Police investigating the fraudulent use of credit cards or cheques must conduct enquiries with the bank where the account is domiciled. List the information an investigator must obtain from the accounts manager:
- The account holds full name, occupation, private and business addresses and telephone numbers
- The date the account was opened
- The account history and how it has been operated
- The date the cheque book or credit card was reported missing
- How and by whom a loss was reported
- The serial numbers of any missing cheques
- Details of any cheques dishonoured and returned
- Whether the account holder is suspected of issuing valueless cheques
Company deception investigations seldom involve offences committed by a company as an entity. Rather, the term comprises of 4 categories of offending.
What is Category A and list 4 examples
Large scale thefts and other dishonesty offences against employers by employees - Usually people such as accountants and managers who use their position to manipulate the company’s financial system.
- Dishonestly taking / using documents
- Theft by person in special relationship
- Altering, concealing, destroying, or reproducing documents
- Using altered or reproduced documents
- Accessing a computer for dishonest purposes
- Forgery
- False accounting
Company deception investigations seldom involve offences committed by a company as an entity. Rather, the term comprises of 4 categories of offending.
What is Category B and list 4 examples
Dishonesty offences committed against financial institutions by people outside the institution obtaining money from it through deception. Includes deception against the IRD by businesses that make false GST returns.
- False statement by promoter
- Dishonestly taking / using documents
- Accessing a computer for dishonest purposes
- Forgery
- False accounting
Company deception investigations seldom involve offences committed by a company as an entity. Rather, the term comprises of 4 categories of offending.
What is Category C and list 4 examples
Commercial deception committed against the public by people who, either as individuals or through the guise of a company, entice people to invest money.
- False statement by provider
- Obtaining ownership, possession or control by deception
- Obtaining credit by deception
Company deception investigations seldom involve offences committed by a company as an entity. Rather, the term comprises of 4 categories of offending.
What is Category D and list 4 examples
Dishonesty offences committed by professional people in a position of trust, such as solicitors and accountants, against clients.
- Theft by person in special relationship
- Dishonestly taking / using document
- Using forged documents
Investigations into company fraud complaints will usually involve enquiries with the Ministry of Commerce. State 4 possible possible sources available:
- Registrar of Companies
- Companies Office
- Official Assignee
- Insolvency Services
What is meant by the following terms referred to in Section 240(1)(b) CA61
a) Debt
b) Liability
Debt - means money owing from one person to another
Liability - means a legally enforceable financial obligation to pay, such as the cost of a meal
When interviewing a victim who alleges they have been defrauded, what 2 important questions should be asked by the investigator?
The victim of the deception is usually questioned to elicit answers proving:
- That the false representation was believed
AND
- That it was the consequence of that belief that the victim parted with his / her money
The key to a successful company fraud investigation is to seek advice early. Outline the suggested sources of specialist information
- Police Accountants and legal officers
- MBIE
- Commerce Commission
- Financial Markets Authority
- NZ Customs
- Liquidators and Receivers
What “knowledge” must an accused person have to be liable for making a false representation? And How can knowledge be established?
The accused must know or believe that it is false in a 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.
Knowledge can be established by:
- An Admission
- Implication from the circumstances surrounding the event
- Propensity evidence
Section 43 (3) Evidence Act 2006 What may the judge consider when assessing the probative value of propensity evidence?
(a) The frequency with which the acts / omissions / events / circumstances which are subject of the evidence have occurred
(b) The connection in time between the acts / omissions / events / circumstances
(c) The extent of similarity between acts / omissions / events / circumstances
(d) The number of persons making allegations against the defendant
(e) Whether allegations described in (d) may be the result of collusion or suggestibility
(f) The extent to which the acts / omissions / events / circumstances are unusual
Explain the case law Cameron v R
Recklessness is established if:
(a) The defendant recognised 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
Explain Hayes v R - the definition of 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 Claim of right as per Section 2 Ca61
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.
Obtain is defined in Section 217 of the Crimes Act 1961
Obtain - In relation to any person, means obtain or retain for himself or for any other person
Property is defined in Section 2 Crimes Act 1961
Property includes real and personal property, and any estate or interest in an real or personal property, money, electricity, and any debt, and any thing in action, and other right or interest
What was held in the case R v Morley as it relates to Section 240(2) in relation to an intention to deceive?
“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”
What was held in 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”
What are the elements of Section 220(1) Crimes Act 1961 - Theft by person in a special relationship
- Any person who
- Has
Received
Is in possession of
Has control over
- Any property
- On terms or in circumstances that the person knows require the person -
(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 requirement of any other person
An offence under Section 220 CA61, Theft by person in a special relationship requires proof of 2 core elements. Explain both
(a) That he recieved property on terms or in circumstances which, to the defendant’s knowledge, affected what the defendant may do with the property or it’s proceeds or require the defendant to act in accordance with the requirements of another person
(b) That the defendant intentionally departed from the relevant obligation.
Propensity evidence may be relevant in some deception cases. When may evidence of propensity be called in cases of deception?
Propensity evidence, whether on previous or latter occasions to the offence charged, is admissible in cases of deception where there is a sufficiently strong connection between the offences.
For example; evidence that other cheques drawn by the defendant were dishonoured may be evidence of the circumstances in which the cheque that is the subject matter of the charge was drawn, and therefore directly relevant to the defendant’s state of mind(intent) when he issued it
To successfully prosecute a person on a charge of using altered or reproduced documents with intent to deceive under Section 259 CA61, name the three mental elements you must prove:
- Firstly the defendant must know that the document has been altered with intent to deceive
- Secondly, 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 and property, service, pecuniary advantage, valuable consideration, privilege or benefit or cause loss to any other person
- Thirdly, there must be an intention to acquire or retain the property or to cause loss “by deception”
Set out the ingredients of the offence of obtaining by deception under section 240(1)(b) CA61
(1) Everyone is guilty of obtaining be deception or causing loss by deception who;
By any deception and without claim of right
(b) In incurring any debt or liability, obtains credit
In relation to 240(2)CA61, besides making a false representation what else constitutes deception?
Deception means;
(a) A false representation, whether oral, documentary or by conduct, where the person making the representation intends to deceive any person and;
(i) knows that it is false in a material particular
(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 strategem used with intent to deceive any person
