Legislation

Question 1

Section 228(1)(a)

Answer 1

Dishonestly taking a document

• with intent to obtain
• any property, service, percuniary advantage or valuable consideration
• dishonestly
• without claim of right
• takes or obtains
• any documentary

Question 2

Section 228(1)(b)

Answer 2

Dishonestly using a document

• with intent to obtain
• any property, service, percuniary advantage or valuable consideration
• dishonestly
• without claim of right
• uses or attempts to use
• any document

Question 3

Define obtain

Answer 3

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

Question 4

Define property

Answer 4

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 5

Define percuniary advantage

Answer 5

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 6

Define valuable consideration

Answer 6

A pecuniary advantage can amount to a favourable consideration when it involves a monetary advantage; however, the scope of a valuable consideration is wider than a pecuniary advantage.
In Hayes v R2 the Court found that 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”.
For example:
• monetary payment in return for goods or services
• goods given in return for services provided
• issuing a false invoice to receive payment for goods never supplied

Question 7

Define dishonestly

Answer 7

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

Question 8

Define claim of right

Answer 8

claim of right, 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 9

Define document

Answer 9

document means a document, or part of a document, in any form; and includes, without limitation,—
(a) any paper or other material used for writing or printing that is marked with
matter capable of being read; or
(b) any photograph, or any photographic negative, plate, slide, film, or microfilm,
or any photostatic negative; or
(c) any disc, tape, wire, sound track, card, or other material or device in or on
which information, sounds, or other data are recorded, stored (whether temporarily or permanently), or embodied so as to be capable, with or without the aid of some other equipment, of being reproduced; or
(d) any material by means of which information is supplied, whether directly or by means of any equipment, to any device used for recording or storing or processing information; or
(e) any material derived, whether directly or by means of any equipment, from information recorded or stored or processed by any device used for recording or storing or processing information

Question 10

Section 240 (1)(a)

Answer 10

Obtaining by deception

• By any deception
• without claim of right
• obtains ownership or possession of or control over
• any property or any privilege, service, percuniary advantage, benefit or valuable consideration

Question 11

Section 240(1)(d)

Answer 11

Causing loss by deception

• dishonestly
• without claim of right
• causes loss
• to any other person

Question 12

Define deception (as in section 240)

Answer 12

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 a material particular; or
(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 13

Define false representation

Answer 13

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 14

What must the prosecution prove for obtains by deception

Answer 14

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:
- knew it to be false in a material particular OR
- was reckless whether it was false in a material particular.

Question 15

Two types of intent

Answer 15

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 16

Define recklessness

Answer 16

Acting “recklessly” involves consciously and deliberately taking an unjustifiable risk.
It must be proved not only that the defendant was aware of the risk and proceeded regardless (a subjective test), but also that it was unreasonable for him to do so (an objective test).

Case law: R v Harney

Question 17

Section 240(1)(b)

Answer 17

Obtaining by deception

• by deception
• without claim of right
• in incurring any debt or liability
• obtains credit

Question 18

Define debt or liability incurred

Answer 18

The debt or liability (incurred) must be legally enforceable. ‘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.
As previously d

Question 19

Obtains credit

Answer 19

Under s240(1)(b) there must be an obtaining of credit as a result of incurring any debt or liability. That is, there must be a causative link between the debt or liability and the obtaining of credit. Obtaining credit requires a debtor to gain a creditor’s agreement to the deferred payment of a debt or obligation. The credit obtained must be in respect of a monetary obligation.

The obligation to pay must be legally enforceable against whomever the credit is obtained (usually the defendant).

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 20

Section 240(1)(c)

Answer 20

Obtaining by deception

• by any deception
• without claim of right
• induces or causes
• any other person
• to deliver over, execute, make, accept, endorse, destroy or alter
• any document or thing able to be used to derive a percuniary advantage

Question 21

Proof of inducement

Answer 21

The inducement should be proved whenever possible by direct evidence from the person alleged to have been defrauded. In practice the victim of the deception is usually 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 22

Obtaining by deception penalty’s

Answer 22

(a) if the loss caused or the value of what is obtained or sought to be obtained exceeds
$1,000, to imprisonment for a term not exceeding 7 years:
(b) if the loss caused or the value of what is obtained or sought to be obtained exceeds
$500 but does not exceed $1,000, to imprisonment for a term not exceeding 1 year:
(c) if the loss caused or the value of what is obtained or sought to be obtained does not
exceed $500, to imprisonment for a term not exceeding 3 months.]

Question 23

Define propensity evidence

Answer 23

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) 1 of the elements of the offence for which the person is being tried; or
(ii) the cause of action in the proceeding in question.

(1) 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 24

Admissibility of propensity evidence

Answer 24

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 25

Define title

Answer 25

“a right or claim to the ownership of property”.

In other words, “title” simply means a legal right to the property

Question 26

Define voidable title

Answer 26

A title obtained by deception, fraud, duress or misrepresentation is called a ‘voidable title’. This means that the title can be avoided by the seller.
Thus, if an innocent purchaser buys goods obtained by deception, before title has been avoided, then he or she is entitled to good title.
Until the title is avoided, the defrauder has a voidable title, and can confer good title on anyone who acquires the goods from him or her in good faith and for value.

Question 27

What must you do to avoid title?

Answer 27

Communication to B. The taking of all possible steps to bring it to B’s notice, eg by writing a letter, text, phone call etc.
By advising the police that the vehicle was obtained by fraud.

Question 28

Theft by person in a special relationship

Answer 28

Section 220 (1)

(a) to account to any other person for the property or for any proceeds arising from the property.
(b) To deal with the property, or any proceeds aria g from the property in accordance with the requirements of any other person.

Question 29

Forgery s.256(1)

Answer 29

• makes a false document
• with the intention of using it to obtain any property, privilege, service, percuniary advantage, benefit or valuable consideration

Question 30

Define representation

Answer 30

It must be capable of being false so it must contain a proposition of fact

Question 31

Define material particular

Answer 31

Important, essential or relevant detail or item.

R v Mallet - a matter will be material particular if it is something important or something that matters

Question 32

Define debt

Answer 32

Money owing from one person to another

Question 33

Define liability

Answer 33

Means a legally enforceable financial obligation to pay (for example cost of a meal)

Question 34

Define access (as per s.248 of CA 1961)

Answer 34

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 35

Define computer system

Answer 35

S.248

Means:

• a computer or
• two or more interconnected computers
• any communication links between computer or to remote terminals or another device or
• two or more interconnected computers combined with any communication links between computers or to remote terminals or other devices and
• includes any part of the items described in a and all related input, output, processing, storage, software or communication facilities and any store data

Question 36

False document, section 255

Answer 36

Purports to be Made by any person who did not make it or by a fictitious person.

Made by or on behalf of a person who did not authorise it’s making or on behalf of a fictitious person

Question 37

When assessing propensity evidence the judge may consider:

Answer 37

• The frequency with which the act, omission, event or circumstance which are subject of the evidence have occurred.
• the connection in time between the act, omission, event or circumstance which are the subject of the evidence and the offence for which the defendant is being tried.
• the extent of similarity
• the number of Persian making allegations against the defendant in the evidence being similar to the offence for which they are being tried for.
• if the offence is of an unusual nature in both the evidence and the case for which they are being tried.

Question 38

Resources available to help police in fraud cases:

Answer 38

• police forensic accountants
  -legal officers
• commerce commission
• financial markets authority
• NZ customs
  Liquidators and receiverships

ministry of business, innovation and employment:

• registrar of companies
• companies office
• official assignee
• insolvency services