Thursday, March 30, 2017

Fraud by deception.

I have spent time over the last three days researching our offence of obtaining by deception and in particular the issue of obtaining a pecuniary advantage by dishonestly evading repayment of a debt. The core offence in this area of fraudulently obtaining property  used to be obtaining property by false pretences. This struck problems when I took the Wilkinson case to the Court of Appeal in 1998. As a result of that decision there was a major rewrite of Part ten of the Crimes Act. In enacting an offence of obtaining or causing loss by deception NZ drew heavily on the UK 1968 Theft Act. The enactment of our S229A in 1973 also drew on the concept of pecuniary advantage. Australia also enacted similar provisions to S16 of the Theft Act long before NZ did in 2003. However in 2006 the UK repealed the Theft Act and enacted a fraud act. So it took NZ 35 years to copy the UK obtaining by deception provision but the section enacted was very generalized. The Hayes decision in our Supreme Court reversed previous authority to hold that just because you may be entitled to something doesnt mean you cant seek to obtain it dishonestly. But the issue of obtaining a pecuniary advantage by evading the repayment of a debt or the return of money lent still seems to remain controversial. The issue was addressed in the Victorian Court of Appeal in Lasic in 2005. The Court held that evasion of repaying a debt was an offence. But what of a situation where you have received a deposit for a contract. Can you obtain a pecuniary advantage by dishonestly avoiding the repayment of the deposit. If you had the money sure I can see it but what if the money was spent and you had no other money. You really dont obtain any monetary advantage by your deceptive conduct. You dont retain any money as a result of your actions.