Crimes Act definition of Obtain.
s217, CA 1961
Obtain, in relation to any person, means obtain or retain for himself or herself or for any other person.
Crimes Act definition of property.
s2, 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 any thing in action, and any other right or interest.
Define pecuniary advantage.
Hayes v R
A pecuniary advantage is anything that enhances the accused’s financial position. It is that enhancement which constitutes the element of advantage.
Define valuable consideration.
Hayes v R
A valuable consideration is anything capable of being valuable consideration, whether of a monetary kind or of any other kind; in short, money or money’s worth.
Crimes Act definition of ‘dishonestly’.
s217, CA 1961
In relation to an act or omission, means done or omitted without a belief that there was express or implied consent to, or authority for, the act or omission from a person entitled to give such consent or authority.
Claim of right
s2, CA 1961
In relation to any act, 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.
s219(4), CA 1961
For tangible property, theft is committed by a taking when the offender moves the property or causes it to be moved.
Crimes Act definition of ‘document’.
s217, CA 1961
Includes part of a document in any form, and includes:
- paper/material containing anything that can be read
- photos, negatives and related items
- discs, tapes, cards or other devices/equipment on which information is stored and can be reproduced
Case law relevant to the discussion of the element of ‘uses or attempts to use any document’ in s228(b).
Hayes v R
An unsuccessful use of a document is as much use as a successful one….Because the use does not have to be successful it may be difficult to draw a clear line between use and attempted use.
Definition of ‘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 -
(i) knows that it is false in a material particular; or
(ii) is reckless as to whether it is false in a material particular;
(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.
R v Morley
An intention to deceive requires that the deception be practiced in order to deceive the affected party. Purposeful intent is necessary and must exist at the time of the deception.
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.
Case law to define possession.
R v Cox
Possession involves two elements. The first, often called the physical element, is actual or potential physical custody or control. The second, often described as the mental element, is 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,
Liability definition of debt.
Money owing from one person to another.
Definition of liability.
Legally enforceable financial obligation to pay.
Fisher v Raven
Fisher v Raven
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.
Define ‘person’ in s240(1)(d).
Gender neutral. Proved by judicial notice or circumstantial evidence.
How is service defined in R v Cara?
Service is limited to financial or economical value and excludes privileges or benefits.
In regards to the definition of dishonesty, the defendant can raise reasonable doubt on the basis of a mistaken belief. What are the two kinds of mistaken belief?
- That the act or omission was, expressly or impliedly, consented to by a person entitled to give consent
- that the act or omission was authorised by a person entitled to authorise it.
In regards to the concept of claim of right, what is important to remember in relation to timing?
The belief must be held at the time of the conduct alleged to constitute the offence.
Legislation for attempts.
s72(1), CA 1961
Everyone who, having an intent to commit an offence, does or omits an act for the purpose of accomplishing his object, is guilty of an attempt to commit the offence intended, whether in the circumstances it was possible to commit the offence or not.
What is required to prove a deception?
- That there was an intent to deceive
- That there was a representation by the defendant
- That the representation was false
- That the defendant either knew it to be false in a material particular OR was reckless whether it was false in a material particular
Explain the concept of ‘continuing effect’ in relation to a representation. Provide an example.
In many cases a representation by words or conduct may have a continuing effect. Eg. Entering a restaurant and ordering a meal represents that the diner will follow the normal practice and pay for the meal.
As a general rule, silence or non-disclosure will not be regarded as a representation. Explain one exception to this rule with an example.
Where an incorrect understanding is implied from a course of dealing and the defendant has failed to negate that incorrect understanding.
Eg. Police v Dronjak
Defendant was shopping in department store. Told by assistant that car radio was $695.83. Told assistant he would pay at checkout. By the time he got to checkout it had two price tags, the other for $38.88 (no evidence he tampered with tags). Defendant allowed cashier to charge incorrect price.
In regards to a deception, the prosecution must prove that the defendant knew that the representation was false in a material particular or was reckless as to its falsity. How can knowledge be established?
- an admission
- implication from the circumstances surrounding the event
- propensity evidence
How is recklessness defined in R v Harney?
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.
Explain the subjective/objective test in regards to recklessness.
It must be proved that the defendant
- was aware of the risk and proceeded regardless (subjective)
- that it was unreasonable for him to do so (objective)
In terms of s240(2) there must be an intent to deceive. What else is required to be shown under s240(2)(b)?
- That there was some material particular that was not disclosed
- That the defendant was under a duty to disclose
- That the defendant failed to perform that duty
Define the term ‘lien’.
A right over another person’s property to protect a debt charged on that property.
If dishonestly obtained property is found on the premises of which the defendant has control, is that sufficient to prove control?
No. It must be proved that they defendant exercised some control over it. (Adams on Criminal Law, 2001)
Case law in regards to the timing of the intention to deceive.
R v McKay
Credit had been obtained but at that time the accused did not possess an intent to deceive.
List the elements of s240(1)(c), including the title.
Obtaining by deception or causing loss by deception
By any deception and without claim of right induces or
causes any other person to deliver over, execute, make, accept, endorse, destroy, or alter any document or thing capable of being used to derive a pecuniary advantage.
What needs and does not need to be proved under s240(1)(d)?
The prosecution must prove
- that the loss was caused by a deception
- that it was reasonably foreseeable some more than trivial loss would occur
But need not prove that the loss was intentionally caused.
Outline the penalties for deception offences.
If the loss caused or the value of what is obtained or sought to be obtained
- $1000+ = max 7yrs
- $500-$1000 = max 1yr
- less than $500 = max 3mths
What is the meaning of the term ‘propensity evidence’ as it is used in s40, 41 and 43, Evidence Act 2006? It is defined in s40(1)(a) and (b).
(a) means evidence that tends to show a person’s propensity to act in a particular way or to have a particular state of mind, being evidence of acts, omissions, events or circumstances with which a person is alleged to have been involved; but
(b) does not include evidence of an act or omission that is -
(i) one of the elements of the offence for which the person is being tried; or
(ii) the cause of action in the proceeding in question.
What does s43(1) say about ‘probative value’?
The prosecution may offer propensity evidence about a defendant in a criminal proceeding only if the evidence has a probative value in relation to an issue in dispute in the proceeding which outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant.
When assessing the prejudicial effect of evidence on the defendant, the Judge must consider what?
(a) whether the evidence is likely to unfairly predispose the fact-finder against the defendant; and
(b) whether the fact-finder will tend to give disproportionate weight in reaching a verdict to evidence of other acts or omissions.
What is the term given to a title obtained by deception, fraud, duress or misrepresentation?
What is necessary to avoid title?
- Communication with the deceiver to advise them that you are aware of the deception. Can be by letter or in person. If they cannot be contacted a public notice in the newspaper is sufficient.
- Making a complaint to police that the property was obtained by deception.
What are the two core elements that need to be proved under s220, CA 1961?
- That he or she have received property on terms or in circumstances which, to the defendant’s knowledge, affect what the accused may do with the property or its proceeds or require the defendant to act in accordance with the requirements of another person
- the defendant intentionally departed from the relevant obligation.
Forgery, s256(1) and (2), CA 1961
(1) 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.
(2) Every one is liable to imprisonment for a term not exceeding 3 years who makes a false document, knowing it to be false, with the intent that it in any way may be used or acted upon, whether in New Zealand or elsewhere, as genuine.
When is a forgery complete?
As soon as the document is made with the intent in (1) or the knowledge and intent in (2).
List the elements of Using forged document, s257(1), CA 1961.
Knowing a document to be forged, -
(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.
List the elements of Altering, concealing, destroying, or reproducing document with intent to deceive, s258(1), CA 1961.
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, or 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.
What are the two mental elements of s258, Altering, concealing, destroying, or reproducing document with intent to deceive?
- An intention to obtain by deception any property, privilege, service, pecuniary advantage, benefit or valuable consideration
- An intention to cause loss to any other person
List the elements of s259(1), Using altered or reproduced document with intent to deceive.
Knowing any document to have been made or altered in the manner and with the intent referred to in s258, 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) uses or deals with or acts upon the document; or
(b) causes any person to use or deal with or act upon the document.
List the elements of Accessing computer systems for dishonest purposes, s249(2). CA 1961.
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) to cause loss to any other person.
Before beginning an investigation into credit card and cheque offences, which external agency should you consult first?
The bank’s fraud investigators.
Briefly describe the four categories of company fraud.
Category A - large scale thefts and other dishonesty offences against employers by employees
B - Dishonesty offences committed against financial institutions by people outside the institution obtaining money from it through deception and GST fraud against the IRD by businesses.
C - Commercial fraud committed against the public by people who, either as individuals or through the guise of a company, entice people to invest money.
D - Dishonesty offences committed by professional people in a position of trust, such as solicitors and accountants, against their clients.
List six sources that may be able to assist in a company fraud investigation and outline the type of assistance they can offer.
- Police accountants and legal officers: Police forensic accountants at Auck, Wgtn and Chch are available to give you advice and assist personally. Legal Section can prepare POs, SWs and charges.
- MBIE (Ministry of Business, Innovation and Employment): Possible sources of information are Registrar of Companies, Companies Office, Official assignee, Insolvency Services.
- Commerce Commission: Can assist in matters relating to the Fair Trading Act 1986, pyramid selling.
- Financial Markets Authority: Can assist in matters relating to the Financial Markets Authority Act 2011 and issuing of prospectuses.
- NZ Customs: Can assist in matters involving international travel and CAPPS alert.
- Liquidators and receivers: These administer companies that are in liquidation or receivership. Usually accountants.
What is the criteria for a fraud to be handed over to the Serious Fraud Office?
- Actual or potential loss in excess of $2,000,000
- Where the facts, law or evidence is of great complexity
- Of great interest or concern (eg. involving a public figure)
Define the term ‘device’.
A plan, scheme or trick.
Define the term ‘trick’.
An action, scheme undertaken to fool, outwit or deceive.
Define the term ‘stratagem’.
A cunning plan or scheme especially for deceiving an enemy or trickery.
List six things the Judge may consider when assessing the probative value of propensity evidence.
a) frequency with which the acts, omissions, events, circumstances which are subject of the evidence have occurred
b) connection in time between acts, omissions etc. which are subject of evidence and the acts, omissions etc. which constitute the offence for which defendant is being tried
c) extent of the similarity between the two
d) number of persons making allegations against the defendant that are the same as, or similar to, the subject of the offence for which defendant is being tried
e) whether allegations described in paragraph (d) nay be result of collusion or suggestibility
f) extent to which the acts, omissions etc. which are subject of evidence and acts, omissions etc. which constitute offence are unusual
Define computer system.
(i) a computer; or
(ii) two or more interconnected computers; or
(iii) any communication links between computers or to remote terminals or another device; or
(iv) two 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.
Explain how a company can be guilty of a criminal offence.
When a senior executive of the company, acting on behalf of the company, commits an offence.
The executive is also personally liable for their actions.
The company is the principal offender and the executive is liable as a party.
When arresting on behalf of the Serious Fraud Office, explain the roles of each organisation.
SFO do not have power of arrest. Police arrest. SFO prepares file and is responsible for prosecution. Police must never represent the SFO in Court.
Explain the difference between the offence of forgery and the offence of altering, concealing, destroying or reproducing a document.
Any doc can be altered etc but in a forgery the doc must be a false doc.
R v Morley regarding the element of representation in s240(2).
Representations must relate to a statement of existing fact, rather than a statement of future intention.
Case law relevant to the element of Dishonestly.
Hayes v R
The question is whether the belief is actually held, not whether that belief is reasonable. However, reasonableness may be relevant as evidence on the issue of whether the belief was actually held.
Case law relating to definition of document.
R v Misic
Essentially a document is a thing which provides evidence or information or serves as a record.