Final

Question 1

Dishonestly Taking or Using a Document

✧ List the criminal liabilities for this offence type.

Answer 1

Section 228(1) Crimes Act 1961
✧ Everyone who,
✧ With intent to obtain any property, service, pecuniary advantage, or valuable consideration,—
✧ Dishonestly and without claim of right
✧ (1)(a) Takes or obtains any document; or
✧ (1)(b) Uses or attempts to use any document.

Question 2

Obtaining by Deception or Causing Loss by Deception

✧ List the criminal liabilities for this offence type.

Answer 2

Section 240, Crimes Act 1961
✧ Everyone who,
✧ By any deception and without claim of right,-

✧ (a) obtains ownership or possession of, or control over, any property, or any privilege, service, pecuniary advantage, benefit, or valuable consideration,
directly or indirectly; or

✧ (b) in incurring any debt or liability, obtains credit; or

✧ (c) 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; or

✧ (d) causes loss to any other person.

Question 3

Deception

✧ Definition

Answer 3

Deception means-

✧ 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

✧ An omission to disclose a material particular, with intent to deceive any person, in circumstances where there is a duty to disclose it; or

✧ A fraudulent device, trick, or stratagem used with intent to deceive any person.

Question 4

The Concept of Title

✧ What is title?

Answer 4

✧ A legal right to property

Question 5

The Concept of Title

✧ What is another term for ‘title’ and what does it mean?

Answer 5

✧ ‘property in’ - it means a legal right to property.

Question 6

The Concept of Title

✧ Why does title pass to a defendant in cases of deception?

Answer 6

✧ Title will pass because goods are generally handed over to the offender with the consent of the complainant when goods are obtained by a
deception.
✧ Because the goods are handed over with consent, the law recognizes this as the owner wanting the offender to have the goods and as a result ownership (title) of the goods as well.

Question 7

The Concept of Title

✧ What is the difference between property obtained by theft and deception?

Answer 7

✧ In a theft the goods are taken without the owner’s consent. A thief never gets title to property because the owner never intends to pass it on

✧ In cases of deception the owner is induced to part with it willingly.

Question 8

The Concept of Title
✧ What is voidable title?
✧ What happens to title if an innocent purchaser buys goods obtained by a deception?

Answer 8

✧ Where title is obtained by deception, fraud, duress or misrepresentation it will be “voidable title”.
✧ If an innocent purchaser buys goods obtained by a
deception, before title has been avoided, then he or she is entitled to a good title.

Question 9

The Concept of Title

✧ How can the victim of the original deception void title?

Answer 9

The original person deceived can, however, void the title while still in the hands of the deceiver by:

✧ Advising the deceiver, by letter or in person, that
he or she is aware of the deception.

✧ If the deceiver cannot be contacted, a
public notice in the newspaper is sufficient; or

✧ Complaining to the police that the property was obtained by deception.

Question 10

The Concept of Title
✧ What happens when defendant sells the property to another person if title has NOT been voided?
✧ What happens when defendant sells the property to another person if title has been voided?

Answer 10

✧ If the owner has not avoided its title with the seller before the sale, the buyer will obtain good title unless it lacks good faith or has notice of the seller’s defect in title.

✧ If the owner has avoided the contract before the sale, then the buyer will not obtain title.

Question 11

Accessing computer system for dishonest purpose

✧ What are the elements to be proved?

Answer 11

For a charge under Section 249, Crimes Act 1961, it must be proved that the offender:

✧ Directly or indirectly,
✧ Accessed any computer system,
✧ dishonestly or by deception, and without claim of right,—
✧ (a) Obtained any property, privilege, service, pecuniary advantage, benefit, or
valuable consideration; or
✧ (b) Causes loss to any other person.

Question 12

Computer System

✧ Definition

Answer 12

Computer System:
✧ A computer; or
✧ 2 or more interconnected computers; or
✧ Any communication links between computers or to remote terminals or another device; or
✧ 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 above and all related input, output, processing, storage, software, or communication facilities, and stored data.

Question 13

Computer System

✧ What does the term ‘access’ mean with regards to a computer system

Answer 13

The term ‘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 14

Computer System

✧ What does ‘accessing a computer system’ require? Not what it means

Answer 14

Access requires that the person instructing or communicating with the computer system
has:
✧ Some form of connection with the computer system through which instructions or communications may pass.

Question 15

Propensity Evidence

✧ What is the propensity rule? What does propensity evidence include and not include?

Answer 15

Includes:
✧ 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;

Does not include:
✧ Evidence of an act or omission that is one of the elements of the offence for which the person is being tried; or the cause of action in the proceeding.

Question 16

Propensity Evidence

✧ When may the prosecution offer propensity evidence about the defendant?

Answer 16

✧ 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 17

Procedures for Investigating Cheque Fraud, Credit Card Fraud, and Company Fraud.
✧ What are the 7 steps in the interview/investigation process?

Answer 17

✧ Interview the complainant.
✧ Contact the accounts manager where the account is based.
✧ If the account has been opened with fictitious details - find out details of the account, transactions and any other details.
✧ Obtain sample of the suspect’s handwriting from bank documents.
✧ If cheques are dishonored through lack of funds, interview account holder and obtain full details of suspect, account details - establish intent to defraud.
✧ Contact fraud squads.
✧ Obtain any CCTV at the bank or retail.

Question 18

Procedures for Investigating Cheque Fraud, Credit Card Fraud, and Company Fraud.
✧ What are the four categories of Company Deception, the crimes act offences and investigation method.

Answer 18

Category A
✧ large scale dishonest offences against employers by employees.
✧ dishonestly taking or using documents, theft by a person in a special relationship, using altered documents, forgery, false accounting.
✧ obtain documentary evidence, trace suspect actions, establish where money went, PO & SW, interview suspect.

Category B
✧ Dishonesty offences against financial institutions by outside people obtaining money via deception.
✧ False statement by promoter, dishonestly using or taking documents, access computer for dishonest purpose, forgery, false accounting.
✧ obtain documentary evidence, trace suspect actions, establish where money went, PO & SW, interview suspect.

Category C
✧ Commercial deception committed against the public by being enticed to invest money by individuals or through the guise of a company,
✧ False statement by promoter, obtaining OPC by deception, obtaining credit by deception,
✧ confirm company officer details, interview victims, suspect company’s bank, PO & SW, interview suspect,

Category D
✧ Dishonesty offences committed by professionals in a position of trust.
✧ Theft by a person in a special relationship, dishonestly t/u documents, using forged documents.
✧ Paper trail, documentary exhibits, interview clients, PO & SW, interview suspect, prepare case so that it can be understood by counsel and jury.

Question 19

Assistance Available From External Organizations In the Investigation of Company Fraud.
✧ What are the six sources of assistance for company deception and what may they provide?

Answer 19

Police Accountants and Legal Officers
✧ Advice and Assist with POs SWs and charges.

Ministry of Business, Innovation and Employment
✧ Possible sources of information are: 
✧ Registrar of Companies
✧ Companies Office
✧ Official Assignee
✧ Insolvency Services

Commerce Commission
✧ Assist in matters relating to Fair Trading Act 86 and pyramid selling.

Financial Markets Authority
✧ Can assist with matters relating to the FMAA 11 and issuing prospectuses

NZ Customs
✧ Assist in matters involving international travel and CAPPS alerts.

Liquidators or Receivers
✧ Accountants that administer companies in liquidation or receiverships.

Question 20

Hayes v R

✧ Pecuniary Advantage

Answer 20

✧ A pecuniary advantage is anything that enhances the accused’s financial position.

Question 21

Hayes v R

✧ Belief (dishonestly)

Answer 21

✧ The question is whether the belief is actually held, not whether that belief is reasonable.

Question 22

Hayes v R

✧ Uses or Attempts to Use

Answer 22

✧ An unsuccessful use of a document is as much use as a successful one.

Question 23

Cameron v R

✧ Recklessness

Answer 23

Recklessness is established if the defendant recognized that there was a real possibility that:
✧ Their actions would bring about the proscribed
result; and/or
✧ That the proscribed circumstances existed; and
✧ Having regard to that risk those actions were unreasonable.

Question 24

R v Misic

✧ Document

Answer 24

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

Question 25

R v Morley

✧ Intention to Deceive

Answer 25

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

Question 26

R v Morley

✧ A Representation

Answer 26

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

Question 27

Fisher v Raven

✧ Obligation to Pay

Answer 27

✧ ‘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 28

R v McKay

✧ Timing of ITD

Answer 28

✧ 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 29

R v Laverty

✧ Inducement

Answer 29

✧ 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 30

R v Cox

✧ Ideal Possession

Answer 30

Possession involves two elements.
✧ The first, the physical element, is actual or potential physical custody or control.
✧ The second, 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.