Deception definitions

Question 1

Intent

Answer 1

Intent

In a criminal law context there are two specific types of intention in an offence. Firstly there must be an intention to commit the act and secondly, an intention to get a specific result.

Question 2

Obtain

Answer 2

Obtain
s.217, CA 61

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

Question 3

Property

Answer 3

Property
s.2, CA 61

Property includes any 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 4

Service

Answer 4

Service

Not defined in the Crimes Act 1961.

In R v Cara it is directed that Service is limited to financial or economic value, and excludes privileges or benefits.

Question 5

Pecuniary Advantage

Answer 5

Pecuniary Advantage

Basically, means an economic or monetary advantage.

Question 6

Dishonestly

Answer 6

Dishonestly
s.217, CA 61

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 7

Claim of Right

Answer 7

Claim of Right
s.2, CA 61

In relation to any act there must be a belief at the time of the act in a proprietary or possessory right in the 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.

Question 8

Takes

Answer 8

Takes
s.219(4), CA 61

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

Question 9

Document

Answer 9

Document
s.217, CA 61

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 can be stored or reproduced.

Question 10

Uses or Attempts to Use

Answer 10

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.

Question 11

Deception

Answer 11

Deception
s.240(2), CA 61

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 a duty to disclose it OR
c) A fraudulent device, trick, or stratagem used with intent to deceive any person.

Question 12

False Representation

Answer 12

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 willful blindness as to the falsity of the statement will suffice.

Question 13

Intent to Deceive (representation is false)

Answer 13

Intent to Deceive

The offender must know representation is false and intend the other person to act upon it as genuine.

Question 14

Ownership

Answer 14

Ownership

Ownership is synonymous with the concept of title.

Question 15

Possession

Answer 15

Possession

May be actual or potential.

Question 16

Actual Possession

Answer 16

Actual Possession

Actual possession arises where the thing in question is in a person’s physical custody or control.

Question 17

Potential Possession

Answer 17

Potential Possession

Potential possession arises when the person has the potential to have the thing in question in their control.

Question 18

Privilege OR Benefit

Answer 18

Privilege OR Benefit

Special right or advantage.

Question 19

Debt

Answer 19

Debt

Money owing from one person to another.

Question 20

Liability

Answer 20

Liability

Legally enforceable financial obligation to pay.

Question 21

Credit

Answer 21

Credit

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.

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

Question 22

Loss

Answer 22

Loss

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

The loss caused by deception must be in the nature of a direct loss. Does not include indirect losses such as expectation of loss and loss of anticipated future profits.

Question 23

Person

Answer 23

Person

Gender neutral. Accepted by judicial notice or proven by circumstantial evidence.

Question 24

Person (s.2)

Answer 24

Person
s.2, CA 61

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 person, 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 25

Knowledge can be established by

Answer 25

Knowledge can be established by:

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

Question 26

False in material particular

Answer 26

False in material particular

Material particular is not defined in the Crimes Act 1961 and can be given its usual meaning of an important, essential or relevant detail or item.

A minor detail may amount to a ‘material particular’ if its of a consequence to the case. The question of materiality will be assessed objectively.

Question 27

Fraudulent Device, trick or strategem

Answer 27

Fraudulent device, trick or stratagem
s.240(2)(c), CA 61

Concerns a fraudulent device, trick or stratagem used with intent to deceive any person.

Note too that the trick or scheme must be “fraudulent” and here this means dishonest in the traditional moral sense.

Question 28

Device

Answer 28

Device

A ‘plan, scheme or trick’.

Question 29

Trick

Answer 29

Trick

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

Question 30

Stratagem

Answer 30

Stratagem

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

Question 31

Induces

Answer 31

Induces

The oxford dictionary definition is “to persuade, bring about or give rise to”.

Question 32

Propensity

Answer 32

Propensity

Propensity evidence may also be used to disapprove a defence of mistake or innocent intention.

Question 33

Propensity s.43, EA 06

Answer 33

Propensity
s.43, Evidence Act 2006

1. Prosecution may offer propensity evidence about a Defendant only if the evidence has a probative value in relation to an issue in dispute which outweigh the risk that the evidence may have an unfairly prejudicial effect on the Defendant.
2. When assessing the probative value of propensity evidence the Judge must take into account the nature of the issue in dispute.

3.
(a) The frequency with which the acts have occurred.

(b) The connection in time between the acts and the offence for which the Defendant is being tried.
(c) The extent of the similarity between the acts.
(d) The number of persons making allegations against the Defendant that are the same.
(e) Whether the allegations may be the result of collusion or suggestibility.
(f) The extent to which the acts are unusual.

Question 34

Admissibility and Relevance

Answer 34

Admissibility and Relevance

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.

Question 35

Title

Answer 35

Title

Title simply means a legal right to the property.

Question 36

The difference between theft and obtains by deception (Possession and title)

Answer 36

The difference between theft and obtains by deception (Possession and title)

With theft you can obtain possession but not title of the property.

When you obtain something by deception you can obtain possession and good title over it.

Question 37

Voidable title

Answer 37

Voidable title

Title obtained by deception. This means the title can be avoided by the seller.

If an innocent purchaser buys goods obtained by deception, before title has been avoided, then he or she is entitled to good title.

Question 38

What is necessary to avoid title

Answer 38

What is necessary to avoid title

• Communicate with the offenders
• Take all other possible steps to bring it to the offender’s notice, eg writing a letter
• Advise Police that the item was obtained by deception

Question 39

Theft by person in special relationship

Answer 39

Theft by person in special relationship
s.220, CA 61

Means that there may be an offence under s.220 where the Defendant has intentionally:

• Failed to account to any other person for property received by the Defendant.
• Failed to account to any other person for the proceeds of property received by the Defendant.
• Dealt with property received by the Defendant otherwise than in accordance with the requirements of some other person.
• Dealt with the proceeds of the property received by the Defendant otherwise than in accordance with the requirements of some other person.

Question 40

Two core elements of proof required

Answer 40

Two core elements of proof required
s.220, CA 61

(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 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 41

Forgery

Answer 41

Forgery
s.256, CA 61
10 years

(1) Everyone who makes a false document with the intention of using it to obtain any property, privilege, service, pecuniary advantage, benefit or valuable consideration.
(2) Everyone who makes a false document knowing it to be false with the intent that it in any way be used or acted upon whether in NZ or elsewhere.
(3) Forgery is complete as soon as the document is made with the intent described in subsection (1) or with knowledge and intent described in (2).

Question 42

False Document

Answer 42

False Document

A false document is defined under section 255.

a) Means a document of which the whole or any material part purports to be made by any person who did not make it or by a fictitious person OR
b) Made by or on behalf of any person who did not authorise its making or on behalf of a fictitious person.

You can make a false document by making any material alteration to a genuine document. This is forgery under section 256.

Alterations include:

• Additions
• Insertions
• Deletions
• Obliterations
• Erasures
• Removal of material or otherwise

Question 43

Mental element of section 259

Answer 43

Mental element of section 259 - Using altered or reproduced document with intent to deceive

1. Firstly, the Defendant must know the relevant matters relating to the document in question - that is, that the document had been altered with intent to deceive.
2. 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.
3. Thirdly, there must be an intention to acquire or retain the property etc or to cause loss, by deception.

Question 44

Forgery vs Altering

Answer 44

Forgery vs Altering

The differences rest in the varying definitions of Document and intent.

With forgery an intent to deceive is only required, not an intent to obtain by deception.

In the offence of altering etc, you must prove that the offender intended to obtain by deception.

Any document can be altered in the charge of altering etc, however in the charge of forgery the document must be a “false document”.

Question 45

Computer system

Answer 45

Computer system
s.248, CA 61

Means:

1. A computer; OR
2. 2 or more interconnected computers; OR
3. Any communication links between computers or to remote terminals or another device; OR
4. 2 or more interconnected computers combined with any communication links between computers or to remote terminals or any other device; AND

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 46

Access

Answer 46

Access

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

Question 47

Accessing a computer system for dishonest purpose

Answer 47

Accessing a computer system for dishonest purpose
s.249, CA 61

(1) Everyone is liable to imprisonment for a term not exceeding 7 years who directly or indirectly, accesses any computer system and thereby, dishonestly or by deception and without claim of right:
(a) Obtains any property, privilege, service, pecuniary advantage, benefit or valuable consideration; OR
(b) Causes loss to any other person.
(2) Everyone is liable to imprisonment for a term not exceeding 5 years who, directly or indirectly, accesses any computer system with intent, dishonestly or by deception and without claim of right - (a) or (b)

Question 48

Distinction between

Answer 48

Distinction between
s.249(1) and s.249(2)

s.249(1) is directed at situations where a person has actually accessed a computer system, obtains the offending material or causes loss, whereas s.249(2) is directed at someone who actually accesses a computer system with that intent regardless of the result.

Question 49

Offending carried out from remote locations

Answer 49

Offending carried out from remote locations

A person is not required to be physically present in order to access a computer system.

Question 50

Interviewing

Answer 50

Interviewing - Contact the account manager at the bank where the account is domiciled and find out.

• The account holders full name
• The date the account was opened
• The account history and how it has been operated
• The date the cheque book or credit card was reported missing
• How and by whom a loss was reported.

Question 51

When an account has been opened with fictitious details, find out

Answer 51

When an account has been opened with fictitious details, find out:

• 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
• The serial numbers of the cheques supplied.

Question 52

Company Fraud

Answer 52

Company Fraud - Types of investigation

Category A: Large scale thefts and other dishonesty offences against employers by employees.

Category B: Dishonesty offences committed against financial institutions by people outside the institution obtaining money from it through deception.

Category C: Commercial fraud committed against the public.

Category D: Dishonesty offences committed by professional people in a position of trust.

Question 53

Resources

Answer 53

Resources - Source and Type of potential assistance

Police accountants and legal officers:

• Give advice and able to assist personally. Legal section can be of particular help in preparing production orders, search warrants and charges.

Ministry of Business - Sources of information

• Registrar of companies
• Companies office
• Official assignee
• Insolvency services

Commerce Commission - Assist with

• The Fair-Trading Act 1986

Pyramid selling

Financial Markets Authority

• Assist with matters relating to financial markets authority act 2011 and the issues of prospectuses

NZ Customs

• Matter involving international travel and CAPPS alerts

Question 54

Arrests of behalf of the Serious Fraud Office

Answer 54

Arrests of Behalf of the Serious Fraud Office

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

Question 55

Claim of Right - Nature of belief required

Answer 55

Claim of Right - Nature of belief required

First - the belief must be a belief in a proprietary or possessory right in property.

Second - 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. The belief is not required to be reasonable or reasonably held.

Question 56

Continuing effect

Answer 56

Continuing effect

In many cases a representation by words or conduct may have a 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 s.240.

Question 57

Attempts s.72

Answer 57

72Attempts

(1)
Every one who, having an intent to commit an offence, does or omits an act for the purpose of accomplishing his or her object, is guilty of an attempt to commit the offence intended, whether in the circumstances it was possible to commit the offence or not.

(2)
The question whether an act done or omitted with intent to commit an offence is or is not only preparation for the commission of that offence, and too remote to constitute an attempt to commit it, is a question of law.

(3)
An act done or omitted with intent to commit an offence may constitute an attempt if it is immediately or proximately connected with the intended offence, whether or not there was any act unequivocally showing the intent to commit that offence.

Question 58

Goods are ‘obtained’ by a defendant if the goods come under their control, even though they may not have physical possession of them.
In the matter of an agreement by one to forward an item by post to another, when is “obtaining” complete?

Answer 58

Where there is agreement that the sending of some item (eg a cheque by post)
shall complete a transaction, the ‘obtaining’ is complete at the time of
posting.

Question 59

Hire purchase

Answer 59

Where goods are obtained on hire purchase by a false 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 receives title for goods
fraudulently obtained on hire purchase.

Question 60

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?

Answer 60

BROWN’S liability will come within Deception s.240.

BROWN’S actions involves continuing representation becoming false due to avoiding payment.

BROWN’S actions relate to:

R v Mckay
On appeal it was held that the credit had been obtained on booking in but at that
time the accused did not possess an intent to deceive.

Question 61

Scenario Three:
Obtained by
deception

Answer 61

B buys a car from A by writing a valueless cheque.
In this situation, B obtains possession of the car and title because A intends to
pass over the title.
However, because A’s consent has been obtained by deception, B’s title can
be regarded as voidable.
In other words, his title can be avoided or rendered invalid by A.
In this example, B has a good title until it is voided by A. When that happens
B has no title at all.
To avoid the title, A must do one of the following:
• communicate with B
• take all other possible steps to bring it to B’s notice, eg by writing a letter
• advise the police that the vehicle was obtained by deception.
If B sells the car to C before the title is avoided, and C buys it innocently and
legitimately without knowing of B’s deception, s25 of the Sale of Goods Act
1908 applies.
Accordingly, C obtains a good title and A cannot get it back.
However, if A had avoided B’s title before this sale took place, C would not
get the title even if they had bought the car in good faith and without notice of
any defect in the title.
The reason for this is that B had no title to pass on to C.