Deception CIB 008 - updated July 2017

Question 1

Crimes Act definition of Obtain.

Answer 1

s217, CA 1961

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

Question 2

Crimes Act definition of property.

Answer 2

s2, CA 1961
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.

Answer 3

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

Question 4

Define valuable consideration.

Answer 4

Hayes v R
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.

Question 5

Crimes Act definition of ‘dishonestly’.

Answer 5

Dishonestly
s217, CA 1961
In relation to an act or omission, means done or omitted without a belief that there was express or implied consent to, or authority for, the act or omission from a person entitled to give such consent or authority.

Question 6

Claim of right

Answer 6

s2, CA 1961
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 ‘takes’.

Answer 7

s219(4), CA 1961

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

Question 8

Crimes Act definition of ‘document’.

Answer 8

Document
s217, CA 1961
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

Question 9

Case law relevant to the discussion of the element of ‘uses or attempts to use any document’ in s228(b).

Answer 9

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

Definition of ‘deception’.

Answer 10

Deception
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;
(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

R v Morley

Answer 11

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

Question 12

R v Laverty

Answer 12

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 13

Case law to define possession.

Answer 13

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 14

Liability definition of debt.

Answer 14

Money owing from one person to another.

Question 15

Definition of liability.

Answer 15

Legally enforceable financial obligation to pay.

Question 16

Fisher v Raven

Answer 16

Fisher v Raven
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 17

Define ‘person’ in s240(1)(d).

Answer 17

Person

Gender neutral. Proved by judicial notice or circumstantial evidence.

Question 18

How is service defined in R v Cara?

Answer 18

Service is limited to financial or economical value and excludes privileges or benefits.

Question 19

In regards to the definition of dishonesty, the defendant can raise reasonable doubt on the basis of a mistaken belief. What are the two kinds of mistaken belief?

Answer 19

• 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.

Question 20

In regards to the concept of claim of right, what is important to remember in relation to timing?

Answer 20

The belief must be held at the time of the conduct alleged to constitute the offence.

Question 21

Legislation for attempts.

Answer 21

s72(1), CA 1961
Everyone 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 22

What is required to prove a deception?

Answer 22

• That there was an intent to deceive
• That there was a representation by the defendant
• That the representation was false
• 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 23

Explain the concept of ‘continuing effect’ in relation to a representation. Provide an example.

Answer 23

In many cases a representation by words or conduct may have a continuing effect. Eg. Entering a restaurant and ordering a meal represents that the diner will follow the normal practice and pay for the meal.

Question 24

As a general rule, silence or non-disclosure will not be regarded as a representation. Explain one exception to this rule with an example.

Answer 24

Where an incorrect understanding is implied from a course of dealing and the defendant has failed to negate that incorrect understanding.

Eg. Police v Dronjak
Defendant was shopping in department store. Told by assistant that car radio was $695.83. Told assistant he would pay at checkout. By the time he got to checkout it had two price tags, the other for $38.88 (no evidence he tampered with tags). Defendant allowed cashier to charge incorrect price.

Question 25

In regards to a deception, the prosecution must prove that the defendant knew that the representation was false in a material particular or was reckless as to its falsity. How can knowledge be established?

Answer 25

By

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

Question 26

How is recklessness defined in R v Harney?

Answer 26

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

Question 27

Explain the subjective/objective test in regards to recklessness.

Answer 27

It must be proved that the defendant

• was aware of the risk and proceeded regardless (subjective)
• that it was unreasonable for him to do so (objective)

Question 28

In terms of s240(2) there must be an intent to deceive. What else is required to be shown under s240(2)(b)?

Answer 28

• That there was some material particular that was not disclosed
• That the defendant was under a duty to disclose
• That the defendant failed to perform that duty

Question 29

Define the term ‘lien’.

Answer 29

A right over another person’s property to protect a debt charged on that property.

Question 30

If dishonestly obtained property is found on the premises of which the defendant has control, is that sufficient to prove control?

Answer 30

No. It must be proved that they defendant exercised some control over it. (Adams on Criminal Law, 2001)

Question 31

Case law in regards to the timing of the intention to deceive.

Answer 31

R v McKay

Credit had been obtained but at that time the accused did not possess an intent to deceive.

Question 32

List the elements of s240(1)(c), including the title.

Answer 32

Obtaining by deception or causing loss by deception

By any deception and without claim of right 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.

Question 33

What needs and does not need to be proved under s240(1)(d)?

Answer 33

The prosecution must prove

• that the loss was caused by a deception
• that it was reasonably foreseeable some more than trivial loss would occur

But need not prove that the loss was intentionally caused.

Question 34

Outline the penalties for deception offences.

Answer 34

If the loss caused or the value of what is obtained or sought to be obtained

• $1000+ = max 7yrs
• $500-$1000 = max 1yr
• less than $500 = max 3mths

Question 35

What is the meaning of the term ‘propensity evidence’ as it is used in s40, 41 and 43, Evidence Act 2006? It is defined in s40(1)(a) and (b).

Answer 35

(a) means evidence that tends to show a person’s propensity to act in a particular way or to have a particular state of mind, being evidence of acts, omissions, events or circumstances with which a person is alleged to have been involved; but
(b) does not include evidence of an act or omission that is -
(i) one of the elements of the offence for which the person is being tried; or
(ii) the cause of action in the proceeding in question.

Question 36

What does s43(1) say about ‘probative value’?

Answer 36

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 37

When assessing the prejudicial effect of evidence on the defendant, the Judge must consider what?

Answer 37

(a) whether the evidence is likely to unfairly predispose the fact-finder against the defendant; and
(b) whether the fact-finder will tend to give disproportionate weight in reaching a verdict to evidence of other acts or omissions.

Question 38

What is the term given to a title obtained by deception, fraud, duress or misrepresentation?

Answer 38

Voidable title

Question 39

What is necessary to avoid title?

Answer 39

• Communication with the deceiver to advise them that you are aware of the deception. Can be by letter or in person. If they cannot be contacted a public notice in the newspaper is sufficient.
  OR
• Making a complaint to police that the property was obtained by deception.

Question 40

What are the two core elements that need to be proved under s220, CA 1961?

Answer 40

• 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
• the defendant intentionally departed from the relevant obligation.

Question 41

Forgery, s256(1) and (2), CA 1961

Answer 41

(1) 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.
(2) Every one is liable to imprisonment for a term not exceeding 3 years who makes a false document, knowing it to be false, with the intent that it in any way may be used or acted upon, whether in New Zealand or elsewhere, as genuine.

Question 42

When is a forgery complete?

Answer 42

As soon as the document is made with the intent in (1) or the knowledge and intent in (2).

Question 43

List the elements of Using forged document, s257(1), CA 1961.

Answer 43

Knowing a document to be forged, -

(a) uses the document to obtain any property, privilege, service, pecuniary advantage, benefit, or valuable consideration; or
(b) uses, deals with, or acts upon the document as if it were genuine; or
(c) causes any other person to use, deal with, or act upon it as if it were genuine.

Question 44

List the elements of Altering, concealing, destroying, or reproducing document with intent to deceive, s258(1), CA 1961.

Answer 44

With intent to obtain by deception any property, privilege, service, pecuniary advantage, benefit, or valuable consideration, or to cause loss to any other person, -

(a) alters, conceals, or destroys any document, or causes any document to be altered, concealed or destroyed; or
(b) makes a document or causes a document to be made that is, in whole or in part, a reproduction of any other document.

Question 45

What are the two mental elements of s258, Altering, concealing, destroying, or reproducing document with intent to deceive?

Answer 45

• An intention to obtain by deception any property, privilege, service, pecuniary advantage, benefit or valuable consideration
• An intention to cause loss to any other person

Question 46

List the elements of s259(1), Using altered or reproduced document with intent to deceive.

Answer 46

Knowing any document to have been made or altered in the manner and with the intent referred to in s258, with intent to obtain by deception any property, privilege, service, pecuniary advantage, benefit or valuable consideration, or to cause loss to any other person, -

(a) uses or deals with or acts upon the document; or
(b) causes any person to use or deal with or act upon the document.

Question 47

List the elements of Accessing computer systems for dishonest purposes, s249(2). CA 1961.

Answer 47

Directly or indirectly accesses any computer system with intent, dishonestly or by deception, and without claim of right; -

(a) to obtain any property, privilege, service, pecuniary advantage, benefit or valuable consideration; or
(b) to cause loss to any other person.

Question 48

Before beginning an investigation into credit card and cheque offences, which external agency should you consult first?

Answer 48

The bank’s fraud investigators.

Question 49

Briefly describe the four categories of company fraud.

Answer 49

Category A - large scale thefts and other dishonesty offences against employers by employees

B - Dishonesty offences committed against financial institutions by people outside the institution obtaining money from it through deception and GST fraud against the IRD by businesses.

C - Commercial fraud committed against the public by people who, either as individuals or through the guise of a company, entice people to invest money.

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

Question 50

List six sources that may be able to assist in a company fraud investigation and outline the type of assistance they can offer.

Answer 50

• Police accountants and legal officers: Police forensic accountants at Auck, Wgtn and Chch are available to give you advice and assist personally. Legal Section can prepare POs, SWs and charges.
• MBIE (Ministry of Business, Innovation and Employment): Possible sources of information are Registrar of Companies, Companies Office, Official assignee, Insolvency Services.
• Commerce Commission: Can assist in matters relating to the Fair Trading Act 1986, pyramid selling.
• Financial Markets Authority: Can assist in matters relating to the Financial Markets Authority Act 2011 and issuing of prospectuses.
• NZ Customs: Can assist in matters involving international travel and CAPPS alert.
• Liquidators and receivers: These administer companies that are in liquidation or receivership. Usually accountants.

Question 51

What is the criteria for a fraud to be handed over to the Serious Fraud Office?

Answer 51

• Actual or potential loss in excess of $2,000,000
• Where the facts, law or evidence is of great complexity
• Of great interest or concern (eg. involving a public figure)

Question 52

Define the term ‘device’.

Answer 52

A plan, scheme or trick.

Question 53

Define the term ‘trick’.

Answer 53

An action, scheme undertaken to fool, outwit or deceive.

Question 54

Define the term ‘stratagem’.

Answer 54

A cunning plan or scheme especially for deceiving an enemy or trickery.

Question 55

List six things the Judge may consider when assessing the probative value of propensity evidence.

Answer 55

a) frequency with which the acts, omissions, events, circumstances which are subject of the evidence have occurred
b) connection in time between acts, omissions etc. which are subject of evidence and the acts, omissions etc. which constitute the offence for which defendant is being tried
c) extent of the similarity between the two
d) number of persons making allegations against the defendant that are the same as, or similar to, the subject of the offence for which defendant is being tried
e) whether allegations described in paragraph (d) nay be result of collusion or suggestibility
f) extent to which the acts, omissions etc. which are subject of evidence and acts, omissions etc. which constitute offence are unusual

Question 56

Define computer system.

Answer 56

Computer system

(a) means
(i) a computer; or
(ii) two or more interconnected computers; or
(iii) any communication links between computers or to remote terminals or another device; or
(iv) two 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 57

Explain how a company can be guilty of a criminal offence.

Answer 57

When a senior executive of the company, acting on behalf of the company, commits an offence.

The executive is also personally liable for their actions.

The company is the principal offender and the executive is liable as a party.

Question 58

When arresting on behalf of the Serious Fraud Office, explain the roles of each organisation.

Answer 58

SFO do not have power of arrest. Police arrest. SFO prepares file and is responsible for prosecution. Police must never represent the SFO in Court.

Question 59

Explain the difference between the offence of forgery and the offence of altering, concealing, destroying or reproducing a document.

Answer 59

Any doc can be altered etc but in a forgery the doc must be a false doc.

Question 60

R v Morley regarding the element of representation in s240(2).

Answer 60

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

Question 61

Case law relevant to the element of Dishonestly.

Answer 61

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 62

Case law relating to definition of document.

Answer 62

R v Misic

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