Deception 'B' Files

Question 1

What was held in R v HARNEY?

Answer 1

A foresight of the dangerous consequences together with intent to continue the course regardless of the risk

Question 2

John purchases property with a valueless cheque on Tuesday, and sells it to Mike the local pawn dealer on Wednesday, Mike sells it to Jane on Thursday; the valueless cheque is dishonored and reported to Police. Who has legal title of the property and who will take possession of the property?

Answer 2

Jane

Question 3

What was held in R v MISIC?

Answer 3

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

Question 4

How can title be voided?

Answer 4

By making a report to the Police.

Question 5

A person who has property on hire purchase has? a) title only (b) title and possession (c) possession only

Answer 5

(c) possession only

Question 6

Inducement must be proved where possible by direct evidence, the deceived must: (a) The deceived must believe the false representation was true (b) The deceived must not have believed the false representation was true (c) The deceiver must believe the false representation to be false

Answer 6

(a) The deceived must believe the false representation was true

Question 7

. What is valuable consideration?

Answer 7

Valuable Consideration –

Receiving compensation or a fee

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.

Eg: Issuing a false invoice to receive payment for goods never supplied.

Question 8

John finds a gym membership card for the local gym swimming pools; it’s a hot day so John goes to the pools and uses the card to gain entry without paying. What is John’s criminal liability? (a) Uses a document (b) Obtains credit by deception (c) Obtains property by deception

Answer 8

(a) Uses a document

Question 9

The case of R v HAYES defined a pecuniary advantage as:

Answer 9

Anything capable of enhancing the accused’s financial position.

Question 10

A person can only be charged under s249(1) C.A 1961 in relation to accessing a computer system for a dishonest purpose when:

Answer 10

He/she actually obtained any property or privilege, service, pecuniary advantage, benefit or valuable consideration to any other person.

Question 11

What was held in R v CROOKS in relation to knowledge?

Answer 11

The Accused maybe liable if the conduct has amounted to willful blindness & is equated to knowledge.

Question 12

In relation to s240 (2), C.A 1961, besides making a false representation orally, what other ways can a false representation be made?

Answer 12

(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 13

What is the definition of Obtains as per s217, C.A 1961?

Answer 13

Obtain in relation to any person means obtain or retain for himself or herself or for any other person.

Question 14

What is held in R v HAYES in relation to a pecuniary advantage?

Answer 14

A pecuniary advantage is

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

Question 15

What are the two core elements when it comes to an offence under s220, theft by a person in a special relationship?

Answer 15

1. That he or she has: received property on terms or in circumstances which, to the defendant’s knowledge,

• affect what the accused may do with the property or it’s proceeds or
• require the defendant to act in accordance with the requirements of another person

2. The defendant intentionally departed from the relevant obligation

Question 16

What is the difference between forgery and production of a document?

Answer 16

• The difference between the offences of forgery and altering or reproducing a document rest in the varying definitions of ‘document’ and ‘intent’
• With forgery, an intent to deceive only is 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.
• Any document can be Altered or Reproduced in the charge of Altering, Concealing, Destroying, or Reproducing a document. However, in a charge of forgery the document must be a ‘false document’ as defined in s255 of the Crimes Act 1961.

Question 17

Define Claim of Right – s2, C.A 1961

Answer 17

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 18

Define the term ‘access’ under s248 – Computer System

Answer 18

Means:

Instruct, Communicate with, Store data in, Receive data from, or otherwise Make use of any of the resources of the computer system.

Question 19

Define property – s2, C.A 1961

Answer 19

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 20

Define credit as per FISHER v RAVEN

Answer 20

‘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 21

Define false representation under s240(2)

Answer 21

False 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 the falsity of the statement will suffice.

Question 22

List the things a judge may consider when considering propensity evidence

Answer 22

Section 43(3), Evidence Act 2006 When assessing the probative value of propensity evidence, the judge may consider the following matters,

• with regards to the Acts, Omissions, Event or Circumstances which are the subject of the evidence,
• and the Acts, Omissions, Event or Circumstances which constitute the offence for which the defendant is being tried:

a) The frequency which they occurred
b) The connection in time between the two
c) The extent of similarity between the two
d) The number of persons making allegations against the defendant that are the same as, or are similar to, the subject of the offence for which the defendant is being tried:
e) Whether the allegations described in paragraph (d) may be the result of collusion or suggestibility:
f) The extent to which they are unusual

Question 23

Intent to deceive is not disclosed merely because there is

Answer 23

• delay or non-payment of the debt, or
• an inability to perform a bona fide intention

Question 24

The term credit means: (a) Credit obtained for a third person (b) All transactions where goods are obtained using a credit card (c) An obligation to pay or repay with time in which to pay

Answer 24

(c) An obligation to pay or repay with time in which to pay

Question 25

A senior executive of a company who is acting on behalf of the company commits a series of deceptions causing other companies to sustain financial losses. In these circumstances any criminal liability rests with: (a) Both the senior executive and the company as the actions of the executive are said to be the actions and state of mind of the company (b) The senior executive only as the state of mind for the offending was his alone (c) The company only as the actions benefited the company

Answer 25

(c) The company only as the actions benefited the company

Question 26

A person can only be charged under section 249(1) in relation to accessing a computer system for dishonest purpose when: (a) Access has been gained with an intent to gain financially (b) Information was downloaded about another person’s financial account (c) He/she actually obtained any property, or privilege, service, pecuniary advantage, benefit or valuable consideration or loss to any other person

Answer 26

(c) He/she actually obtained any property, or privilege, service, pecuniary advantage, benefit or valuable consideration or loss to any other person

Question 27

When is title obtained? A) when the innocent receiver is given the title from the thief without knowing B) when the innocent receiver is given title where the property was obtained by deception but has not been voided by the deceived owner

Answer 27

B) when the innocent receiver is given title where the property was obtained by deception but has not been voided by the deceived owner

Question 28

What must exist in relation to Debt & Liability in Deception?

Answer 28

Debt and liability must be legally enforceable

Question 29

An item is located at John’s property. What must be proved in relation to possession? A) That he had exercised control over it in the past B) That he has physical control over it C) He has readily access to it

Answer 29

C) He has readily access to it

Question 30

Three (3) examples of where credit may be obtained by a 3rd person?

Answer 30

Obtaining money on loan

Extending existing overdraft facilities

Renting or leasing a dwelling

Question 31

Both possession and title will pass on to a bona fide or innocent purchaser: (a) When property is brought from a thief if the purchaser had no knowledge that the property had been previously stolen (b) When the property is brought by a third party from a person who obtained it by deception before the original owner voids any title (c) When property is brought by a third party who has no knowledge that the property was obtained by deception by the seller

Answer 31

(b) When the property is brought by a third party from a person who obtained it by deception before the original owner voids any title

Question 32

In relation to the offence of obtaining credit by deception under section 240(1)(b) of the crimes act 1961, which of the following statements is not correct:

(a) A debt or liability must have been incurred at the time credit is obtained
(b) The debt or liability must be legally enforceable
(c) Under the definition of obtain in s217 of the crimes act 1961. It is not sufficient that the accused obtained the extension of credit to another person

Answer 32

(c) Under the definition of obtain in s217 of the crimes act 1961. It is not sufficient that the accused obtained the extension of credit to another person

Question 33

A person can be said to have control of a thing if: (a) It is proved that the accused did in fact exercise some control over the thing (b) It is proved that the accused had possession of the thing (c) The property was found at the premises over which the accused had control

Answer 33

(a) It is proved that the accused did in fact exercise some control over the thing

Question 34

For propensity evidence to be admissible the ultimate issue is: (a) The degree to which the probative value of the evidence outweighs the prejudicial effect (b) The weight that the court attaches to the propensity evidence (c) The degree to which the prejudicial effect of the evidence outweighs the probative value

Answer 34

(a) The degree to which the probative value of the evidence outweighs the prejudicial effect

Question 35

The case Hayes v R defined a pecuniary advantage as: (a) Obtaining compensation or a fee (b) Anything enhancing a person’s financial position (c) Obtaining money or goods

Answer 35

(b) Anything enhancing a person’s financial position

Question 36

What was held in R v Crooks in relation to knowledge (a) The accused is not liable if their conduct has amounted to willful blindness of the circumstances as they exist (b) The accused may be liable if their conduct has amounted to wilful blindness and thus is equated to knowledge (c) The accused is liable if they are reckless as to the circumstances and continue their course of action Regardless

Answer 36

(b) The accused may be liable if their conduct has amounted to wilful blindness and thus is equated to knowledge

Question 37

An offender hires a drill from the shop using false details, the drill is found at his home some months later and he claims he was going to return it but didn’t get around to it. What is the most appropriate offence and who has title of the drill?

Answer 37

Obtains by Deception – s240(1)(a), C.A 1961. The shop owner has title of the drill as he did not fully part with the drill as the drill was for hire and not sold to the offender.

Question 38

Paul is a 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 his bills. Paul thinks he can trade his way out of the financial difficulty. Is Paul criminally liable for deception?

Answer 38

Paul has committed no offence as he thinks he can trade his way out of the financial difficulty as the problem is a result of delays caused by his suppliers in making the windows for his clients.

Question 39

What are the essential ingredients of forgery as set out in s256(1), C.A 1961

Answer 39

Every one 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 40

Apart from false representation, what matters would constitute a deception as defined under s240(2), C.A 1961?

Answer 40

• There was an intent to deceive
• That there was a representation made by the offender
• An omission to disclose a material particular, with intent to deceive any person, in circumstances where there is a duty to disclose it
• A fraudulent device, trick or strategy used with intent to deceive any person

Question 41

When interviewing an offender who alleges they have been defrauded (stolen credit card or cheque), what 2 questions should be asked by the investigator?

Answer 41

• Find out the identity used by the offender
• Obtain descriptions of the offender, the property obtained and the vehicle used

Question 42

What is the definition of deception in 240(2)?

Answer 42

(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 it to be 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 43

What are the essential ingredients of s228, C.A 1961, Takes or Using a Document?

Answer 43

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 44

. What was held in R v Morley relating to s240(2) in relation to intention to deceive?

Answer 44

An intention to deceive requires that the deception is practiced in order to deceive the affected party. Purposeful intent must exist at the time of the deception.

Question 45

You are investigating a series of cheque fraud where an account has been opened and a cheque book obtained using fictitious details. Apart from the normal bank inquiries in relation to cheque offences, list 4 possible enquiries you should make regarding the offender opening the account with the bank.

Answer 45

• 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 46

You are investigating a series of cheque fraud where an account has been opened and a cheque book obtained using fictitious details. Apart from the normal bank inquiries in relation to cheque offences, list 4 possible enquiries you should make regarding the offender opening the account with the bank.

Answer 46

• 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 47

What are the ingredients of Obtaining Credit By Deception – s240(1)(b), C.A1961?

Answer 47

Everyone is guilty of an offence who:

1. 1 By any deception
2. 2 And without claim of right
3. 3 In incurring any debt or Liability
4. 4 Obtains Credit

Question 48

When investigating company fraud, what sources of information must you canvass early to assist you in your investigations? MNLPFC

Answer 48

1. Police - Police forensic accountants at Auckland, Wellington and Christchurch are available to give you advice and, if necessary, to assist personally. Legal Section can be of particular help in preparing production orders, search warrants and charges.
2. Ministry of Business, Innovation & Employment: • Registrar of Companies • Companies Office • Official assignee • Insolvency Services
3. Commerce Commission: The Commerce Commission can assist in matters relating to: • the Fair Trading Act 1986, • pyramid selling
4. Financial Markets Authority: can assist in matters relating to the Financial Markets Authority Act 2011 and the issuing of prospectuses.
5. NZ Customs: can assist in matters involving international travel and CAPPS alerts.
6. Liquidators & receivers: These administer companies that are in liquidation or receivership. They are usually accountants.

Question 49

Roberts car in the local garage having been repaired. Robert could not afford to pay for the repair before getting the car back. Knowing that he does have funds in his account to cover the cost of the repairs, he hands over a cheque to the repairer and received the car in return. He drives home: a) Robert has stolen the vehicle, as someone else has a special property or interest in it b) Robert has obtained the vehicle by deception, as someone else has a special property or interest in it c) Robert has neither stolen the vehicle nor obtained it by deception; a contractor’s lien over the vehicle does not afford him any right to withhold the vehicle from the rightful owner.

Answer 49

b) Robert has obtained the vehicle by deception, as someone else has a special property or interest in it

Question 50

2. Claim of right in relation to any act means: a) An honest belief that the act is justifiable b) A belief at the time of the act in a proprietary or possessory right in property c) An honest but mistaken belief that they had a proprietary or possessory right in property

Answer 50

b) A belief at the time of the act in a proprietary or possessory right in property

Question 51

To prove a charge of theft by a person in a special relationship under section 220(1), it is necessary to prove that the person knew they had to: a) Account to any other person for the property, or for any proceeds arising from the property b) Account to any other person for the proceeds of the sale of stolen property c) Account to any other person for the property only and not the proceeds

Answer 51

a) Account to any other person for the property, or for any proceeds arising from the property

Question 52

The case R v Morley (2009) NZCA 618 discussed the matter of loss in relation to s240(1)(d) Crimes Act 1961 (causing loss by deception). Which statement best describes what was held in this matter: a) The loss caused by deception can be in the nature of an indirect loss, such as an expectation loss (loss of a bargain) of loss of anticipated future profits b) The deception must have been made to the person actually delivering over the property c) The prosecution must prove that the loss alleged by the victim must have been induced by, or caused in reliance, upon the deception

Answer 52

c) The prosecution must prove that the loss alleged by the victim must have been induced by, or caused in reliance, upon the deception

Question 53

Brown booked into a motel and on checking in he offered to pay in advance. He was told that he could pay the account in the morning. He left early without checking out or paying. What is Brown’s liability? a) Obtaining a service by deception b) Obtaining credit by deception c) No offence is committed

Answer 53

c) No offence is committed

Question 54

For a charge under section 240(1) (b) of the Crimes Act 1961 (obtaining credit by deception), the obligation to repay means: a) The obligation to repay must be a legally enforceable one b) The obligation to repay can be merely a moral obligation c) The obligation to repay is only applicable when there is a written agreement

Answer 54

a) The obligation to repay must be a legally enforceable one

Question 55

A fraudulent device, trick or stratagem used with intent to deceive any person must be: a) Fraudulent and both morally and ethically wrong

b) Fraudulent, meaning dishonest in the traditional sense
c) Fraudulent and morally wrong

Answer 55

b) Fraudulent, meaning dishonest in the traditional sense

Question 56

False document includes a document of which the whole or any material part purports to be made:

a) By a person who did not authorise its making
b) By a fictitious person
c) Both of the above are correct

Answer 56

c) Both of the above are correct

Question 57

The serious fraud office investigates serious or complex fraud complaints. An investigator from that office may only make an arrest of a fraud suspect:

a) If the fraud complaint has an actual or potential loss in excess of $2,000.00
b) If they are accompanied by a sworn Police employee who will witness the arrest
c) Under no circumstances as the investigator does not have powers of arrest

Answer 57

c) Under no circumstances as the investigator does not have powers of arrest

Question 58

What is meant by the terms referred to in s240(1)(b), C.A 1961? (p29) Debt & Liability

Answer 58

Debt – money owing from one person to another Liability – means a legally enforceable financial obligation to pay, such as the costs of a meal.

Question 59

Where a person is induced to part with goods, by deception, what are 2 steps they could take to avoid the offenders title?

Answer 59

Advising the offender by letter or in person that they are aware of the deception, If the offender cannot be contacted, a public notice in the newspaper will be sufficient Make a complaint to Police about the deception

Question 60

To successfully prosecute a person on a charge of using an altered or reproduced a document with intent to deceive, under s259, C.A 1961, name 3 mental elements you must prove?

Answer 60

Firstly that the document had been altered with intent to deceive.

Secondly, 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,

Thirdly, there must be an intention to acquire or retain the property etc, or to cause loss, “by deception”.

Question 61

How is the term representation interpreted (not defined) by the Courts. State the case law

Answer 61

Simester and Brookbanks, Principles of Law :

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

Examples have included representations about a past or present fact, about a future event or about an existing intention, opinion, belief, knowledge, or other state of mind.

Question 62

CARLOS v R

Answer 62

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 63

An offender knowingly presents to the retailer an item with 2 price tags for different amounts aware the higher amount is the correct price, he shows the lower price to the check out operator and obtains the lower price. He is apprehended 2 days later for this offence.

(a) What offence is committed?
(b) Who has title to the item?

Answer 63

Obtains property by Deception

The offender although the title is a voidable title.

Question 64

An offender knowingly presents to the retailer an item with 2 price tags for different amounts aware the higher amount is the correct price, he shows the lower price to the check out operator and obtains the lower price. He is apprehended 2 days later for this offence. (a) What offence is committed? (b) Who has title to the item?

Answer 64

Obtains property by Deception The offender although the title is a voidable title.

Question 65

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? (p16)

Answer 65

Prosecution must prove: the defendant knows or believes that the Material Particular to be false or is reckless as to whether it is false.

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.

Material particular means of an important, essential or relevant detail or item. “Something important or that matters” Rv MALLET

Question 66

. Investigations into company fraud complaints will usually involve enquiries with the Ministry of Commerce. State 4 other possible sources there? (p24 – Deception Link)

Answer 66

• Registrar of Companies • Companies Office • Official Assignee • Insolvency Services

Question 67

(a) What knowledge must an Accused person have to be liable for making a false representation? (p20)
(b) How can knowledge be established?

Answer 67

(a) The Defendant must know that the representation was false in a material particular or be reckless whether its falsity.

Absolute certainty is not required and wilful blindness as to the falsity of the statement will suffice (Rv CROOKS) pg16

(b)

• An admission
• Implication from the circumstances surrounding the event
• Propensity evidence

Question 68

Definition for the term computer system is defined in s248, C.A 1961.

Answer 68

S248 - computer system — (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 69

Propensity evidence maybe relevant in some deception cases. When may evidence of propensity be called in cases of deception? (p41)

Answer 69

Propensity evidence,

• whether on previous or later occasions to the offence charged,
• is admissible in cases of deception where there is a
• sufficiently strong connection between the offences.

Adams on Criminal Law-

Persistent dishonesty offending across the board, emracing number of offences will not in itself bring the propensity rule into play. More likely to be deployed in cases involving specific offences with a discernable methodology or pattern.

Question 70

When does someone obtain ownership of property?

1. At the time of posting after an agreement has been made
2. When the item has been delivered to the reciever
3. As soon as the agreement as been made

Answer 70

1. At the time of posting after the agreement

Question 71

Section 116 & 117 of the Crimes Act 1961 speak of Conspiring to defeat the course of justice and currupting juries and witnesses. Does a prosecution need to start already?

Answer 71

The offence of conspiring to defeat justice extends to include conduct intended to affect whether or not proceedings will ever be started.

It also includes situations where a victim is discourgaed to make a complaint or,

where false statements are made so as to enage police in the task of investigating a complaint which would otherwise not be persued.

Question 72

Assisting in the disposal or concealment of property. Is this an act of recieving?

Answer 72

Yes. However must prove actual assistance and guilty knowledge.

The recieer need not have physically dealt with or actually obtained possession of said property. Acting as an intermediary or assisting in the sale of said property for a share of the proceeds is sufficient so long as it can be either shown:

• the defendant aquired (joint or sole) possession or control
• they aided in concealing or disposing of the property