

Question 26

The prosecution must establish either that the defendant knows or believes his representation is false in a material particular, or is reckless as to whether it is false. State your understanding in relation to the term (false in a material particular)

Answer 26

A minor detail may amount to a “material particular” if it is of consequence to the facts of the case. The question of materiality will be assessed objectively. R v Mallett - A matter will be a ‘material particular’ if it is something important or something that matters.

Question 27

Investigations into company fraud complaints will usually involve enquires with the Ministry of Commerce (confusing wording). State four possible sources available there

Answer 27

• Registrar of companies
• Company’s officer
• Official assignee
• Insolvency services

Question 28

What ‘knowledge’ must an accused person have to be liable for making a false representation

b. How can ‘knowledge’ be established

Answer 28

1. that there was an intent to deceive; and
2. that there was a representation by the defendant ; and
3. that the representation was false; and
4. that the defendant either:
   a) knew it to be false in a material particular OR
   b) was reckless whether it was false in a material particular

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

Question 29

The term computer system is defined in s248 of the Crimes Act 1961. State the definition

Answer 29

(a) means—
(i) A computer; or
(ii) 2 or more interconnected computers; or
(iii) Any communication links between computers or to remote terminals or another device; or
(iv) 2 or more interconnected computers combined with any communication links between computers or to remote terminals or any other device; and
(b) includes any part of the items described in paragraph (a) and all related input, output, processing, storage, software, or communication facilities, and stored data

Question 30

Propensity evidence may be relevant in some deception cases. When may evidence of propensity be called in cases of deception

Answer 30

S43 Evidence Act 2006
1) The prosecution may offer propensity evidence about a defendant in a criminal proceeding only if the evidence has a probative value in relation to an issue in dispute in the proceeding, which outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant.

Question 31

What is a privilege or benefit?

Answer 31

special right or advantage

Question 32

Define valuable consideration as per; Hayes v R

Answer 32

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

Question 33

Definition of document

Answer 33

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.
Sec 217 CA61

Question 34

Document - R v Misic

Answer 34

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