Deception

Question 1

Property

Answer 1

Section 2, CA 1961
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 2

Obtain

Answer 2

Section 217, CA 1961
Obtain or retain for himself or herself or for any other person.

Question 3

Hayes v R

Answer 3

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

An unsuccessful use of a document is a much use as a successful one.

Question 4

Dishonestly

Answer 4

Section 217, CA 1961
In relation to an act or omission, means done or omitted without a belief that there was expressed or implied consent to, or authority for, the act or omission from a person entitled to give such consent or authority.

Question 5

Claim of Right

Answer 5

A belief at the time of the act in a proprietary or possessory right in the 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 6

R v Misic (document)
EIR

Answer 6

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

Question 7

What is required to be proved
IRRKR

Answer 7

An intent to deceive
A representation by the Defendant
Representation was false;
Knew it to be false in a material particular OR
Reckless whether it was false in a material particular

Question 8

R v Morley

Answer 8

1. 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.
2. Representation must relate to a statement of existing fact, rather than a statement of future intention.

Question 9

Cameron v R

Answer 9

Recklessness is established if:
Real possibility
Proscribed result
Circumstances existed
Having regard to that risk those actions were unreasonable.

Question 10

Continuing effect

Answer 10

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

Eg. 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 payment, the continuing representation will become false, and the obtaining of food will come within s240.

Question 11

Nature of belief required

Answer 11

1. A belief in a proprietary or possessory right in property.
2. A belief that the Defendant had proprietary or possessory right.
3. belief must be held at the time of the conduct alleged to constitute the offence.
4. Belief must be held by the Defendant.

Question 12

Knowledge can be established by
PIA

Answer 12

1. Admission
2. Implication from circumstances surrounding the event.
3. Propensity evidence.

Question 13

Device, trick, or stratagem:

Answer 13

Device: A plan, scheme or trick

Trick: An action or scheme undertaken to fool, outwit, or deceive.

Stratagem: A cunning plan or scheme especially for deceiving an enemy, or trickery.

Question 14

Distinction between theft and obtaining by deception:

Answer 14

1. Obtained without the owners permission.
2. Title is not passed on.

Question 15

Special interest

Answer 15

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 16

Special interest lien:

Answer 16

The Defendant was the owner of a motor car being repaired by a garage. The garage proprietor placed a ‘lien’ over the vehicle until payment of the debt was made.

The effect of this was to permit him to retain possession of the car and gave him a ‘special property or interest in the vehicle.

Question 17

Debt

Answer 17

Money owing from one person to another.

Question 18

Liability

Answer 18

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

Question 19

Credit

Answer 19

Refers to the obligation on the debtor to pay or repay, and the time given for them to do so by the creditor.

Question 20

Fisher v Raven

Answer 20

‘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 21

Legally enforceable:

Answer 21

The obligation to pay must be legally enforceable against whomever the credit is obtained (usually the Defendant)

Question 22

Continuing representations:

Answer 22

‘Adam’s in Criminal Law’ said that in many cases a representation, whether by words or conduct, may be of continuing effect. This, entry into a restaurant and ordering a meal would usually be a representation that one will follow the normal practice and pay for the meal at the appropriate time. If, during the course of the meal, a diner decides to avoid payment, the continuing representation of an intention to pay will become false and any subsequent result braiding of food will come within s240

Question 23

Hire purchase

Answer 23

Where goods are obtained on hire purchase by a false representation, the offence committed is deception.

Question 24

Proof of the inducement

Answer 24

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 25

Prosecution may offer propensity evidence: SCAN-FC

Answer 25

When assessing the probative value of propensity evidence, the Judge may consider, among other matters, the following: 1. Frequency 2. Connection in time between the acts. 3. Extent of similarity between the acts. 4. Number of persons making allegations. 5. Whether the allegations may be the result of collusion or suggestibility. 6. Extent of which the acts, omissions, events, or circumstances constitute the offence for which the Defendant is being tried are unusual.

Question 26

Voidable title DFDM

Answer 26

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.

Question 27

Example: Hire purchase

Answer 27

Where goods are purchased on hire purchase, title is not obtained until the full amount is paid (ie. title remains with the complainant/owner)

Question 28

Two core elements of proof required:

Answer 28

1. Received property on terms or in circumstances 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 2. That the Defendant intentionally departed from the relevant obligation.

Question 29

Forgery MWO

Answer 29

Section 256, CA 1961 Every one 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 30

Using forged documents: KUUC

Answer 30

Section 257, CA 1961 Every one is liable to imprisonment for a term not exceeding 10 years who, knowing a document to be forged, a A. Uses, the document to obtain any property, privilege, service, pecuniary advantage, benefit, or valuable consideration: or B. Uses, deals with, or acts upon the document as if it were genuine: or C. Causes any other person to use, deal with, or act upon it as if it were genuine.

Question 31

Altering, concealing, destroying, or reproducing documents with intent to deceive: WAM

Answer 31

Section 258, CA 1961 Every one is liable to imprisonment for a term not exceeding 10 years who, with intent to obtain by deception any property, privilege, service, pecuniary advantage, benefit, or valuable consideration, or to cause loss to any other person, - A. Alters, conceals, destroys any document, or causes any document to be altered, concealed, or destroyed: or B. Makes a document or causes a document to be made that is, in whole or in part, a reproduction of any other document.

Question 32

Forgery vs altering etc reproducing a document

Answer 32

The differences between the offences 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. An document can be altered or reproduced in the charge of altering, concealing, destroying, or reproducing a document. However, in a charge of forgery the document must be a ‘false document’ as defined in section 255 of the CA 1961.

Question 33

Define Access when it comes to computer offences? CSI-RO

Answer 33

In relation to any computer system, means instruct, communicate with, store data in, receiver data from, or otherwise make use of any of the resources of the computer system. Access is widely defined and covers almost all interactions with a computer system such as using computer at work and more remote forms of access such as viewing a website or using a virus. Access requires that the person instructing or communicating with the computer system has some form of connection with the computer system through which instructions or communications may pass: Adam’s on Criminal Law.

Question 34

Computer system:

Answer 34

1. A computer, or 2. 2 or more interconnected computers; or 3. Any communication links between computers or to remote terminals or another device; or 4. 2 or more interconnected computers combined with any communication links between computers or to remote terminals or any other device: Includes any part of the items festive in paragraph (a) and all related input, output, processing, storage, software, or communication facilities, and stored data.

Question 35

Interviewing: contact the accounts manager at the bank where the account is is domiciled are find out? SWORD-FH

Answer 35

1. The accounts holders full name, occupation, private and business addresses and telephone numbers. 2. The date the account was opened. 3. The account history and how it has been operated. 4. The date the cheque book or credit card was reported missing. 5. How and by whom a loss was reported. 6. The 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 36

Company deception Types of investigations:

Answer 36

Category A: Large scale thefts and other dishonesty offences against employers by employees. Category B: Dishonesty offences committed against financial institutions by people outside the Institution obtaining money from it through deception. Category C: Commercial fraud committed against the public. Category D: Dishonesty offences committed by professional people in a position of trust.

Question 37

Deception

Answer 37

A false representation either by oral, documentary, conduct made with intent to deceive any known, or reckless if false in material particular OR an omission to disclose a particular where there is a duty to do so OR a fraudulent device, trick, or stratagem used with intent to deceive any person.

Question 38

Ownership

Answer 38

Goods come under control, don’t have to physically have them

Question 39

R v Cox (Possession)

Answer 39

Two elements, physical and mental. Custody and control, knowledge and intention.

Question 40

Control

Answer 40

Power of directing or commanding. Do not need to possess.

Question 41

Privilege

Answer 41

Special right or advantage

Question 42

Roberts car is in the local garage having been repaired. Robert could not afford to pay for the repair before getting the car back. Knowing that he does not have funds in his account to cover the cost of the repairs, he hands over a cheque to the repairer and received the car in return. He drives home:

Answer 42

Robert has obtained the vehicle by deception , as someone else has a special property or interest in it

Question 43

To prove a charge of theft by a person in a special relationship under section 220(1), it is necessary to prove that the person knew they had to: AP

Answer 43

Account to any other person for the property, or for any proceeds arising from the property

Question 44

The case R v Morley (2009) NZCA 618 discussed the matter of loss in relation to s240(1)(d) Crimes Act 1961 (causing loss by deception). Which statement best describes what was held in this matter:

Answer 44

The prosecution must prove that the loss alleged by the victim must have been induced by, or caused in reliance, upon the deception

Question 45

Brown booked into a motel and on checking in he offered to pay in advance. He was told that he could pay the account in the morning. He left early without checking out or paying. What is Brown's liability?

Answer 45

No offence is committed

Question 46

A fraudulent device, trick or stratagem used with intent to deceive any person must be:

Answer 46

Fraudulent. meaning dishonest in the traditional moral sense

Question 47

False document includes a document of which the whole or any material part purports to be made: AF

Answer 47

a) By a person who did not authorise its making b) By a fictitious person

Question 48

The serious fraud office investigates serious or complex fraud complaints. An investigator from that office may only make an arrest of a fraud suspect:

Answer 48

Under no circumstances as the investigator does not have powers of arrest

Question 49

Both possession and title will pass on to a bona fide or innocent purchaser:

Answer 49

When the property is brought by a third party from a person who obtained it by deception before the original owner voids any title

Question 50

In relation to the offence of obtaining credit by deception under section 240(1)(b) of the crimes act 1961, which of the following statements is not correct: (a) A debt or liability must have been incurred at the time credit is obtained (b) The debt or liability must be legally enforceable (c) Under the definition of obtain in s217 of the crimes act 1961. It is not sufficient that the accused obtained the extension of credit to another person

Answer 50

(c) Under the definition of obtain in s217 of the crimes act 1961. It is not sufficient that the accused obtained the extension of credit to another person

Question 51

A person can only be charged under section 249(1) in relation to accessing a computer system for dishonest purpose when:

Answer 51

He/she actually obtained any property, or privilege, service, pecuniary advantage, benefit or valuable consideration or loss to any other person

Question 52

A senior executive of a company who is acting on behalf of the company commits a series of deceptions causing other companies to sustain financial losses. In these circumstances any criminal liability rests with:

Answer 52

The senior executive only as the state of mind for the offending was his alone

Question 53

What was held in R v Crooks in relation to knowledge

Answer 53

The accused may be liable if their conduct has amounted to wilful blindness and this is equated to knowledge

Question 54

A person can be said to have control of a thing if:

Answer 54

It is proved that the accused did in fact exercise some control over the thing

Question 55

For propensity evidence to be admissible the ultimate issue is:

Answer 55

The degree to which the probative value of the evidence outweighs the prejudicial effect

Question 56

The term valuable consideration means that a person can:

Answer 56

Obtain anything capable of being valuable consideration, whether of a monetary kind or of any other kind

Question 57

What was held in R v Harney? FTI

Answer 57

A foresight of the dangerous consequences together with intent to continue the course regardless of the risk

Question 58

How can title be voided?

Answer 58

Make a complaint to the Police

Question 59

A person who has property on hire purchase has:

Answer 59

possession only

Question 60

What is an example of obtaining a valuable consideration?

Answer 60

(a) Monetary payment in return for goods or services. (b) Goods given in return for services provided. (c) Issuing a false invoice to receive payment for goods never supplied. (d) All of the above. (d) All of the above.

Question 61

John finds a gym membership card for the local gym I swimming pools, its a hot day so John goes to the swimming pools and uses this card to gain entry without paying. What is John's criminal liability?

Answer 61

Uses a document

Question 62

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 62

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 63

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 63

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 64

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 64

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

Question 65

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 65

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 66

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

Answer 66

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

Question 67

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

Answer 67

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 68

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

Answer 68

Recklessness means the conscious and deliberate taking of an unjustified risk

Question 69

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 BANDDDDS

Answer 69

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 dishonored cheques and the people or firms defrauded.

Question 70

Define / explain R v Laverty in relation to inducement.

Answer 70

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 71

Define / explain R v McKay in relation to intention.

Answer 71

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 72

The key to a successful company fraud investigation is to seek advice early . Outline the suggested sources of specialist information you should canvass. CALM-FN

Answer 72

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