Deception Offences (Module)

Question 1

What are the offence relating to “Obtaining by Deception?

Answer 1

• S240(1) CA61 - Obtains by Deception (Property/Service etc)
• S240(1)(b) CA61 - Obtains by Deception (Debt/Liability/Credit))
• S240(1)(c) CA61 - Obtains by Deception (Induces/Causes Person)
• S240(1)(d) CA61 - Obtains by Deception (Cause Loss)

Question 2

What is the Penalty for Obtaining by Deception?

Answer 2

S241 CA61

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

(a) Exceeds $1000, 7 Years Imprisonment
(b) Exceeds $500 but does not exceed $1000, 1 Year imprisonment
(c) does not exceed $500, 3 months Imprisonment

Question 3

What is the definition of Deception?

Answer 3

S240(2) CA61

(2) In this section, Deception means -
(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 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 4

What is the definition of Representation?

Answer 4

This is not defined in statute but the Concise Oxford Dictionary defines it as “ A thing that represents another. A statement made by way of an allegation or to convey opinion”.

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.

Simester and Brookbanks suggest that “it must be capable of false so it must contain a proposition of fact”

Question 5

What needs to be proved for “Deception”?

Answer 5

You must prove:

• 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;

(i) knew it to be false in a material particular OR
(ii) was reckless whether it was false in a material particular

Question 6

In regards to Intent to deceive, it is no offence unless what?

Answer 6

No offence is committed unless the false statement (240(2)(a)), non-disclosure (240(2)(b)) or trick etc (240(2)(c), is made or used by the defendant for the purpose of deceiving their victim, or in knowledge that the victim is virtually certain to be deceived.

Question 7

In regards to Intent to Deceive, what does Simester and Brookbanks state in regards to recklessness?

Answer 7

Simester and Brookbanks

It is insufficient that the deception is done in the mere awareness, without so intending, that the victim may be deceived. That would be a case of recklessness rather than intent, and falls outside the scope of s240(2)

Question 8

In regards to Intent to Deceive, does the deception need to be made to the person delivering the property, granting credit etc?

Answer 8

No - The deception need not have been made to the person actually delivering over the property, granting credit, conferring a benefit or suffering a loss provided deception was the cause of the relevant conduct.

Question 9

What is the definition of Intent?

Answer 9

In a criminal law context, there a 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 10

What are the 3 types of false representation and name an examples of each.

Answer 10

• Orally:
  Verbally claiming to own goods that are in fact subject to a hire purchase agreement
• By Conduct:
  Representing oneself to be a collector for charity by appearing to be carrying an official collection bag
• Documentary:
  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 11

What is the definition of False Representation under current law?

Answer 11

Under the current law, the 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 falsity of the statement will suffice.

Question 12

What can a representation by a defendant be under s240(2)?

Answer 12

S240(2) states that a representation can be oral, documentary or by conduct, or by any combination thereof. This means that it is possible to look beyond the literal meaning of express words used by the defendant and consider whether a particular meaning can be implied from his or her conduct

Question 13

What does the Case law R v Morley state in relation to representation?

Answer 13

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

Question 14

What is an example of representation having a continuing effect?

Answer 14

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 the dinner the diner decides to avoid making payment, the continuing representation will become false, and the obtaining of food will come within s240.

Question 15

What was stated in R V Waterfall in relation to representation by silence?

Answer 15

R v Waterfall

As a general rule, silence or non-disclosure will not be regarded as a representation, but there are exceptions to this such as where an incorrect understanding is implied from a course of dealing and the defendant has failed to negate that incorrect understanding.

Question 16

What is the definition of “Knowing”?

Answer 16

Simester & Brookbanks

Knowing means knowing or correctly believing. A defendant may believe something wrongly but can not know something that is false

Question 17

In regards to knowledge, what was held in R v Crooks?

Answer 17

That the accused may also be liable if their conduct has amounted to “wilful blindness” and thus is equated to knowledge.

Question 18

How can knowledge be established in an offence involving deception?

Answer 18

Can be established by:

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

Question 19

What is the definition of “Material Particular”?

Answer 19

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

In R v Mallet it was held that “A matter will be ‘material particular’ if it is something important or something that matters.”

Question 20

What must the prosecution do to establish ‘False in a material Particular’?

Answer 20

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. A minor detail may amount to ‘material particular’ if it is of consequence to the facts of the case. The question of materially will be assessed objectively.

Question 21

What is the definition of Recklessness?

Answer 21

R v Harney

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 risk.

Question 22

Explain recklessness in regards to False Representation?

Answer 22

The defendant may be liable if they are reckless as to whether the representation was false in material particular. This means that the defendant was conscious of the risk that the representation was false in a material particular.

Question 23

What is Recklessness Objective/Subjective Test?

Answer 23

Must be proved that:

• That the defendant consciously and deliberately ran a risk (subjective test) AND
• That the risk was one that was unreasonable to take in the circumstances as they were known to the defendant (Objective Test - based on whether a reasonable person would have taken the risk)

Question 24

What is the definition of Omission?

Answer 24

Not defined in CA61 - An Omission is inaction i.e not acting. It can be either a conscious decision not to do something or not giving thought to the matter at all.

Question 25

What proof is required for deception under 240(2)(b)(Duty to disclose material particular)?

Answer 25

Along with showing an intent to deceive, s240(2)(b) requires proof that there was some material particular that was not disclosed that the defendant was under a duty to disclose, and that the defendant failed to perform that duty.

Question 26

What is the definition of “Device”?

Answer 26

Oxford Dictionary

A plan, scheme or trick

Question 27

What is the definition of “Trick”?

Answer 27

Oxford Dictionary

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

Question 28

What is the definition of “Stratagem”?

Answer 28

Oxford Dictionary

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

Question 29

What is the Underlying concepts for Device, trick or stratagem?

Answer 29

Underlying Device, trick or stratagem are the concepts of deceit and dishonesty

Question 30

What is the definition of “Privilege” and “Benefit”?

Answer 30

Both words mean a ‘special right or advantage’ and are not limited to pecuniary advantage.

Question 31

What are examples of Privilege and Benefit?

Answer 31

• using another persons gym membership card so that you can use gym facilities
• Access to medical services
• The withdrawal of an assault charge
• A reduction in sentence for an offence

Question 32

When has a defendant “obtained goods”?

Answer 32

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

The property may be obtained if, a deception is made to one person means that the property is then actually obtained from another person, provided that the deception operated on the mind of the person giving up the property.

Question 33

What is the definition of “Possession”?

Answer 33

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 34

Does the victim of deception have to own the property that has been obtained by that deception?

Answer 34

No - It is sufficient if the person from whom the goods were obtained had special property or interest in the goods without having actual ownership of them.

Question 35

What is a Lien?

Answer 35

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

For example a garage owner has a contractors lien over the goods until the debt was paid or he voluntarily parted with the goods.

Question 36

What is the definition of “Control”?

Answer 36

To control something means to exercise authoritative or dominating influence or command over it.

Question 37

According to Adams on Criminal Law, what is required to prove that the defendant was in control of the property?

Answer 37

The prosecution does not need to prove that the accused was in actual possession of the property. It may be sufficient that the accused exercised control over the property through an agent.

It is insufficient that the dishonestly obtained property was found at the premises of which the defendant had control. It must be proved that the defendant did in fact exercise some control over the particular property.

Question 38

What is the definition of “Debt”?

Answer 38

Money owing from one person to another

Question 39

What is the definition of “Liability”?

Answer 39

A legally enforceable financial obligation to pay such as the cost of a meal

Question 40

What must Debt/Liability be?

Answer 40

The debt or liability incurred must be a legally enforceable one, against whomever the credit is obtained (usually the defendant). It will be no offence if the contract is void or illegal.

Question 41

What do you need to prove for an offence against s240(1)(b) (Obtains Credit by Deception)?

Answer 41

You must prove the identity of the suspect, and that they:

• by deception and without claim of right
• In incurring any debt or liability
• Obtained credit

Question 42

What was held in case law Fisher v Raven?

Answer 42

‘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 43

Explain the time to pay in relation to credit?

Answer 43

Credit may involve varying periods of time. Credit can be obtained over lengthy periods, as in loan agreements, or for a matter of minutes, such as the time taken to consume a meal or receive a haircut. At the end of the period of credit, payment is expected to be made.

Question 44

When must the timing of the intention to deceive?

Answer 44

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 45

What was stated in the Case Law R v Mckay?

Answer 45

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 46

What is ‘Credit’?

Answer 46

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

Question 47

In what circumstances does the intent to deceive not exist?

Answer 47

Intent to deceive does not exist where payment is withheld because of genuine dissatisfaction with the service

Furthermore, Intent to deceive is not disclosed merely because there is delay or non payment of the debt or an inability to perform a bone fide intention

Question 48

What offence surround incidents relatting to property on Hire Purchase?

Answer 48

Where good 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 49

What is the definition of “Induce”?

Answer 49

Oxford Dictionary

To persuade, bring about or give rise to

Question 50

What does Simester and Brookbanks state in relation to “induce”?

Answer 50

Another person (who need not be the immediate victim of the deception) must be induced or caused to do any of ‘deliver over, execute, make, accept, endorse, destroy, or alter’ the document or thing

Question 51

How is inducement proved?

Answer 51

The inducement should be proved, where possible, by direct evidence from the person alleged to have been defrauded.

In practice, the victim is 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 52

Can inducement be inferred?

Answer 52

R v Granger

In the absence of direct evidence, a reasonable inference can be drawn in certain circumstances that the owner was induced by representation to part with his money

Question 53

Is property obtained by deception if the victim does not believe the false representation?

Answer 53

If the particular false representation is not believed by the person to whom it is made, but he nevertheless parts with his property as a consequence of it, it cannot be said that the property was obtained by deception

Question 54

What was held in the case law R v Laverty?

Answer 54

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 55

What is the requirement for causing delivery etc of the document?

Answer 55

It is required that:

• The defendant, or an act of the defendant, must be substantial and operative cause of the delivery, execution etc of any document
• That document must be capable of deriving pecuniary advantage.
• The accused must cause the loss.

Question 56

What is the meaning of ‘Deliver over’?

Answer 56

Is to surrender up someone or something

Question 57

What is the meaning of ‘Execute’?

Answer 57

Is to put a course of action into effect

Question 58

What is the meaning of ‘Endorse’?

Answer 58

Is to write or sign a document

Question 59

What is the meaning of ‘Alter’?

Answer 59

Is to change in character or composition, typically in a comparatively small but significant way

Question 60

What is the meaning of ‘Accept’?

Answer 60

To receive something

Question 61

In relation to s240(1)(c), explain ‘Thing’?

Answer 61

Must be tangible and must be capable of being used to derive pecuniary advantage

Question 62

Define and explain the definition of ‘Loss’.

Answer 62

• Not defined in statue but in most cases will involve financial detriment to the victim.
• The loss caused by the deception must be in the nature of a direct loss. Indirect losses such as expectation of loss (loss of a bargain) and loss of anticipated future profits are not included.

There is no requirement in s240(1)(d) that the person who suffers the loss be the person who is deceived.

Where loss is more in the nature of a benefit than property, it may be preferable to charge uner 240(1)(a)

Question 63

What is the definition of “person”

Answer 63

Gender neutral - proven circumstantially or judicial notice.

Legislation provides a wider definition of the term person that incorporates not only real people, but also companies and other organisations

s2 CA61
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 or doing or owning.

Question 64

What was held in R v Morley in relation to proving offence under s240(1)(d)?

Answer 64

R v Morley

The prosecution must prove that:

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