Dishonestly Takes/ Obtains Document

Question 1

Dishonestly Takes/ Obtains document section 228 (1) (a) Crimes Act 1961

Answer 1

Dishonestly

Definition:

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.

Case law:

HAYES v R – The question is whether the belief was actually held, not whether the belief was reasonable. However, reasonableness may be relevant as evidence on the issue of whether the belief was actually held.

Without claim of right

Definition:

A belief at the time of the act in a proprietary or possessory right to property, in relation to which the offence is alleged to have been committed.

Nature of belief:

Belief in proprietary and possessory right to property

Belief is in relation to the property in question

Belief held at the time if the offence

Belief actually held by the defendant

Takes / obtains

Definition:

Takes - Theft by taking is complete as soon as the offender moves or causes the property to be moved.

Obtains - Obtains or retains for himself, herself or any other person

Any document

Definition:

A document includes;

Any paper or other material used for writing or printing that is marked with matter capable of being read

Any photograph, photographic negative, plate, slide, film or microfilm, or any photostatic negative

Any disc, tape, wire, soundtrack, card or other material or device in or on which information, sounds or other data are recorded, stored or embodied so as to be capable of being reproduced

Any material by means of which information is supplied to any device used for recording, storing or processing information

Any material derived from information recorded or stored or processed by any device used for recording, storing or processing information

Case law

R v MISIC – Essentially a document is a thing which provides evidence or information or serves as a record.

With intent to obtain any property, service, pecuniary advantage, or valuable consideration

Definitions:

Intent – Doing a deliberate act (actus reus) to achieve a specific result (mens rea). Defend must intend to obtain and intend to obtain by deception.

Obtain – Obtain or retain for himself, herself or any other person

Deception – A false representation, whether oral, documentary or by conduct, where the person making the representation intends to deceive any person and either:
(a) knows it to be false in material particular
(b) is reckless as to whether it is false in material particular

An omission to disclose a material particular with intent to deceive any person where there is a duty to disclose.

A fraudulent device, trick or stratagem used with intent to deceive any person.

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

Service – Limited to financial or economic value and excludes privileges or benefits.

Pecuniary advantage – Anything that enhances the financial position of the accused

Valuable consideration – Anything capable of being valuable consideration, whether of a monetary kind or any other kind. In short, money or money’s worth.

Case law:

HAYES v R – Anything that enhances the accused’s financial position. It is that enhancement which constitutes the element of advantage.

Question 2

Dishonestly taking or using a document (uses)
Section 228(1)(b) CA 1961

Answer 2

-Dishonestly
- Without claim of right
- Uses / attempts to use
- Any document
- With intent to obtain any;
property / service / pecuniary advantage / valuable consideration

Dishonestly

Dishonestly (s217 CA 1961)

Done without belief in consent from a person with authority.

RTS

Without claim of right

Without claim of right (s2 CA 1961)

No belief of possessory or proprietary right to property.

RTS

Uses / Attempts to use

Uses (s2 CA 1961)

Single action or continuing use.

Attempts

Hayes –Unsuccessful use of a document is much as attempt as a successful one.

RTS

Any document

Document (s217 CA 1961)

Misic -Thing which provides evidence or information or service as a record.

RTS

With intent to obtain any;
property / service / pecuniary advantage / valuable consideration

Intent

Commit the act, get the specific result

Collister –Words/actions before/during/after, nature of offence and circumstantial evidence.

Property (s2 CA 1961)
Real and personal property, estate or interest.

Service
Service is limited to financial or economic value, excl privilege or benefit.

Pecuniary advantage

Hayes –Something that enhances the accused financial position.

Valuable consideration
Hayes –Anything capable of being valuable consideration.Money or monies worth.

RTS

Question 3

Obtains by deception or cause loss by deception (ownership)
Section 240(1)(a) CA 1961

Answer 3

By any deception

Without claim of right

Obtains ownership / possession/ control over

Any property / privilege, service, pecuniary advantage, benefit, valuable consideration, direct or indirectly

By any deception

Deception (s240CA 1961)
a false representation – either by oral / documentary / conduct made with intent to deceive and 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

Morley –Intention to deceive requires purposeful intent at the time the deception is practiced.

RTS

Without claim of right

Without claim of right (s2 CA 1961)

No belief at the time to proprietary or possessory right to property.

RTS

Obtains;
Ownership
Possession

Control over

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

Possession
Cox –Two elements, physical and mental. Custody and control, knowledge and intention.

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

RTS

Any;

Property

Privilege

Service
Pecuniary advantage
Benefit
Valuable consideration

Direct or indirectly

Property (s2 CA 1961)
Real and personal property, estate or interest.

Privilege
Special right or advantage.

Service
Cara –Service is limited to financial or economic value, excl privilege or benefit.

Pecuniary advantage

Hayes –Something that enhances the accused financial position.

Valuable consideration
Hayes –Anything capable of being valuable consideration.Money or monies worth.

RTS

Question 4

Obtaining by deception (service)
Section 240(1)(b) CA 1961

Answer 4

By any deception

Without claim of right

In occurring debt or liability

Obtains credit

By any deception

Deception (s240(2) CA 1961)

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

Morley –Intention to deceive requires purposeful intent at the time the deception is practiced.

RTS

Without claim of right

Without claim of right (s2 CA 1961)

No belief at the time to proprietary or possessory right to property.

RTS

In occurring any debt OR liability

Debt
Money owing from one person to another.

Liability
Legally enforceable financial obligation.

Debt or liability must be legally enforceable. If contract is void or illegal, there is no offence.

RTS

Obtains credit

Obtains

Obligation to pay or repay at time received.This obligation must be legally enforceable.

Credit

Intangible, must relate to monetary obligation.

RTS

Question 5

Cause loss by deception
Section 240(1)(d) CA 1961

Answer 5

By any deception

Without claim of right

Causes loss to any other person

By any deception

Deception (s240(2) CA 1961)

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

Morley –Intention to deceive requires purposeful intent at the time the deception is practiced.

RTS

Without claim of right

Without claim of right (s2 CA 1961)

No belief at the time to proprietary or possessory right to property.

RTS

Cause loss to any other person

Loss

Financial detriment

Morley –Loss must have been caused by deception. Only has to play a part in the loss.

Any other person

JN CE.

Someone other than Defendant.
Must be a loss, although may not benefit anyone.

Question 6

Liability synopsis

Answer 6

If they steal or take a document with the intent - 228(1)(a)

If they use the document - 228(1)(b)

If they commit deception and get something physical or a discount or something - 240(1)(a)

If they commit deception and get something that they should be repaying - 240(1)(b)

If they don’t get anything - s240(1)(d)

Question 7

What was held in R v Morely?

Answer 7

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 8

Cheque Fraud series enquires

Answer 8

• The account number and the date the account was opened.
• The nature and amount of the first deposit and details of any other deposits.
• The details the offender used when the account was opened.
• CCTV or photographs of the offender.
• Obtain descriptions of the suspect and any of their associates or vehicles at the time.
• Obtain a sample of the suspects handwriting from bank accounts.
• The serial numbers of the cheques supplied.

Question 9

Company Fraud Investigation Advice Sources

Answer 9

• Police Accountants & legal officers.
  ° Police forensic accountants can give advice and assist personally.

  ° Police legal section can help in preparing production orders, search warrants and charges.

• Ministry of business, innovation & employment.
  ° possible sources of information are, register of companies, companies office, official assignee, insolvency services.
• Commerce commission.
  °the commerce commission can assist in matters relating to colon the Fair trading 1986 commer the unsolicited goods and services Act 1975, pyramid selling.
• Financial Markets Authority.
  ° the financial markets authority can assist in matters relating to the securities act 1978 and issuing of prospectuses.

-NZ Customs
° customs can assist in matters involving international travel and CAPPS alerts.

• Liquidators & Recievers
  ° these administrator companies that are in liquidation or receivership. They are usually accountants.

Question 10

What is meant by the following terms referred to and section 240 (1) (b) of the Crimes Act 1961:

a) Debt
b) Liability

Answer 10

Debt means money owing from one person to another.

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

Question 11

Where a person has been induced to part with goods by deception, what are the 2 steps he can take to avoid the deceivers title?

Answer 11

1. Take all other possible steps to bring it to the vendors notice example by writing a letter.
2. Advise the police that the goods were obtained by deception.

Question 12

To successfully prosecute a person on a charge of (using altered or reproduced documents with intent to deceive) under section 259 of the crimes that 1961 name three mental elements you must prove.

Answer 12

1) the defendant must know it’s 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 have used 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.

Question 13

a) What knowledge must the accused person have to be liable for making a false representation.

b) How can knowledge be established?

Answer 13

a) the accused must know or believe that it is false inner 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 14

Hayes v R - Dishonesty

Answer 14

Hayes v R [2008] 2 NZLR 321; (2008) 23 CRNZ 720.
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:

Question 15

R v Misic (Document)

Answer 15

R v Misic [2001] 3 NZLR 1
“Essentially a document is a thing which provides evidence or information or
serves as a record.”

Question 16

Hayes v R - Unsuccessful use of document

Answer 16

Hayes v R (2008) 23 CRNZ 720 (SC) [para 13]
“An unsuccessful use of a document is as much use as a successful one. An
unsuccessful use must not be equated conceptually with an attempted one. The
concept of attempt relates to use not to the ultimate obtaining of a pecuniary
advantage, which is not a necessary element of the offence. Because the use
does not have to be successful it may be difficult to draw a clear line between use
and attempted use.”

Question 17

Definition of Computer
S248 Crimes Act 1961

Answer 17

A 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 other device or,

iv) 2 or more interconnected computers combined with any communication links between computers or to remote terminals or any other device an,

b) includes any part of the items described in paragraph a and all related input.

Question 18

Propensity Evidence for deception cases.

Answer 18

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

For propensity evidence to be admissible the ultimate issue is the degree to which the probative value of the evidence outweighs the prejudicial effect.

Question 19

R v Crooks

Relation to knowledge

Answer 19

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

Question 20

R v Harney

Relation to recklessness

Answer 20

Recklessness involves foresight of dangerous consequences that could well happen, together with an intention to continue the course of conduct regardless of the risk.

Question 21

Two important questions for fraud victims…

Answer 21

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 22

R v Morely

S240 (2) intention to deceive

Answer 22

An intention to the sieve 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.

R v Morely: Representations must relate to a statement of existing fact, rather than a statement of future intention.

Question 23

False representation - different ways. 240 (2)

Answer 23

A) An omission to disclose a material particular, with intent to deceive any person, in circumstances where there is a duty to disclose it or

B) A fraudulent device, trick, or stratagem used with intent to deceive any person.

Question 24

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

Answer 24

° the differences between the offences of forgery and altering or reproducing a document rest in the varying definitions of “document” and “intent”.

° with forgery and 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 the charge of altering, concealing, destroying, or reproducing a document. However, in the charge of forgery the document must be a false document as defined in section 255 of the Crimes Act 1961.

Question 25

Fisher v Raven (Credit)

Answer 25

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 26

Judges consideration for Propensity Evidence:

Answer 26

a) the frequency with which the acts, omissions, events, or circumstances which are the subject of the evidence have occurred.

b) the connection in time between the acts, omissions, events, or circumstances of the evidence and those of the offence for which the defendant is being tried.

c) the extent of similarity between the acts or omissions or events of the evidence of those of the offence for which the defendant has been tried.

d) the number of persons making allegations against the defendant that are similar to the offence for which the defendant has been tried.

e) whether the allegations described in paragraphs (d) may be the result of collusion or suggestibility.

f) the extent to which the acts, omissions, events, or circumstances of the evidence and those of the offence for which the defendant has been tried are unusual.

Question 27

Cameron v R

Answer 27

Recklessness is established if:

a) the defendant recognized that there was a real possibility that:
i) his or her actions would bring about the proscribed result; and/or

     ii) that the proscribed circumstances existed; and

b) having regard to that risk those actions were unreasonable.

Question 28

R v Cox (Possession)

Answer 28

Possession involves two elements.

The first, physical element, is actual or potential physical custody or control.

The second, the mental element is combination of knowledge and intention: knowledge in the sense of an awareness by the accused at the substance and his position and an intention to exercise position.

Question 29

R v McKay

Answer 29

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 30

R v Laverty

Answer 30

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 31

Penalty for Deception Offences
Section 241 Crimes Act 1961

Answer 31

Everyone who is guilty of obtaining by deception or causing loss by deception is liable as follows:

a) if the loss caused or the value of what is obtained or sought to be obtained exceeds $1000 to imprisonment for a term not exceeding 7 years.

b) if the loss caused or the value of what is obtained or sought to be obtained exceeds $500 but does not exceed $1000 to imprisonment for a term not exceeding 1 year;

c) if the loss caused or the value of what is obtained or sought to be obtained does not exceed $500 to imprisonment for a term not exceeding 3 months.

Question 32

Summary Points

Answer 32

° There are four specific offences contained within section 228 of the Crimes Act 1961 which may be used as alternatives or additions to the provisions of theft, obtaining by deception and obtaining credit by fraud.

° Deception is defined in section 240 (2) of the Crimes Act 1961 and requires the prosecution to prove:
- 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
1) knew it to be false in a material particular OR
2) was reckless whether it was false in a material particular.

• ‘Credit’ refers to a legally enforceable 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.
• The difference between theft and obtaining by deception lies with the concepts of possession and title or ownership. If someone has gained something by deception, the owner has given them ownership of the thing freely, although under deception. If something has been stolen it has been taken without permission, and therefore the thief has possession but not title or ownership.
• to prove a charge of forgery under section 256(1) you need to prove the suspect:
  ° made a false document.
  ° with intent to use it to obtain property etc
• Alternatively, under section 256 (2) you need to prove the suspect:
  ° made a false document
  ° knowing it to be false
  ° with intent that it in any way be used or acted upon as genuine.
  ° essentially a false document must lie about itself or intend to convey a lie.