SHORT ANSWER - BULLY

Question 1

What is meant by the following terms referred to in section 240(1)(b) of the Crimes Act 1961.
a) Debt.
b) Liability

Answer 1

a) Debt means money owing from one person to another.
b) Liability means a legally enforceable financial obligation to pay, such as the cost of a meal.

Question 2

Where a person has been induced to part with goods by deception, what are two steps he can take to avoid the deceiver’s title?

Answer 2

1. Communication. Taking all possible steps to bring it to the offenders notice e.g. writing communication, text, phone call etc.
2. By advising the Police that goods were obtained by fraudulent means.

Question 3

To successfully prosecute a person on a charge of (using altering or reproducing documents with intent to deceive) under section 259 the Crimes Act 1961, name three mental elements you must prove?

Answer 3

1. The defendant must know that the document had been altered with intent to deceive.
2. The defendant must have intended by the employment of the document, or by causing another to use or rely on it, to obtain by deception any property, privilege, service, pecuniary advantage, benefit or valuable consideration or to cause loss to any other person.
3. There must be an intention to acquire or retain the property etc, or to cause loss “by deception”.

Question 4

How is the term Representation interpreted (not defined) by the courts. State the relevant case law in your answer.

Answer 4

This is not defined.
Examples include representations about:
1. A past or present fact.
2. About a future event.
3. About an existing intention, opinion, belief, knowledge or other state of mind.

Simester and Brookbanks, Principles of criminal law, 2007

It must be capable of being false so it must contain a proposition of fact:

Question 5

An offender knowingly presents to the retailer an item with two price tags for different amounts, aware that the higher amount is the correct price, he shows the lower price to the checkout operator and obtains the item for the lower price.

He is apprehended by Police some two days later for this offence.
a) What offence has the offender committed?
b) Who has title to the items obtained by the offender?

Answer 5

a) Obtains by Deception. Sec 240(1)(a) CA 1961
b) Title would belong to the offender which has been obtained by deception.

Question 6

The prosecution must establish either that the defendant knows or believes his representation is false in a material particular, or is reckless as to whether it is false.

State your understanding in relation to the term False in a material particular?

Answer 6

An important, essential or relevant detail or item. A minor detail may amount to a “material particular” if it is of consequence to the facts of the case.

Question 7

Investigations into company fraud complaints will usually involve enquirers with the Ministry of Commerce. State four possible sources available in there?

Answer 7

1. Companies Office.
2. Official assignee.
3. Registrar of Companies.
4. Insolvency Services.

Question 8

a) What “knowledge” must an accused person have to be liable for making a false representation?
b) How can “knowledge” be established?

Answer 8

a) The accused must know or believe that it is false in a material particular, or be reckless whether it is false. Absolute certainty is not required and wilful blindness as to falsity of the statement will suffice.

b) Knowledge can be established by:
1. An admission.
2. Implication from the circumstances surrounding the event.
3. Propensity evidence.

Question 9

Propensity evidence may be relevant in some deception cases. When may evidence of propensity be called in cases of deception?

Answer 9

Whether on previous or later occasions to the offence charged, is admissible in cases of deception where there is a sufficiently strong connection between the offences.

Question 9

Police investigating the fraudulent use of credit cards or cheques must conduct enquires with the bank where the account is domiciled.

List the information an investigator must obtain from the bank accounts manager?

Answer 9

1. Account holders full name, occupation, private and business addresses and telephone numbers.
2. Date the account was opened.
3. Account history and how it has been operated.
4. Date the cheque book or credit card was reported missing.
5. How and by whom a loss was reported.
6. Serial numbers of any missing cheques.
7. Details of any cheques dishonoured and returned.
8. Whether the account holder is suspected of issuing valueless cheques.

Question 9

The term computer system is defined in s248 of the Crimes Act 1961. State the definition?

Answer 9

Computer means:
(i) A computer or
(ii) 2 or more interconnected computers or
(iii) Any communication links between computers or to remote terminals or another device or
(iv) 2 or more interconnected computers combined with any communication links between computers or to remote terminals or any other device and
(b) Includes any part of the items described in paragraph (a) and all related input, output, processing, storage, software, or communication facilities, and stored data.

Question 10

What two points were made in the case R v Harney in relation to recklessness?

Answer 10

“Recklessness means the conscious and deliberate taking of an unjustified risk. In New Zealand 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”.

Question 11

What are the essential ingredients of the forgery offences as set out in section 256(1) of the crimes act 1961?

Answer 11

Everyone is liable to imprisonment for a term not exceeding 10 years who makes a false document with the intention of using it to obtain any property, privilege, service, pecuniary advantage, benefit or valuable consideration.

Question 11

When interviewing a victim who alleges they have been defrauded, what two important questions should be asked by the investigator?

Answer 11

1. That the false representation was believed and
2. That it was the consequence of that belief that the victim parted with his or her money.

Question 12

You are investigating a cheque fraud series where the account has been opened and a cheque book obtained using fictitious details. Apart from the normal bank enquirers in relation to cheque offences:

List four possible enquirers you should make regarding the offender opening the account with the bank.

Answer 12

1. Account number and the date it was opened.
2. Nature and amount of the first deposit.
3. Details of any other deposit.
4. Details used when the account was opened.
5. Descriptions of the suspect and any of their associates at the time.
6. Names and addresses of the employees who opened the account and any other employees who can identify the suspect. Interview these employees and obtain statements.
7. Serial numbers of the cheques supplied.
8. Details of the dishonoured cheques and the people or firms defrauded.

Question 13

Apart from a false representation what other matters would constitute a deception as defined under section 240(2) of the crimes Act 1961?

Answer 13

(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 13

What are essential ingredients of section 228 of the Crimes Act 1961, Taking or Using Documents?

Answer 13

Everyone is liable to imprisonment for a term not exceeding 7 years who, with intent to obtain any property, service, pecuniary advantage, or valuable consideration -
(a) Dishonestly and without claim of right, takes or obtains any document or
(b) Dishonestly and without claim of right, uses or attempts to use any document.

Question 14

Set out the ingredients of the offence of obtaining credit by deception under section 240(1) (b) of the crimes Act 1961?

Answer 14

(1) Everyone is guilty of obtaining by Deception or causing loss by deception who, by any deception and without claim of right -
(b) in incurring any debt or liability , obtains credit.

Question 15

What was held in the case R v Morley as it relates to section 240(2) in relation to an intention to deceive?

Answer 15

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.

Question 15

What is the definition of Obtain as per section 217?

Answer 15

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

Question 15

What are the two core elements when it comes to an offence under 220 theft by a person in a special relationship?

Answer 15

(a) That he or she have received property on terms or in circumstances which, to the accused’s knowledge, affect what the accused may do with the property or its proceeds or require the accused to act in accordance with the requirements of another person

AND

(b) That the accused intentionally departed from the relevant obligation.

Question 15

In R v Hayes what was held in relation to pecuniary advantage?

Answer 15

A pecuniary advantage is “anything that enhances the accused’s financial position. It is that enhancement which constitutes the element of advantage”.

Question 16

What is the difference between forgery and altering and reproduction of a document?

Answer 16

1. With forgery, an intent to deceive only is required, not an intent to obtain by deception, also in a charge of forgery the document must be a ‘false document’ as defined in section 255, Crimes Act 1961.
2. The difference between the offences of forgery and altering or reproducing a document rest in the varying definitions of “document’ and “intent”.
3. In the offence of altering, concealing, destroying, or reproducing a document, you must prove that the offender intended to obtain by deception.
4. Any document can be altered or reproduced in the change of altering, concealing, destroying, or reproducing a document.

Question 16

Define Access when it comes to computer offences?

Answer 16

Means instruct, communicate with, store data in, receive data from, or otherwise make use of any of the resources of the computer system.

Question 17

Define Claim of Right Section 2 Crimes Act 1961?

Answer 17

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 18

Define Property Section 2 Crimes Act 1961.

Answer 18

Property includes real and personal property, and any estate or interest in any real or personal property, money, electricity, and any debt, and anything in action, and any other right or interest.

Question 19

Define Credit as per Fisher V Raven?

Answer 19

‘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.

Question 20

Define False Representation under section 240(2)(a) Crimes Act 1961.

Answer 20

(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.

Question 21

Explain the 4 Natures of belief in “claim of right”.

Answer 21

1. Belief must be a belief in a proprietary or possessory right in 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. Belief must be actually held by the defendant.

Question 22

Define / explain R v Music in relation to the short definition of a document?

Answer 22

Essentially a document is a thing which provides evidence or information or serves as a record.

Question 22

Define / explain R v Laverty in relation to inducement.

Answer 22

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.

Question 22

Set out the ingredients of the offence of obtaining or causing loss by deception under section 240(1)(d) of the crimes Act 1961?

Answer 22

(1) Everyone is guilty of obtaining by deception or causing loss by deception who, by any deception and without claim of right -
(d) causes loss to any other person.

Question 23

What are essential ingredients of section 249(1), Crimes Act 1961, Accessing a computer system for dishonest purposes.

Answer 23

Everyone is liable to imprisonment for a term not exceeding 7 years who, directly or indirectly, accesses any computer system and thereby, dishonestly or by deception, and without claim of right -

(a) obtains any property, service, privilege, service, pecuniary advantage, benefit or valuable consideration.
(b) cause loss to any other person.

Question 24

Define / explain R v McKay in relation to intention.

Answer 24

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 24

Define / explain R v Cox in relation to the two elements of possession.

Answer 24

Possession involves two element. First the physical element, is actual or potential physical custody or control.
Second is the metal element, 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 25

What are essential ingredients of section 249(2), Crimes Act 1961, Accessing a computer system for dishonest purposes.

Answer 25

Everyone is liable to imprisonment for a term not exceeding 5 years who, directly or indirectly, accesses any computer system with intent, dishonestly or by deception, and without claim of right -
(a) TO obtain any property, privilege, service, pecuniary advantage, benefit or valuable consideration or
(b) cause loss to any other person.

Question 26

Explain R v Morley.
As it relates to what meaning was conveyed to the party that now complains of a false representation.

Answer 26

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

Question 27

The key to a successful company fraud investigation is to seek advice early.

Outline the suggested sources of specialist information you should canvass.

Answer 27

1. Police accountants and legal officers,
2. Ministry of commerce.
3. Commerce Commission.
4. Financial Markets Authority
5. NZ Customs
6. Liquidators and receivers.

Question 28

What is Continuing Representation?

Answer 28

In many cases a representation by words or conduct may have a continuing effect.

Ex) Entering a restaurant and ordering dinner represents that diner will follow the normal practice and pay for the meal.

If during the course of dinner, the diner decides to avoid payment, the continuing representation will become false, and obtaining of food will come within S240.

Question 29

Define Device, Trick and Stragegem?

Answer 29

Device
- A plan, a scheme or trick

Trick
- An action or scheme undertaken to fool, outwit or deceive

Stragegem
- A cunning plan or scheme especially for decieving or trickery

Question 30

Proof of Inducement?

Answer 30

• That the false representation was believed AND
• That it was the consequence of that belief that the Victim parted with his or her money..

Question 31

What is Voidable Title?

Answer 31

A title obtained by deception, fraud, duress or misrepresentation is called a “voidable title”. This means that the title can be voided by the seller.

Until the title is voided, the defrauded has voidable title, and can confer good title on anyone who acquires the goods from him or her in good faith and for value.