Obtaining by Deception or Causing Loss by Deception

Question 1

1

Define Deception:

Answer 1

A:
sec 240(2), CA 61

(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 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 2

2

‘Representation’:

Answer 2

A:

It must be capable of being false so it must contain a proposition of fact. (Simester & Brookbanks)

Question 3

3

False Representation:

Answer 3

A:
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

Question 4

4

What is required to prove a False representation:

Answer 4

A:
INTENT - There was an intent to decieve.
REPRESENTATION - That there was a representation by the defendant.
FALSE - 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 5

5

Intention to deceive.

Answer 5

There must be an intention to deceive. No offence is committed unless the False statement/Non disclosure/Trick is made
or used by the defendant for the purpose of deceiving their victim or in the knowledge their victim is virtually certain
to be deceived.

Question 6

6

R v Morley - (intention to deceive.)

Answer 6

A:
An intention to deceive requires that the deception be practised in order to deceive the affected party.
Purposeful intent is necessary and must exist at the time of the deception.

Question 7

7
Recklessness s240(2):

Answer 7

A:

relates to whether a representation is false in material proper.

Question 8

8

Intent:

Answer 8

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

Question 9

9

Examples of false representations:

Answer 9

Oral - Verbally claiming to own goods that are in fact subject to hire purchase agreement.
(RvCaslin - Prostitute claiming to have a bedroom)

Conduct - Representing oneself to be a collector for charity by appearing to be carrying an official collection bag.
(RvBernard) wearing a cap & gown to gain student discount)

Documentary - Presenting a false certificate of qualification, or completing a valueless cheque on an account where
there are no funds knowing the cheque will not be honoured.

Question 10

10

R v Morley (representation)

Answer 10

A:

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

Question 11

11

Continuing effect:

Answer 11

A:
Representation by words or conduct e.g 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 the payment,
the continuing representation will become false and the obtaining of food will come within s240.

Question 12

12

Silence.

Answer 12

A:
Silence or non disclosure will not be regarded as a representation, but there are exceptions. Where an incorrect
understanding is implied from a course of dealing and the defendant has failed to negate that incorrect understanding.
e.g label swapping (Police v Dronjak)

Question 13

13
Knowledge.

The prosecution must prove that the defendant ‘knew’ that the representation was false in a material particular or was
reckless to its falsity.

Define knowledge and how can it be proven:

Answer 13

A:
Knowing means knowing or correctly believing. The defendant may believe something wrongly, but cannot ‘know’
something that is false.

Knowledge can be established by:

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

Question 14

14

False in material particular.

Answer 14

A:
The Prosecution must establish that the defendant knows or believes his representation is false in a material particular,
or is reckless as to whether it is false.

Question 15

15

Define Recklessness:

Answer 15

Acting ‘recklessly’ involves consciously and deliberately taking an unjustified risk.

Question 16

16

R v Harney (recklessness)

Answer 16

A:
Recklessness means the concious and deliberate taking of an unjustifed risk. In NZ 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 17

17

When recklessness is an element in an offence, what must be proved:

Answer 17

A:
That the defendant consciously and deliberately ran a risk (subjective test - what was the defendant thinking at the time)
That the risk was one that was unreasonable to take in the circumstances as they were known to the defendant.
(Objective test - would a reasonable person taken the same risk)

Question 18

18`

Define - Omission:

Answer 18

A:
an omission is inaction, i.e not acting. It can be a conscious decision not to do something or not giving thought to the
matter at all.

Question 19

19`

Define - Fraudulent device, Trick or Stratagem.

Answer 19

Device - A plan, scheme or trick.
Trick - An action scheme undertaken to fool, out wit, or deceive.
Stratagem - A cunning plan or scheme especially for deceiving an enemy, or trickery.

Underlying each term are the concepts of Deceit and Dishonesty. Acting ‘recklessly’ involves consciously and deliberately taking an unjustified risk.