Shorts Flashcards
Company fraud investigations seldom involve offences committed by a company as an entity. Rather the term comprises 4 categories of offending.
Detail those 4 categories of offending and briefly discuss them.
Category A - Large scale thefts and other dishonesty offences against employers by employees EG accountants or managers
Category B - Dishonesty offences committed against financial institutions by people outside the institution obtaining money from it through deception. Includes GST deception against IRD.
Category C - Commercial deception committed against the public by people who, either as individuals or through the guise of a company, entice people to invest money.
Category D - Dishonest offences committed by professional people in a position of trust, such as solicitors and accountants against their clients.
In R v Cox it was found that both physical and mental elements must be proved to satisfy possession. Outline and briefly discuss the requirements of each of these elements.
Physical element having actual or potential physical custody control
Mental element is a combination of knowledge and intention. Knowledge in the sense of awareness that the substance is in his possession and the intention to exercise this possession.
In relation to claim of right (S2 CA61) there are 4 beliefs which must be held by the person exercising the claim. Name the four beliefs and comment briefly on each.
-Firstly, the belief must be a belief in propitiatory or possessory right to the property
- Secondly, the belief must be about the rights to the property in relation to which the offence is alleged to have been committed.
- Thirdly, the belief must be held at the time of conduct alleged to constitute the offence.
- Fourthly, the belief must be actually held by the defendant.
To successfully prove a charge under S220(1) CA61, theft by a person in a special relationship, the prosecution must prove 2 core elements. What are they?
- He/she has received property on terms or in circumstances which to the defendants knowledge affect what they might do with the property or proceeds
- The defendant intentionally departed from the relevant obligation
The key to a successful company fraud investigations is to seek advice early. Outline 4 of the suggested sources of specialist’s information you should initially canvas.
Specialist sources include Police accountants, legal officers, MBIE, Commerce Commission and the financial markets authority.
False representations are an essential element of the offence of deception. How is false representation defined within the definition of deception under S240(2) CA 61?
(a) A false representation, 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 the material OR
(b) An omission to disclose a material particular, with intent to deceive any person
(c) A fraudulent device, trick, or stratagem used with intent to deceive any person.
Police investigating the fraudulent use of credit cards or cheques must conduct enquiries with the bank where the account is domiciled. List 4 pieces of information an investigator should obtain from the bank manager
- Name, address and contact detail to the person who created the account
- Record of transactions, bank account records and ATM withdrawals
- The date the account was created
- Serial numbers of cheques involved.
S2 CA61 is commonly known as the interpretation section and as such is the source of many definitions held throughout the act. What is the defence of “Claim of right” as set out in S2 CA61?
Claim of Right S2 CA 61 – 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 the belief may be based on ignorance or mistake of fact or of any matter of law other than the enactment against which the offences is alleged to have been committed.
The case Fisher v Raven relates to the obtaining of credit and an obligation to pay. What were the points held in this case?
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 to an obligation to supply services or good.
A person goes into a restaurant with the intention of having a meal and leaving without paying for it. Once they have eaten their meal, they in fact run off without paying. You are considering charging them with obtaining credit by deception under S240(1)(b) CA61. What are the elements of the offence?
- By deception
- Without claim of right
- In incurring any debt or liability
- Obtains credit
To successfully prosecute a person on a charge of using altered or reproduced documents with intent to deceive under S259 CA61 you must prove 3 mental elements. Name the 3 mental elements you must prove.
- Knowing any doc to have been altered with the intent referred in S258
- Intent to obtain by deception any P P PA S VC or to cause loss to any person
- (a) Uses or deals with or acts upon the doc OR
- (b) Causes any person to use/deal/act upon
What is an Oral example of Obtaining by deception or causing loss by deception?
Verbally claiming to own goods that are in fact subject to a hire purchase agreement
What is a Conduct example of Obtaining by deception or causing loss by deception?
Representing oneself to be a collector for a charity by appearing to be carrying an official collection bag.
What is a Documentary example of obtaining by deception or causing loss by deception?
Presenting a false certificate of qualification or completing a valueless cheque on an account in which there are no funds knowing the cheque will not be honoured.
How can “Knowledge” of false representation be proved?
- Admissions
- Implications from the circumstances surrounding the event
- Propensity evidence
