Obtains by Deception - Causes Loss

Question 1

Section and Penalty

Answer 1

S240(1)(d) CA61

Exceeds $1000 - 7 Years Imp
$500 to $1000 - 1 Year Imp
Under $500 - 3 Months Imp

Question 2

Elements

Answer 2

(1) By deception and without claim of right

(2) Causes loss to any other person

Question 3

Deception

Legislation

Answer 3

S240(2) CA61

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 4

R v Morley

Intent to Deceive

Answer 4

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 5

R v Morley

Representations

Answer 5

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

Question 6

R v Harney

Recklessness

Answer 6

Recklessness means the conscious and deliberate taking of an unjustified risk. In New Zealand it involves proof that the consequence complained of could well happen, together with an intention to continue the course of conduct regardless of risk.

Question 7

Claim of Right

Answer 7

S2 CA61

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 8

Causes Loss

R v Morley

Loss should be assessed by what

Answer 8

Loss should be assessed by the extent to which the complainant’s position prior to the offence has been diminished or impaired.

Of note

In most cases will involve financial detriment to the victim. Must be a direct loss.

Question 9

To any other person

Normal definition and who it includes

Of note only

Answer 9

Gender neutral. Proven by judicial notice or circumstantial evidence.

S2 CA61

Includes:

• 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 of doing or owning.

Question 10

Liability

Answer 10

1. By deception and without claim of right

Deception def
intent to deceive- R v Morely
Representation def
Representation- R v Morley
Oral/Documentary/by conduct meaning
Knowldege -Simmester and Brookbanks
Recklessness- R v Harney
Omission/duty to disclose/fraudulent/rick
Claim of Right def

2. Causes loss to any other person

Loss - R v Morley
Person Def and includes