Obtains by Deception - Property

Question 1

Obtains by Deception - Property

Section and Penalty

Answer 1

S240(1)(a) CA61

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

Question 2

Obtains by Deception - Property

Elements

Answer 2

(1) By deception and without claim of right
(2) Obtains ownership or possession of, or control over
(3) Any property, privilege, service, pecuniary advantage, benefit or valuable consideration, directly or indirectly

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

Intent to Deceive, case law

Answer 4

R v Morley

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

Representations, case law

Answer 5

R v Morley

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

Question 6

Recklessness, case law

Answer 6

R v Harney

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

Obtains

Answer 8

S217 CA61

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

Question 9

Possession, case law

Answer 9

R v Cox

Possession involves two … elements. The first, often called the physical element, is actual or potential physical custody or control. The second, often described as 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.

Question 10

Special Interest Lien

Definition and Example

Of note only

Answer 10

In general terms, a lien is a right over another’s property to protect a debt charged on that property.

• Garage owner repairing another person’s vehicle, places lien over it until debt is paid.

Question 11

Control

Answer 11

Means to exercise authoritative or dominating influence or command over it.

Of note

The prosecution does not need to prove that the accused was in actual possession of the property. It may be sufficient that the accused exercised control over the property through an agent.

It is insufficient that the dishonestly obtained property was found at the premises of which the defendant had control. It must be proved that the defendant did in fact exercise some control over the particular property.

Question 12

Property

Answer 12

S2 CA61

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 13

Privilege or benefit

Definition and Examples

Answer 13

A special right or advantage.

• Using another person’s gym membership card so that you can use the gym facilities.
• Access to medical services.
• The withdrawal of an assault charge.
• A reduction in sentence for an offence.

Question 14

Pecuniary Advantage, case law

Answer 14

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.”

• Cash from stolen goods.
• Clothing or cash obtained by a credit or EFTPOS card.
• A discount (by using a student ID card).
• Avoiding or deferring payment of a debt.

Question 15

Valuable Consideration

Definition and Examples

Answer 15

Anything capable of being valuable consideration, whether of a monetary kind or of any other kind; in short, money or money’s worth.

• 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