Obtaning by deception or casuing loss by deception Flashcards
Definition
Credit
Obligation on the debtor to pay or repay, and the time for them to do so by the creditor
What must the loss be and what sort of loss is not sufficient?
The loss must be a direct loss. Indirect losses such as expected profits or loss of a bargain are not sufficient
At what time does the intent to deceive need to be in relation to obtaining by deception in relation to credit
It must be present at the time of the deception. If credit is obtained and the decision to not repay is made later then this is insufficient
Who is incorporated in the definition of person
companies and other organisations
Definition
Device
a plan, scheme or trick
Offence - Obtaining by Deception
S240(1)(a/b) CA 1961
Every one who, by any deception and without claim of right,—
(a)
obtains ownership or possession of, or control over, any property, or any privilege, service, pecuniary advantage, benefit, or valuable consideration, directly or indirectly; or
(b)
in incurring any debt or liability, obtains credit; or
(c)
induces or causes any other person to deliver over, alter, accept ,execute, endorse, make or destroy any document or thing capable of being used to derive a pecuniary advantage; or
Definition
accept
to receive something
Definition
Thing
Is abroad concept but must be tangible
What section is the penalty for obtaining by deception and what are the penalties?
S241
(a) Over $1000 - 7 years
(b) $500 - $1000 - 1 year
(c) under $500 - 3 months/$500 fine
Case law relating to intent to deceive in relation to credit
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
Define
False representation
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.
Definition
alter
to change the character or composition, typically in a comparatively small but significant way
Definition
execute
put a course of action into effect
Case law relating to inducement
R v Laverty
It is necessary for the prosecution to prove that the person parting with the property was induced to do so by the false representation made
Does the offender need to obtain the item from a person who has ownership of the property?
No, it is sufficient that the person whom the goods are obtained from had a special interest in the goods
Definition
Endorse
to write or sign a document
Why must the debt or liability be legally enforceable?
Because if the contract is void or illegal there will be no offence
What must be proved for a false representation?
- intent to deceive
- a representation was made by the defendant
- the representation was false
- defendant knew/was reckless as to whether the representation was false in a material particular
Whats the difference between ownership and title?
None, they are synonymous
What are examples of situations which are not sufficient for an intent to deceive
- Delay or non-payment of the debt
- an inability to perform a genuine intention
- Payment with held due to dissatisfaction with service
What is significant about section 240(2)(c)
it covers any form of fraudulent conduct as long as there is an intention o decieve
Define
Deception
S240(2) CA 1961
(a)
a false representation, whether oral, documentary, or by conduct, where the person making the representation intends to deceive any other person and
knows or 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.
What are examples of credit being obtained?
- obtaining money on loan
- extending existing overdraft facilities
- renting or leasing a dwelling
Definition
Control
To exercise authoritative or dominating influence or command over it.
What is the continuing effect?
Where a representation is made legitimately but half way through the offender decides to make the representation false, then the representation is false and falls within s240
Define
Representation
It must be capable of being false so it must contain a proposition of fact
Definition
Stratagem
A cunning plan or scheme especially for deceiving an enemy, or trickery
Definition
Liability
A legally enforceable financial obligation to pay
Case law relating to the false representation made by a defendant
R v Morley
Representation must relate to a statement of existing fact, rather than a statement of future intention
Deception and hire purchase
If a person obtains a hire purchase by false representation then they have obtained by deception but if they then on sells the item then they have committed theft by conversion
Case law for obligation to pay
Fisher v Raven
Credit refers to the obligation on the debtor to pay or repay, and the time given to them to do so by the creditor. Credit does not extend to an obligation to supply services or goods.
Definition
Deliver over
is to surrender up someone or something
What level of certainty is required for a false representation?
Absolute certainty is not required and wilful blindness will suffice
When are goods considered to be obtained by the offender
when the goods come under their control, even though they may not be in their physical possession.
As long as the deception was weighing on the mind of the person when the property was given up, it doesn’t matter who the offender obtained the property from.
Define
Recklessness
Consciously and deliberately taking an unjustifiable risk
How can a representation be made?
Orally
Documentary
Conduct
Combination of the above
What constitutes induced conduct?
When a person is induced or caused to deliver over, execute, make, accept, endorse, destroy or alter a document or thing
Definition
Induce
To persuade, bring about or give rise to
Definition
Loss
Financial detriment to the victim
Who must the receive the loss
It is not required that the person who suffers the loss is the person deceived
Define
Material particular
An important, essential or relevant detail or item
Case law relating to the intention to deceive
R v Morley
An intention to deceive requires that the deception is practiced in order to deceive the affected party. Purposeful intent is necessary and must exist at the time of the deception.
Do you need to possess something to have control over it?
No
Define
Intent
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
‘How does possession and ownership work together
Generally you both have possession and ownership at the same time. However you can possess something and not have title to it.
How can knowledge be established?
An admission
Implication from the circumstances surrounding the event
Propensity evidence
What charge best suits if the defendant obtains a non-monetary benefit?
most likely 240(1)(a) as credit must be in respect to a monetary obligation
Define
Omission
Is inaction. It can either be a conscious decision not to do something or not giving thought to the matter at all.
Case law relating to recklessness
R v Harney
Recklessness means the conscious and deliberate taking of an unjustified 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 the risk.
Definition
Trick
An action or scheme undertaken to fool, outwit or decieve
Case law for ideal possession
R v Cox
Possession involves two elements. The first being the physical element which is the actual or potential custody or control and the second element being the mental element which involves knowledge in the sense of awareness that the substance is in their possession and an intention to exercise possession.
Offence - Causing Loss by Deception
S240(1)(c/d) CA 1961
Every one who, by any deception and without claim of right,—
(d)
causes loss to any other person.
Define Knowledge
Knowing means knowing or correctly believing. The defendant may believe something wrongly, but cannot know something that is false.
What is the distinction between theft and obtaining by deception
Theft means the property is obtained without the owners permission so title is not passed on. When obtained by deception the owner willingly passes the property over and title is passed on.
Definition
Debt
Money owing from one person to another
What other ways can you have control over something?
Through an agent
How does silence/non-disclosure relate to representations
As a general rule silence or non-disclosure are not regarded as a representation but there are exceptions which includes where an incorrect understanding is implied from a course of dealing and the defendant has failed to negate that incorrect understanding.
