Short Answer Questions

Question 1

Outline the four categories in relation to company fraud and provide a brief description of each

Answer 1

Category A
Large scale theft/dishonesty against employers by employees (usually accountants, managers etc manipulating financial systems)

Category B
Dishonesty committed against financial institutions by people outside the institution obtaining money through deception. Includes GST deception against IRD.

Category C
Commercial deception committed against the public by people/companies enticing people to invest money.

Category D
Dishonesty committed by professional people in positions of trust e.g. solicitors/accountants against their clients.

Question 2

Outline the meaning of the following terms:

a) Debt
b) Liability

Answer 2

Debt means money owning from one person to another.

Liability means a legally enforceable financial obligation to pay, such as the cost of a meal.

Question 3

To prosecute a person successfully on a charge (of using altered or reproduced documents with intent to deceive) under section 259 of the Crimes Act 1961, outline the three elements you must prove.

Answer 3

1. The defendant must know that the document has 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 by the courts. Reference the relevant case law in your answer.

Answer 4

R v Morley
The term is not defined. Examples have included 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 and Brookbanks state “It must be capable of being false so it must contain a proposition of fact.”

Question 5

What must be proven in relation to a false representation?

Answer 5

1. That there was an intent to deceive.
2. That there was a representation by the defendant.
3. That the representation was false; and that the defendant either:
   - knew it to be false in a material particular
   - was reckless as to whether it was false in a material particular

Question 6

In relation to an intention to deceive, what was held in R v Morley?

Answer 6

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 7

Explain what is meant by a continuing effect and provide an example.

Answer 7

In many cases representations by words or conducts may have a continuing effect. This captures representations which indicate an intent in an ongoing manner.

For example, entering a restaurant and ordering dinner represents that the diner will follow the normal practice and pay for the meal. If during the course of dinner, the diner decides to avoid the payment, the continuing representation will become false, and the obtaining of food will come within s240.

Question 8

Explain the role of silence or non-disclosure in relation to representations and provide relevant case law.

Answer 8

As a general rule, silence or non-disclosure is not considered a representation.

One exception to this rule was seen in the case R v Dronjak. In this case, the defendant placed a label for a lower price onto an item while shopping, and allowed the cashier to charge the lower price (not pointing out the higher price tag on the goods).

It was commented in this case that by maintaining silence in the face of a mistake known to him and by deliberately refraining from drawing the cashier’s assistant to this mistake, Dronjak obtained title to the radio by false pretence (deception).

Question 9

State your understanding of the term “false in a material particular”.

Answer 9

The term “material” in respect of a particular carries its normal meaning of 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.

The term therefore carries a comparable meaning to “false in an important sense”.

Question 10

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

Answer 10

• Registrar of Companies
• Companies Office
• Official assignee
• Insolvency services

Question 11

What knowledge must an accused person have to be liable for making a false representation?

Answer 11

The accused must know or believe that it is false in a material particular or be reckless as to whether it is false in a material particular.

Absolute certainty is not required and wilful blindness as to falsity of the statement (sticking one’s head in the sand) will suffice.

Question 12

How can “knowledge” be established in relation to a false representation?

Answer 12

Knowledge can be established by:
- An admission
- Implication from the circumstances surrounding the event
- Propensity evidence

Question 13

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

Answer 13

Computer system 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.

Question 14

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

Answer 14

Propensity evidence, 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 15

In relation to s220 (Theft by person in special relationship) state the two core elements required to prove the charge.

Answer 15

a) That he or she has received property on terms or in circumstances which, to the defendant’s 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.

Question 16

When interviewing a victim who alleges they have been defrauded, what two important points should be established?

Answer 16

• 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 17

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

Answer 17

-Makes
-A false document
-With the intention of using it to obtain any property, privilege, service, pecuniary advantange, benefit or valuable consideration.

Question 18

Outline what would constitute a deception as defined under section 240(2) of the Crimes Act 1961.

Answer 18

• A false representation, whether oral, written or by conduct, where the person making the representation intends to deceive and knows the representation to be false in a material particular or is reckless as to whether it is such; or
• An omission to disclose a material particular, with intent to deceive any person, in circumstances where there is a duty to disclose it; or
• A fraudulent device, trick or stratagem used with intent to deceive any person.

Question 19

What is the difference between forgery and altering/reproducing a document?

Answer 19

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.

In the offence of altering / concealing / destroying or reproducing a document, you must prove that the offender intended to obtain by deception.

Any document can be altered or reproduced in a charge of altering/reproducing a document.

However, in a charge of forgery, the document must be a “false document” as defined in section 255 of the Crimes Act 1961.

Question 20

What is the definition of a false document under section 255 of the Crimes Act 1961?

Answer 20

false document means a document, in whole or material part —

• which purports to be made by someone who did not make it / a fictitious person
• which purports to be made by or on behalf of any person who did not authorise its making, or on behalf of a fictitious person;
• which has been altered, whether by addition, insertion, deletion, obliteration, erasure, removal, or otherwise, and that purports to have been altered by a person who did not authorise it or by a fictitious person.
• which is a reproduction of any other document, purporting to have been made by a person who did not authorise it or by a fictitious person.
• that is made in the name of a person, either by that person or by that person’s authority, with the intention that it should pass as being made by some other person who did not make it, or by a fictitious person.

Question 21

Define “access” in relation to computer offences.

Answer 21

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

Question 22

What was held in R v Crooks with respect to knowledge?

Answer 22

The accused may be liable if their conduct has amounted to wilful blindness and this is equated to knowledge (conduct of the accused amounting to putting their head in the sand).