Deception SA

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 is widely defined and covers almost all interactions with a computer system, such as using a computer system at work and more remote forms of access such as viewinga website or using a virus.

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

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 whther it is false. Absolute certainty is not required and wilful blindness as to falsity of the statement will suffice

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

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

Answer 14

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 15

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

Answer 15

(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 16

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

Answer 16

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 17

offender using false name and address hires an electric drill from hire shop. Fails to return it. he claims that he did intend to return it at some stage
what is the most appropriate offence?
(b)Who has title to the drill?

Answer 17

Obtain by Deception – CA s240(1)(a)

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

Question 18

What are the ingredients of obtains credit by deception Section 240(1)(b)

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

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 has a backlog of jobs to complete. His financial situation deteriorates and he continues to receive deposits from clients in order to pay his bills . he thinks he can trade his way out of financial difficulties. Criminally liable for deception?

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

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

a) debt
b) liability

Answer 21

Debt’ means money owing from one person to another.

‘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

Section 240(2) states that a representation can be oral, documentary or by conduct or any combination thereof. This means 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 their conduct.

R v Morley - Representations must relate to a statement of existing fact, rather than a statement of future intention.

Question 25

offender presents an item with price tags for different amounts, aware that the higher is the correct price. Shows the lower price and obtains the item for the lower price.

a) what offence committed ?
b) who has title to the item obtained

Answer 25

Obtains by Deception – CA s240(1)(a)

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

How can ‘knowledge’ be established

Answer 28

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

• 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

Propensity evidence, whether on previous or later occassions to the offence charged, is admissable in cases of deception where there is a sufficiently strong connection between the offences.

Question 31

• List the things a judge may consider when considering propensity evidence?

Answer 31

(1) the frequency with which the acts, omissions, events, or circumstances which are the subject of the evidence have occurred:
(2) the connection in time between the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried:
(3) the extent of the similarity between the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried:
(4) 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:
(5) whether the allegations described in paragraph (d) may be the result of collusion or suggestibility:
(6) the extent to which the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried are unusual.

Question 32

The key to a successful company fraud investigation is to seek advise early. Outline the suggested sources of specialist information you should canvass and the type of potential assistance those sources can provide the investigation

Answer 32

• Police accountants and legal officers – 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.
• Ministry of Business, Innovation and Employment – Possible sources of information are: registrar of companies, company’s officer, official assignee, insolvency services
• Commerce commission – The commerce commission can assist in matters relating to: the fair trading act 1986, the unsolicited goods and services act 1975 and pyramid selling.
• Financial Markets Authority – The financial markets authority can assist in matters relating to the securities act 1978 and the issuing of prospectuses.
• NZ Customs – Customs can assist in matters involving international travel and CAPPS alerts
• Liquidators and Receivers – There administer companies that are in liquidation or receivership. They are usually accountants.

Question 33

Police investigating the fraudulent use of credit cards or cheques must conduct enquires with the bank where the account is domiciled List the information an investigator must obtain from the bank accounts manager

Answer 33

In all cases contact the accounts manager at the bank where the account is domiciled and find out:
(1) The account holders full name, occupation, private and business addresses and telephone numbers
(2) The date the account was opened
(3) The account history and how it has been operated
(4) The date the cheque book or credit card was reported missing
(5) How and by whom a loss was reported
(6) The serial numbers of any missing cheques
(7) The details of any cheques dishonoured and returned
(8) Whether the account holder is suspected of issuing valueless cheques
Also find out if there are other banks to which cheques have been returned and, if possible, details of the people and firms defrauded.