Short answer

Question 1

Explain intent to obtain

Answer 1

The defendant must intend to obtain, and he or she must intend to obtain by the deception

Question 2

Examples of valuable consideration

Answer 2

• monetary payment in return for services or goods
• good given in return for services provided
• issuing a false invoice to receive payment for goods never supplied

Question 3

Claim of right - nature of belief (4 points)

Answer 3

1 - The belief must be in a proprietary or possessory right in property. Must be a belief that relates to an element of ownership of the property. Can be tangible or intangible property
2 - Belief must be about rights to the property in relation to which the offence is alleged to have been committed.
3 - Belief must be held at the time of the conduct alleged to constitute the offence
4 - Must actually be held by the defendant. The belief is not required to be reasonable or reasonably held and may be based on ignorance or mistake.

Question 4

Representation and false representation and what is required to be proved

Answer 4

Representation - Not defined. Examples include representations about a past or present fact, about a future event or about an existing intention, opinion, belief, knowledge or other state of mind. Simester & Brookbanks suggest “It must be capable of being false so it must contain a proposition of fact”

False representation - Representation must be false, and defendant must know or believe that it is false in a material particular, or be reckless whether it is false. The falsity of the representation must be proved.

What is required to be proved:
- that there was an intent to deceive
- that there was a representation by the defendant
- 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

Question 5

Examples of having an intention to deceive

Answer 5

Orally - Verbally claiming to own goods that in fact subject to a hire purchase agreement

Conduct - Representing oneself to be a collector for charity by appearing to be carrying an official collection bag

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

Question 6

Representations by the defendant - oral etc…

Answer 6

240(2) states that representation can be oral, documentary or by conduct or a combination. Means that it is possible to look past the literal meaning of express words used by the defendant and consider whether a particular meaning can be implied from his or her conduct.

Question 7

Rule on silence and representations

Answer 7

As a general rule, silence or non disclosure will not be regarded as a representation. There are exceptions to this, such as when an incorrect understanding is implied from a course of dealing, and the defendant fails to negate that incorrect understanding.

Ie, two price tags on one item, cashier scans cheaper one, defendant fails to point out actual value of item

Question 8

How to establish that the defendant had knowledge that representation was false

Answer 8

• Admissions
• Implications from the surrounding circumstances
• Propensity evidence

R v Crooks it was held that the accused may also be liable if their conduct has amounted to wilful blindness

Question 9

Explain false in a material particular

Answer 9

Prosecution must establish that defendant knows or believes his representation is false in a material particular, or is reckless as to whether it is false. A minor detail may amount to a material particular.

Material particular is not defined in the Crimes Act and can be given its usual meaning of an important, essential or relevant detail or item.

Question 10

Explain recklessness, and what must be proved

Answer 10

Acting recklessly involves consciously and deliberately taking an unjustifiable risk.

It must be proved not only that the defendant was aware of the risk and proceeded regardless, but also that it was unreasonable for him to do so.

Question 11

240(2)(b) - omission etc

Answer 11

Omission - is inaction, not acting

Duty to disclose - requires you to show that there was some material particular that was not disclosed, that the defendant was under a duty to disclose and that the defendant failed to perform that duty. Often originates in civil law, for example where the parties are in a contractual relationship.

Question 12

240(2)(c) - fraudulent device etc

Answer 12

This concerns a fraudulent device, trick, or stratagem used with intent to deceive any person.

Introduces a general offence of fraud and covers any form of fraudulent conduct.

Can range from simple trickery to more complex schemes such as pyramid schemes

Question 13

Examples of privilege or benefit

Answer 13

• Using another persons 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

Obtains ownership, possession or control

Answer 14

Goods are obtained by defendant if they come into their control, even if they don’t have physical possession of them.

Property may be obtained if a deception made to one person means that property is actually obtained from another person (provided that deception operated on the mind of the person giving up the property)

Question 15

Distinction between theft and obtains by deception

Answer 15

In theft the property is obtained without the owners permission and title is not passed on.

Question 16

Explain ownership

Answer 16

Ownership is synonymous with the concept of title. In certain instances a person parting with goods not only relinquishes possession to the other person, but also passes on a legal right of ownership (ie title) the goods

Question 17

Explain possession (ownership and title etc)

Answer 17

People often hold possession and ownership at the same time, however you can possess something without having title to it (eg driving someone elses car).

Frequently in practice, ownership (title) and possession are passed to the offender. In such cases the person parting with the goods intends to give the other person both possession and ownership (ie purchasing goods with valueless cheque)

However title given may be avoided in certain circumstances

Question 18

Special interest

Answer 18

It is sufficient if the person from whom the goods were obtained had some special property or interest in the goods without having actual ownership of them

Question 19

Special interest lien

Answer 19

A lien is a right over another’s property to protect a debt charged on that property. Ie someone is getting their car repaired in garage and doesnt pay. Mechanic can place a lien over the vehicle until owner pays debt or gives up vehicle. He then has a special interest in the vehicle.

Question 20

Control

Answer 20

To control something is to exercise authoritative or dominating influence or command over it.

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.

Insufficient that dishonestly obtained property was found on property that defendant has control over. Must be proved that defendant did in fact exercise some control over particular property

Question 21

Examples of pecuniary advantage

Answer 21

Basically means economic or monetary advantage

• cash from stolen goods
• clothing or cash obtained by a credit or eftpos card
• a discount (by using student ID)
• avoiding or deferring payment of debt

Question 22

What you must prove under 240(1)(b)

Answer 22

You must prove the identity of the suspect, and that they:

• by deception and without claim of right
• in incurring any debt or liability
• obtained credit

Question 23

Key point for debt or liability in 240(1)(b)

Answer 23

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

Question 24

Time to pay (when obtaining credit)

Answer 24

Credit may involve varying periods of time. Credit can be obtained over lengthy periods, such as loan agreements. Can also be for a matter of minutes, such as time taken to eat a meal or receive a haircut. At the of the period of credit, payment is expected to be made.

Question 25

Credit - 3rd person

Answer 25

There is a long standing authority that credit must be obtained by and given to the defendant personally. Under the extended definition of obtain, it will be sufficient that the defendant obtained the extension of credit to another person.

examples of obtaining credit:

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

Question 26

Timing of the intention to deceive (obtaining credit)

Answer 26

The intention to deceive is essential and must exist at the time when the deception is perpetrated. So when the credit is obtained, a later decision not to pay is insufficient.

Question 27

Intangible thing - credit

Answer 27

Credit is an intangible thing. Credit obtained must be in respect of a monetary obligation. If the defendant obtains a non-monetary benefit, could look at a charge under 240(1)(a).

Question 28

Continuing representations

Answer 28

In many cases, a representation, whether by words or conduct, may be of continuing effect. Ie, entering a restaurant and ordering a meal would usually be a representation that one will follow the normal practice and pay for the meal. If during the course of the meal, the 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

Question 29

Delay or non-payment of debt

Answer 29

Intent to deceive is not disclosed merely because there is:

• delay or non-payment of the debt or
• an inability to perform a bona fide intention

Eg, incurring debt and then being unable to pay due to unforeseen circumstances is not deceit.

Question 30

Witholding a payment

Answer 30

Intent to deceive does not exist where payment is withheld due to dissatisfaction with the service

Question 31

Hire purchase

Answer 31

Where goods are obtained on hire purchase by a false representation, the offence committed is deception. However if the offender later sells the goods to another, the offender commits theft by conversion. The offender never receives title for goods fraudulently obtained on hire purchase.

Question 32

How to prove inducement

Answer 32

Should be proved by direct evidence from the person alleged to have been defrauded. The victim of the deception is usually questioned to elicit answers proving:

• the the false representation was believed, and
• that it was the consequence of that belief that the victim parted with his or her money.

Question 33

Explain ‘causes’

Answer 33

The defendant or an act of the defendant, must be the substantial and operative cause of the delivery, execution etc of any document capable of deriving pecuniary advantage. The accused must cause the loss.

Question 34

Explain ‘deliver over, execute, make, accept, endorse, destroy or alter’

Answer 34

None of the terms are defined in Crimes Act.

Deliver over - Surrender up someone or something
Execute - is to put a course of action into effect
Endorse - is to write or sign on a document
Alter - is to change in character or composition, typically in a comparatively small but significant way
Accept - is to receive something

Question 35

Thing (1)(c)

Answer 35

Simmester and Brookbanks defines thing as: a broad and encompassing concept. However it appears that the thing must be tangible.

Question 36

Loss (1)(d)

Answer 36

Not defined by statute. In most cases will involve financial detriment to the victim. Not all forms of loss will come within the section. Property or valuable things will be the subject matter of ‘loss’ but it is not as clear when the loss concerns something that is non-quantifiable.

Must be direct loss, not future loss or expectation loss (loss of a bargain).

The loss flowing on from the deception should be assessed by the extent to which the complainants position before the deception had been diminished or impaired

Question 37

What is required to be proved for (1)(d)

Answer 37

Prosecution must prove that:

• The loss was caused by a deception
• It was reasonably foreseeable some more than trivial loss would occur, but
• need not prove the loss was intentionally caused.

Thus, there must be loss to “any other person”, but there is no requirement that there be any benefit to anyone

Question 38

Difference between dishonest and deceit - title

Answer 38

A thief never gets title. A person who by deception or other deceit, induces another person to hand over their goods with the intention that the title will pass, does get title. There may be limitations on this title

Question 39

Explain voidable title

Answer 39

A title obtained by deception, fraud, duress or misrepresentation is a called a ‘voidable title’. This means that the title can be avoided by the seller.

If innocent purchaser buys goods that have been obtained by deception before the title has been avoided, then they are entitled to good title.

Until the title is avoided, the defrauder has a voidable title, and can confer good title on anyone who acquires the goods from them.

Question 40

How to avoid a title

Answer 40

Victim or original owner must:

• communicate with B
• Take all other possible steps to bring it to B’s notice, eg writing a letter
• Advise the Police that the vehicle was obtained by deception

Question 41

When does title pass?

Answer 41

Where there is a contract for the sale of specific goods between the parties, title passes when it was intended to pass by the parties.

To ascertain the intention of the parties, regard must be had in terms of:

• the contract
• the conduct of the parties
• the circumstances of the case

Question 42

When can the innocent buyer be liable for receiving?

Answer 42

If title is voidable but has not been avoided, then innocent buyer has not committed offence of receiving (S246(4) CA 1961).

If title has been voided before purchase is made, innocent buyer could be liable.

Question 43

Difference between possession and title

Answer 43

Not all cases of false representation involve title. Goods are capable of being received where possession only is obtained by a false representation.

Ie a hire purchase. Title is not obtained until the full amount is paid.

Question 44

Title - money

Answer 44

Money passes freely hand to hand, and whoever receives money, innocently and in return for value given, gets a good title even though the coins or notes may be clearly proved to have been stolen.

Question 45

Theft by conversion explain

Answer 45

Where goods are obtained on ‘hire’ by false representation, the offence committed is deception. If these hired goods are then sold to another, they commit theft by conversion.

Question 46

Theft by person in special relationship - 4 actions by defendant that may be a offence

Answer 46

Where the defendant has intentionally:

• Failed to account to any other person for property received by the defendant
• ” “ the proceeds of property “ “
• Dealt with property received by the defendant otherwise than in accordance with the requirements of some other person
• ” “ the proceeds of property “ “

Question 47

Two core elements of proof for theft by person in special relationship

Two mental elements

Answer 47

7 years imprisonment regardless of property value.

Require proof of two core elements:
A) that he or she received property on terms or in cirucmstances which, to the defendants knowledge, affect what the defendant may do with the property or its proceeds or require the defendant to act in accordance with the requirements of another person and

B) that the defendant intentionally departed from the relevant obligation

Mental elements:

• Must know that the acquisition of property was on terms or requirements which require the defendant to account for the property etc. This requirement will be met if the defendant is aware there are terms of some kind affecting his or her freedom of action
• The defendant must have intentionally departed from their obligations

No requirement that the defendant acted dishonestly or without claim of right. Intentionally failing to perform ones obligations is sufficient for liability.

Question 48

Forgery - does the defendant have to use the false document?

Answer 48

No, there is no requirement that the defendant use the document, as long as the intention to do so is present. The defendant must know that the document is false.

Question 49

Explain false document

Answer 49

For a document to be forged it must meet the definitions of false and document.

Essentially a false document must lie about itself. However just because a lie is put in writing does not mean that the document on which it is written is a forgery. The document itself must lie about itself, or intend to convey a lie in cases where it has been written by someone intending to pass it off as having been written by someone intending to pass it off as having been written by someone else.

These various forms of lies make a document false.

Question 50

What material alterations can be made to a genuine document to make it false?

Answer 50

• additions
• insertions
• deletions
• obliterations
• erasures
• removal of material or otherwise

Question 51

What is a material alteration?

Answer 51

An alteration is a material alteration if it increases the value or negotiability of a document or instrument. A false document can be made by making material alterations to a genuine document.

Question 52

Taking a photocopy of a false document

Answer 52

A photocopy of a false document claims merely to be a copy and therefore does not tell a lie about itself

Question 53

Intent and knowledge for forgery offences

Answer 53

256, CA 1961

1) makes a false document with the intention of using it to obtain property, privilege, service, pecuniary advantage, benefit or valuable consideration
2) makes a false document, knowing it to be false, with the intent that it in any way be used or acted upon, whether in NZ or elsewhere, as genuine.

Must prove that the offender intended to deceive by means of that which is false. No requirement that the document be put to its intended use.

Question 54

Knowledge that must be proved when a forged document is used

Answer 54

Must prove that the defendant knew the document was a forgery the time of the physical act of using, dealing with or acting upon it.

Not sufficient to just prove that they knew document was false. To prove document is a forgery, you must prove that:

• the document was false
• the user knew that the document had been made with the knowledge and intent required under 256

Question 55

Explain ‘cause’

Answer 55

A defendant may cause a document to be altered, concealed or destroyed either through arranging for the necessary actions by another person or by the use of a computer program or other device which will operate to alter, conceal or destroy the document.

Question 56

Two mental elements when altering or reproducing docuements

Answer 56

Two alternative mental elements

1) an intention to obtain by deception any property etc
2) An intention to cause loss

No requirement that the loss is intended to be inflicted by deception.

Question 57

Forgery vs altering etc a document

Answer 57

The differences rest in the varying definitions of document and intent.

With forgery, an intent to deceive only is required, not an intent to obtain by deception.

If the offence of altering etc a document, you must prove that the offender intended to obtain by deception.

Any document can be altered or reproduced in the altering document charge, but with a charge of forgery, the document must be a false document.

Question 58

Accessing computer systems, difference between 249 (1) and (2)

Answer 58

Reflected in the words ‘thereby’ and ‘obtains’. (1) is directed at the situation where a person has actually accessed a computer system, obtains the offending material or causes loss. (2) is directed at someone who actually accesses the computer system with that intent regardless of the result.

Question 59

Damaging or interfering with a computer system, difference between 250 (1) and (2)

Answer 59

(1) criminalises the destruction, damaging or altering of a computer system that the defendant knows or ought to know would endanger life
(2) makes it an offence to damage etc any computer system and adds the requirement that the defendant must act without authority with the knowledge that they are not authorised or are reckless whether they are authorised.
(2) (b) is directed at instances where the defendant has so arranged matters that the victims own operation of his or her computer system, or the acts of third parties, will cause damage to the victims computer system

Question 60

Discussion around accessing computer system without authorisation

Answer 60

Requires the defendant to have intentionally gained access, directly or indirectly, to a computer system where access to that computer system has not been authorised.

The offence does not apply to a person who has authorisation but accesses the computer system for a purpose other than the one for which he or she was given access.

Offender doesnt have to be physically present. Can access the computer remotely.

Question 61

Theft by person in a special relatioship liability

Answer 61

This section applies to any person who has received or is in possession of, or has control over, any property on terms or in circumstances that the person knows require the person—
(a)
to account to any other person for the property, or for any proceeds arising from the property; or
(b)
to deal with the property, or any proceeds arising from the property, in accordance with the requirements of any other person.