Obtains by Deception - Credit

Question 1

Section and Penalty

Answer 1

S240(1)(b) 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) In incurring any debt or liability, obtains credit

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

Incurring debt or liability

Definitions

Of note only

Answer 8

The debt or liability (incurred) must be legally enforceable. This means that if the contract is void or illegal there will be no offence.

‘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 9

Fisher v Raven

Credit

And examples

Answer 9

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:

• obtaining money on loan
• extending existing overdraft facilities
• renting or leasing a dwelling.

Question 10

R v McKay

Timing of intention to deceive

Answer 10

R v Mckay

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 11

Continuing Representation

Of note only

Answer 11

A representation, whether by words or conduct, may be of continuing effect.

Thus, entry into a restaurant and ordering a meal would usually be a representation that one will follow the normal practice and pay for the meal at the appropriate time. If, during the course of the meal, a diner decides to avoid payment, the continuing representation of an intention to pay will become false and any subsequent obtaining of food will come within s240.