Deception MM & SA

Question 1

Deception

Section + definition

Answer 1

Section 240(2) CA 61

(2) means
(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 a false representation, OR
(ii) is reckless as to whether it is false in a material particular, OR
(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 2

Obtains Credit by deception.

What must be proved?

Answer 2

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 3

Obtains by credit

What must be present at the time of the deception

Answer 3

Intention to deceive at the time the credit is obtained.

Question 4

Dealing with credit card and cheque offences

Short Answer

Answer 4

INTERVIEW

• Interview the informant
• Contact the accounts manager at the bank
• Find out fictitious account details
• Obtain a sample of the suspect’s handwriting
• With dishonoured cheques interview account holder
• Contact other Police stations and fraud squads
• Find out whether the offender was photographed or CCTV

Ongoing Enquiries

• advised immediately of any further dishonoured cheques
• recover the original cheques and forward them to you
• have experts examine documents
• Inform your colleagues and the Fraud Squad Collator

Locate Offender

• Check any relevant addresses.
• Follow up any obvious information such as car registration
• issue a bulletin board message
• If there are no suspects, consider early fingerprinting

Arrest
- recover evidence such as credit cards, compromised/stolen eftpos
- Interview the suspect
- Find out about the suspect’s:
•knowledge of the state of the account
•expectation of funds
•overdraft arrangement, if any
- Obtain a Statement and handwriting specimens
- conduct enquiries to check the suspect’s explanation

Prosecution
- obtain your supervisor’s authority to prosecute
- Prepare a blanket charge if:
•the suspect intends pleading guilty
•it is difficult to specify individual dates for a series of offences.

Question 5

Company fraud processes

Answer 5

Large Scale Thefts against employer
•ensuring that the informant provides all the documentary evidence
•tracing the suspect’s actions
•establishing where the money went
•executing production orders or search warrants on the suspect’s bank accounts and home to seize evidence
•interviewing the suspect.

Dishonesty offences committed by people outside
•ensuring that the informant provides all the documentary evidence
•tracing the suspect’s actions
•establishing where the money went
•executing production orders or search warrants on the suspect’s bank accounts and home to seize evidence
•interviewing the suspect.

Commercial fraud committed against the public
•confirming company officer details through a company search
•interviewing victims to determine the false representations and inducements made to them
•identifying, through the victims’ transactions, the details of the suspect company’s bank
•executing production orders or search warrants on the suspect’s bank accounts and premises to have evidential material produced or seized
•interviewing the suspect.

Dishonesty offences committed by professional people in a position of trust against their clients
•putting together the paper trail
•gathering documentary exhibits
•interviewing appropriate clients
•preparing and executing production orders or search warrants
•interviewing the suspect
•preparing the case in such a way that it can be understood by counsel and juries.

Question 6

Company Fraud

External organisation assistance

Answer 6

Ministry of Business, Innovation and Employment
•Registrar of Companies.
•Companies Office.
•Official assignee.
•Insolvency Services.

Commerce Commission
•the Fair Trading Act 1986
•pyramid selling.

Financial Markets Authority
assist in matters relating to the Financial Markets Authority Act 2011 and the issuing of prospectuses

NZ Customs
international travel and CAPPS alerts.

Liquidators and receivers
These administer companies that are in liquidation or receivership

Serious Fraud Office
•All fraud complaints with an actual or potential loss in excess of $2,000,000
•All fraud complaints where the facts, law or evidence is of great complexity
•Any fraud complaint of great interest or concern

Question 7

Computer System

Answer 7

Widely defined to include all related input, output, processing, storage, software, or communication facilities, and stored data. It can encompass one computer or a network of computers or a computer connected to the internet with the potential of connecting to millions of networked computers

Question 8

Title

defintion

Answer 8

A right or claim to the ownership of property

In other words, “title” simply means a legal right to the property.

Question 9

What is necessary to void title?

Answer 9

• Communication to B. The taking of all possible steps to bring it to B’s
notice, eg by writing a letter, text, phone call etc.
• By advising the police that the vehicle was obtained by fraud.

Question 10

Voidable title

Answer 10

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

Question 11

When Sale of Goods Act 1908, s25, is relevant

Answer 11

“Where the seller of goods has a voidable title thereto, but his title has not been avoided at the time of the sale, the buyer acquires a good title to the goods, provided he buys them in good faith and without notice of the seller’s defect of title.”

Question 12

When does title pass?

Answer 12

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

Question 13

Theft by person in special relationship

What is special relationship

Answer 13

(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.

Question 14

False Document

Answer 14

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 else. These various forms of lies make a document false.

Question 15

False Document Material Alterations

Answer 15

• additions
• insertions
• deletions
• obliteration
• erasures
• removal of material or otherwise.

Question 16

Forgery vs
altering etc
reproducing a
document

Answer 16

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.

Question 17

Intention to deceive case law

Answer 17

R v Morley [2010] 2 NZLR 608 (CA) [para 53]
An intention to deceive requires that the deception is practised in order to deceive the affected party. Purposeful intent is necessary and must exist at the time of the deception.

Question 18

Obligation to pay case law

relates to obtains by credit

Answer 18

Fisher v Raven [1964] AC 210, 231; [1963] 2 All ER 389, 394
‘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 19

Timing of intention to deceive caselaw

Answer 19

R v McKay [1961] NZLR 256
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 20

What must Prosecution prove for deception?

Answer 20

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 false in a material particular.

Question 21

Prosecution may offer propensity evidence

Answer 21

Section 43, Evidence Act 2006

(1) 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.
(2) Judge must take into account the nature of the issue in dispute

(3) Judge may consider
- Frequency of the acts
- connection in time of the acts
- extent of similarity
- number of allegations that are similar
- whether the allegations described in paragraph (d) may be the result of collusion or suggestibility:
- the extent to which the acts are unusual

(4) Judge must consider
(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

Question 22

Representation

Caselaw

Answer 22

R v MORLEY

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

Question 23

How can knowledge be established?

Answer 23

• Admissions
• Implications from the circumstances
• propensity