Definitions Flashcards
(114 cards)
1
Q
Obtain
A
Means to obtain or retain for himself or herself or for any other person
2
Q
Property
A
Property includes real and personal property, any estate or interest in any real or personal property, money, electricity, and any debt, and anything in action and any other right or interest
3
Q
Service
A
Is limited to financial or economic value and excludes privileges
4
Q
Pecuniary advantage
A
Is anything that enhances the accused’s financial position.
Basically means economic or monetary advantage. eg cash from stolen goods, clothing or cash obtained by credit card, a discount using student ID card, avoiding a deferring payment of debt.
5
Q
Valuable consideration
A
Is anything capable of being Valuable consideration, whether of a monetary kind or of any other kind; in short money or moneys worth. eg false invoice, goods given in return for service, monetary payment in return for goods or service
6
Q
Dishonestly
A
In relation to an act or omission, means done or omitted without a belief that there was expressed or implied consent to, or authority for, the act or omission from a person entitled to give such consent or authority
7
Q
Without claim of right
A
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.
8
Q
Nature of belief required
A
1) Belief must be a belief in proprietary or possessory right in property. Must be a belief that relates to an element of ownership of the property in question or the right to take or obtain possession of it. Could include intangible property that cannot be possessed but may be owned.
2) Belief must be about rights to the property in relation to which the offence is alleged to have been committed
3) The belief must be held at the time offence was committed
4) Belief must be actually held by the defendant, not required to be reasonable and may be based on ignorance or mistake. however reasonableness of the belief may be relevant in determining credibility
9
Q
Takes (Theft)
A
Defined in conjunction with theft, for tangible property, theft is committed by a taking when the offender moves the property or causes it to be moved. Ownership, possession or control may be directly or indirectly obtained. Includes coming into possession with, or without the consent of the owner.
10
Q
Document:
A
Document means a document, or any part of a document, in any form and includes without limitation:
- any paper or other material used for writing or printing that is marked with matter capable of being read
- any photograph or any photographic negative, plate, slide, film, microfilm,
- any disc, tape, wire, sound track, card, or other material or device in or on which information, sounds, or other data are recorded, stored.
- any material by means which information is supplied, whether directly or by means any equipment, to any device used for recording or storing or processing information
11
Q
Uses or attempts to use:
A
Prosecution must prove that offender used or attempted to use the document with intent to obtain the property, service, valuable consideration, PA, VC. Use can include a single action, or a continuing use of the document
12
Q
Deception means:
A
a) a false representation, oral documentary, or by conduct 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 it is false in a material particular; or
b) an omission to disclose, 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
13
Q
Representation:
A
Past or present fact, future event or existing intention, belief knowledge or state of mind. It must be capable of being false so it must contain a proposition of fact
14
Q
False representation:
A
Representation must be false, and defendant must know or believe that it is false in a material particular, or be reckless to whether it is false. Wilful blindness will suffice.
15
Q
Must prove:
A
- there was 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
16
Q
Intention to deceive:
A
No offence is committed unless the false statement, non disclosure, or trick is made or used by the defendant for the purpose of deceiving the victim or in the knowledge victim is virtually certain to be deceived.
Deception need not have been made to the person actually suffering a loss provided that the deception was the cause of the relevant conduct.
17
Q
Intent:
A
Firstly an intent to commit the act and secondly, an intention to get a specific result.
18
Q
A representation by the defendant:
(R v Morley)
A
Representation can be oral, documentary, or by conduct, or combined thereof. Look beyond literal meaning of express words used by defendant and consider if a particular meaning can be implied from his or her conduct. Necessary to analyse what meaning was conveyed to the receiving party.
19
Q
Silence
A
Silence or non disclosure will not be regarded as a representation, apart from when an incorrect understanding is implied from course of dealing and defendant fails to correct this incorrect understanding. apart from label swapping- buying something for lower with incorrect price tag on it and not alerting cashier to this. Didn’t tamper with label, but concealed correct label from shop assistances view.
20
Q
Knowledge:
A
means knowing or correctly believing and can be established by:
- an admission
- implication from the circumstances surrounding the event
- propensity evidence
Accused may also be liable if their conduct amounted to wilful blindness and thus equated to knowledge
21
Q
False in a material particular:
A
Is an important, essential or relevant detail or item. (something important or something that matters)
Must establish that the defendant knows or believes representation is false in a material particular or is reckless as to whether it is false.
22
Q
Omission:
A
Is inaction. Not acting. It can either be a conscious decision not to do something or not giving thought to the matter at all.
23
Q
Duty to disclose:
A
Along with showing an intent to deceive, s240(2)(b) requires you to show that there was some material particular that was not disclosed, that the defendant was under duty to disclose and that the defendant failed to perform that duty
eg civil law, eg parties are in a contractual relationship.
24
Q
Fraudulent device, trick or stratagem
A
s240(2)(c) concerns a fraudulent device, trick, or stratagem used with intent to deceive any person.
This effectively covers any type of fraudulent conduct but conduct must be accompanied by a intent to deceive. Scheme or trick must be fraudulent, dishonest in the traditional sense
25
Device, trick or stratagem defined:
Device- a plan, scheme or trick
Trick- an action or scheme undertaken to fool, outwit or deceive
- Stratagem: a cunning plan or scheme especially for deceiving an enemy or trickery.
Underlying all terms are the concepts of deceit and dishonesty.
25
Device, trick or stratagem defined:
Device- a plan, scheme or trick
Trick- an action or scheme undertaken to fool, outwit or deceive
- Stratagem: a cunning plan or scheme especially for deceiving an enemy or trickery.
Underlying all terms are the concepts of deceit and dishonesty.
26
Ownership, or possession of, or control over:
May be directly or indirectly obtained
27
Any privilege, service, pecuniary advantage, benefit or valuable consideration:
The words privilege or benefit are not limited to a privilege or benefit of a pecuniary nature. Both of these words mean a special right or advantage. Eg using another persons gym card, access to medical services, withdrawal of an assault charge, reduction in sentence for an offence. Does not need to be a financial loss or injury to the person who has been defrauded.
28
Obtains ownership, possession or control
Goods are obtained by a defendant if the goods come under their control, even though they may not have physical possession of them. Property obtained can include, if a deception is made to one person but the property is actually obtained by another person, provided the deception operated on the mind of the person giving up the property. Eg sending a cheque in the mail, obtaining is complete at the time of posting.
29
Difference between theft and obtaining by deception:
In theft, property is obtained without the owners permission and title is not passed on.
30
Ownership
Ownership is synonymous with the concept of title, sometimes a person parting with goods not only relinquishes possession to the other person, they also pass on legal rights of ownership eg title of the goods
31
Possession
Often goes hand in hand with ownership. However, you can possess something without having title to it (eg driving someone elses car)
Frequently, title to or goods ownership and possession are passed to the offender. The person parting with the goods intents to give the other person both possession and ownership. Eg purchase of goods using a fraudulent bank note. Offender receives both possession of the goods and title to them.
31
Possession
Often goes hand in hand with ownership. However, you can possess something without having title to it (eg driving someone elses car)
Frequently, title to or goods ownership and possession are passed to the offender. The person parting with the goods intents to give the other person both possession and ownership. Eg purchase of goods using a fraudulent bank note. Offender receives both possession of the goods and title to them.
32
Special interest
It is sufficient if the person from who the goods were obtained had some special property or interest in the goods without having actual ownership of them
33
Special interest lien:
A lien is a right over another property to protect a debt charged on that property. Eg owner of a motor car being repaired in garage, garage owner placed a lien over the vehicle until payment of the debt was made. This permitted him to retain the vehicle and gave him a special property or interest in the vehicle
34
Control:
to control something means to exercise authoritative, dominating influence or command over it. Prosecution does not need to prove that the accused was in actual possession of the property, it may be sufficient that the accused exercised control over the property through an agent. It is not sufficient enough that the dishonestly obtained property was found at the premises of which the defendant had control, it must be proved that they exercised some control over the particular property.
35
Dept or liability incurred:
Must be legally enforceable. 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
36
Credit:
Refers to the obligation on the debtor to pay or repay, and the time given for them to do so by the creditor.
Fisher v Raven
Credit may involve varying lengths of time, credit can be obtained over varying lengths of time, as in loan agreements, or for a matter of minutes, such as time taken to consume a meal or haircut. At the end of the period of credit, payment is expected to be made.
Gaining credit is no unlawful itself, unless it is accompanied by an intent to deceive and must exist at the time when the deception committed. So when credit is obtained, later decision to not repay is insufficient. In relation to meals at a restaurant, in order to convict offender you must prove they had intent to deceive when they either entered the restaurant or started their meal.
37
s240(1)(b)
Must prove identity of suspect and that they:
- by deception and without claim of right
- in incurring any dept or liability
- obtained credit
38
Situations where credit may be obtained:
- Obtaining money on loan
- Extending existing overdraft facilities
- Renting or leasing a dwelling
39
Intangible thing:
Credit is an intangible thing. credit obtained must be in respect of a monetary obligation. If it is non monetary, appropriate charge may be under (1)(a)
39
Intangible thing:
Credit is an intangible thing. credit obtained must be in respect of a monetary obligation. If it is non monetary, appropriate charge may be under (1)(a)
Sitting down, ordering a meal without any intention of paying for it later is obtaining by credit by deception
40
Continuing representations:
Words or conduct, may be a continuing effect. Entry into a resturant and ordering a meal would usually be a representation that one will follow the normal practice and pay for the meal at the appropriate time. if during the course of a meal a diner decides to avoid payment, the continuing representation of an intention to pay will become false.
41
Induces:
To persuade, bring about or give rise to
42
Proof of the inducement:
Proved by direct evidence from the person alleged to have been defrauded. Must prove:
- that the false representation was believed, and
- that it was the consequence of that belief that the victim parted with his or her money
If false representation is not believed by the person to whom it is made, but he still parts with his money as a consequence of it, it cannot be said the property was obtained by deception.
43
Causes:
Accused must cause the loss
44
Deliver over;
Is to surrender up someone or something
45
To execute;
Is to put a course of action into effect
46
To endorse:
Is to write or sign on a document
47
To Alter:
Is to change in character or composition, typically in a comparatively small but significant way
48
To accept:
is to receive something
49
Document in s240(1)(c)
The document must be capable of being used to derive PA
50
Thing s240(1)(c):
Broad and encompassing concept. Thing must be tangible. Must be capable of being used to derive a PA.
51
Loss:
Usually includes financial detrimental to victim. Loss caused by deception must be in the nature of direct loss. Property or valuable things will be the subject matter or loss. Where loss is more in the nature of a benefit than property, it may be more suitable for (1)(a)
52
To Any other person:
Incorporates not only real people, but also companies and other organisations. Including crown, any public body or local authority, any board, society, or company, any other body of persons, incorporated or not.
53
Required to be proved for s240(1)(d)
- the loss was caused by deception
- it was reasonably forseen some more then trivial loss would occur, but
- need not prove the loss was intentionally caused. must be loss to any other person, but there is no requirement that there be any benefit to anyone.
54
Penalty for deception offences:
s241CA
Exceeds $1000- imprisonment term not succeeding 7yr.
Exceeds $500 but not $1000- imprisonment term not succeeding 1yr.
Does not exceed $500, imprisonment term not succeeding 3months.
55
Propensity evidence:
Evidence showing a person has a propensity to act in a certain way or to have a particular state of mind may be admissible in a prosecution for causing loss by deception. May also show be used to disprove a defence of mistake or innocent intention.
56
s40 Evidence Act 2006 Propensity rule
1- in this section and sections 41-43 propensity evidence:
(a) means evidence that tends to show a persons propensity to act in a particular way or have a particular state of mind, being evidence of acts, omissions, events, or circumstances with which a person is alleged to have been involved; but
(b) does not include evidence of an act omission that is
i) 1 of the elements of the offence for which the person is being tried; or
ii) the cause of action in the proceeding in question
2- a party may offer propensity evidence in a civil or criminal proceeding about any person
3- however propensity evidence about
(a) a defendant in a criminal proceeding may be offered only in accordance with section 41, 42, or 43 whichever section is applicable. and
(b) a complainant in a sexual case in relation to the complainants sexual experience may be offered only in accordance with section 44
4- evidence that is solely or mainly relevant to veracity is governed by the veracity rules set out in section 37 and accordingly this section does not apply to evidence of that kind
57
s43 Evidence Act 2006- Prosecution may offer propensity evidence
(1) The prosecution may offer propensity evidence about a defendant in a criminal proceeding 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)
When assessing the probative value of propensity evidence, the Judge must take into account the nature of the issue in dispute.
(3)
When assessing the probative value of propensity evidence, the Judge may consider, among other matters, the following:
(a)
the frequency with which the acts, omissions, events, or circumstances that are the subject of the evidence have occurred:
(b)
the connection in time between the acts, omissions, events, or circumstances that are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried:
(c)
the extent of the similarity between the acts, omissions, events, or circumstances that are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried:
(d)
the number of persons making allegations against the defendant that are the same as, or are similar to, the subject of the offence for which the defendant is being tried:
(e)
whether the allegations described in paragraph (d) may be the result of collusion or suggestibility:
(f)
the extent to which the acts, omissions, events, or circumstances that are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried are unusual.
(4)
When assessing the prejudicial effect of evidence on the defendant, the Judge must consider, among any other matters,—
(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.
58
Propensity evidence admissibility and relevance
Propensity evidence whether on previous or later occasions to the offence charged, is admissible in cases of deception where there is 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 is drawn, and therefore directly relevant to defendants state of mind (intent) when he or she issued it.
Court will decided if evidence is propensity evidence or simply regarded as relevant evidence. Persistent dishonesty across the board, embracing the number of offences would not in itself bring the propensity rule into play. more likely to be deployed in cases involving specific offences with a discernable methodology or pattern.
Propensity evidence will be subject to the admissibility rules under s7 of the Act. Evidence is relevant under s7(3) if it has the tendency to prove or disprove anything that is of consequence to the determination of the proceeding.
58
Propensity evidence admissibility and relevance
Propensity evidence whether on previous or later occasions to the offence charged, is admissible in cases of deception where there is 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 is drawn, and therefore directly relevant to defendants state of mind (intent) when he or she issued it.
Court will decided if evidence is propensity evidence or simply regarded as relevant evidence. Persistent dishonesty across the board, embracing the number of offences would not in itself bring the propensity rule into play. more likely to be deployed in cases involving specific offences with a discernable methodology or pattern.
Propensity evidence will be subject to the admissibility rules under s7 of the Act. Evidence is relevant under s7(3) if it has the tendency to prove or disprove anything that is of consequence to the determination of the proceeding.
59
Concept of title
Contract and Commercial Law Act 2017
60
Title
Defined as a right or claim to the ownership of property. Simply means a legal right to property. Not defined in CA.
61
Title understanding:
A person cannot give better title to the property than they own. Where a seller has no rights of ownership to the goods and who acts without the authority of the true owner, purports to pass title to a buyer, that buyer can receive no greater interest in the goods then the seller had.
s149
61
Title understanding:
A person cannot give better title to the property than they own. Where a seller has no rights of ownership to the goods and who acts without the authority of the true owner, purports to pass title to a buyer, that buyer can receive no greater interest in the goods then the seller had.
s149 Contract and Commercial Law Act 2017- sale by person who is not owner
This section applies if goods are sold by a person who—
(a)
is not the owner of the goods; and
(b)
does not sell the goods under the authority or with the consent of the owner.
(2)
The buyer acquires no better title to the goods than the seller had, unless the owner of the goods is by the owner’s conduct precluded from denying the seller’s authority to sell.
62
Dishonesty compared to theft
A theft can never get title. However a person who by deception, induces another to hand over the goods (and title), title will pass. There may be limitations on this title.
63
Voidable title
A title obtained by deception, fraud, duress is called a voidable title. This means the title can be voided by the seller. Until the title is voided, the defrauder has voidable title and can confer good title on anyone who acquires the goods from him or her in good faith and for value.
s151 Contract and Commercial Law 2017
s151 Sale under voidable title
(1)
This section applies if—
(a)
a seller of goods has a voidable title to the goods; but
(b)
the seller’s title has not become void at the time of the sale.
(2)
The buyer acquires a good title to the goods if the buyer buys the goods in good faith and without notice of the seller’s defect of title.
64
s151 Sale under voidable title applies:
- where the seller of goods has voidable title thereto, but his title has not been voided 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 sellers defect of title.
65
s152(2) of the contract and commercial law Act 2017 also applies:
152Revesting of property in stolen goods on conviction of offender
(1)
The property in stolen goods revests in the person who was the owner of the goods (or that person’s personal representative) if the offender is convicted, despite any intermediate dealing with the goods.
(2)
Despite any other enactment, the property in goods obtained by fraud or other wrongful means that does not amount to theft does not revest in the person who was the owner of the goods (or that person’s personal representative) by reason only of the conviction of the offender.
66
s246(4) Crimes Act 1961
Receiving after restoration to owner:
If—
(a)
any property stolen or obtained by any other imprisonable offence has been returned to the owner; or
(b)
legal title to any such property has been acquired by any person,—
a subsequent receiving of it is not an offence, even though the receiver may know that the property had previously been stolen or obtained by any other imprisonable offence.
67
Legal title
Title (albeit voidable) obtained by means of false pretence is still a legal title within s246(4). This is an exception to the rule that you cannot get a better title then the seller. if the original purchaser subsequently sells the goods to an innocent buyer, then the title is legal. The effect of this section is that a person, who may be a receiver, cannot be convicted of receiving from a fraudulent offender who has voidable title to goods dishonestly obtained by means of deception.
68
Title voided:
Conversely, if the voidable title has already been voided by a complainant, leaving the fraudulent offender with mere possession only, then a legal title has not been acquired within the meaning of this section, and subsequent receiving of those goods in an offence. Receiver can be charged if they receive it in bad faith or knew of the defect in title.
Example: Where goods are purchased on hire purchase, title is not obtained until the full amount is paid. Therefore if a deposit is made on a hire through a false representation, then possession only is obtained. If they then sell the item on with that buyer having guilty knowledge, then that buyer can be guilty of the offence of receiving as B has no title.
69
Deception V Theft by conversion
If someone has gained something by deception, the owner or person with a special interest in the property has freely given the offender possession and or ownership of the property (title may be voidable title only). If property has been gained by theft, they have taken it without the owners consent or knowledge and so they only have possession of the property not title or ownership.
Theft does not include obtaining ownership, possession of or control over property with the consent of the person from whom it is obtained. However, conversion of anything which possession is obtained by deception may be theft.
Where goods are obtained on hire by false representation, the offence committed is deception. If the offender then sells the hired goods to another, they commit theft by conversion.
70
s220 Crimes Act1961 Theft by person in a special relationship:
This section applies to any person who has received or is in possession of, or 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 requirements of any other person.
(2)
Every one to whom subsection (1) applies commits theft who intentionally fails to account to the other person as so required or intentionally deals with the property, or any proceeds of the property, otherwise than in accordance with those requirements.
(3)
This section applies whether or not the person was required to deliver over the identical property received or in the person’s possession or control.
(4)
For the purposes of subsection (1), it is a question of law whether the circumstances required any person to account or to act in accordance with any requirements.
71
Offences under s220 where defendant has intentionally:
- failed to account to any other person for property received by the defendant
- failed to account to any other person for the proceeds of property received by the defendant
- dealt with properrty received by the defendant otherwise than in accordance with the requirements of some other person
- dealt with the proceeds of the property received by the defendant otherwise than in accordance with the requirements of some other person
72
Proof of 2 elements for s220
a) he or she has received property on terms or in circumstances which, to the defendants knowledge, affect what the defendant may do with the property or its proceeds or require the defendant to act in accordance with the requirements of another person and,
b) that the defendant intentionally departed from the relevant obligation
s223(a) maximum penalty of 7yrs for offence against s220
73
Mental elements for s220
1) defendant must know that the acquisition for the property was on terms of requirements which require the defendant to account for the property or its proceeds, or to deal with the property or its proceeds in accordance with the direction of another person
2) defendant must have intentionally departed from his or her obligations. Intentionally failing to perform ones obligations is sufficient for liability.
74
Forgery s256 CA61
(1)
Every one is liable to imprisonment for a term not exceeding 10 years who makes a false document with the intention of using it to obtain any property, privilege, service, pecuniary advantage, benefit, or valuable consideration.
(2)
Every one is liable to imprisonment for a term not exceeding 3 years who makes a false document, knowing it to be false, with the intent that it in any way be used or acted upon, whether in New Zealand or elsewhere, as genuine.
(3)
Forgery is complete as soon as the document is made with the intent described in subsection (1) or with the knowledge and intent described in subsection (2).
(4)
Forgery is complete even though the false document may be incomplete, or may not purport to be such a document as would be binding or sufficient in law, if it is so made and is such as to indicate that it was intended to be acted upon as genuine.
75
Forgery discussion:
Defendant must know document is false. A test of document may be whether the writing conveys the same message as the spoken word in the minds of all people able to read it.
76
s255 defines false document:
false document means a document—
(a)
of which the whole or any material part purports to be made by any person who did not make it, or by a fictitious person; or
(b)
of which the whole or any material part purports to be made by or on behalf of any person who did not authorise its making, or on behalf of a fictitious person; or
(c)
of which the whole or any material part has been altered, whether by addition, insertion, deletion, obliteration, erasure, removal, or otherwise, and that purports to have been altered by or on behalf of a person who did not alter it or authorise its alteration, or by or on behalf of a fictitious person; or
(d)
that is, in whole or in part, a reproduction of any other document, and that purports to have been made by or on behalf of a person who did not make it or authorise its making, or by or on behalf of a fictitious person; or
(e)
that is made in the name of a person, either by that person or by that person’s authority, with the intention that it should pass as being made by some other person who did not make it, or by a fictitious person.
77
False document discussion-
False document must lie about itself. Just because a lie is put in writing, does not mean that the document on which it is written is a forgery. The document itself must lie about itself. Forgery is complete as soon as the document is made with knowledge and intent.
78
Under s256 forgery, such alterations involve:
- additions
- insertions
- deletions
- obliterations
- erasures
- removal of material or otherwise
An alteration is a material alteration if it increases the value or negotiability of a document or instrument. A false document can be made by making material alterations to a genuine document.
79
For forgery, must prove:
At the time of the alleged act, the defendant knowing that the document was false, had intended either:
- to use the false document to obtain
- that the false document be used or acted on as genuine
Eg writing an exam in the name of another person, pre dating a deed to give it priority over another, forging letters of recommendations for inclusion in a CV that are necessary to obtain position, falsely competing a statment of service on a witness summons.
80
s257 Using forged documents
Every one is liable to imprisonment for a term not exceeding 10 years who, knowing a document to be forged,—
(a)
uses the document to obtain any property, privilege, service, pecuniary advantage, benefit, or valuable consideration; or
(b)
uses, deals with, or acts upon the document as if it were genuine; or
(c)
causes any other person to use, deal with, or act upon it as if it were genuine.
(2)
For the purposes of this section, a document made or altered outside New Zealand in a manner that would have amounted to forgery if the making or alteration had been done in New Zealand is to be regarded as a forged document.
81
Using forged documents:
Must prove that the defendant knew the document was a forgery the time of the physical act of using, dealing or acting upon. Also must prove that the document was false, the user knew that the document had been made with the knowledge and intent required under section 256CA
82
s258 Altering, concealing, destroying, or reproducing documents with intent to deceive
(1)
Every one is liable to imprisonment for a term not exceeding 10 years who, with intent to obtain by deception any property, privilege, service, pecuniary advantage, benefit, or valuable consideration, or to cause loss to any other person,—
(a)
alters, conceals, or destroys any document, or causes any document to be altered, concealed, or destroyed; or
(b)
makes a document or causes a document to be made that is, in whole or in part, a reproduction of any other document.
(2)
An offence against subsection (1) is complete as soon as the alteration or document is made with the intent referred to in that subsection, although the offender may not have intended that any particular person should—
(a)
use or act upon the document altered or made; or
(b)
act on the basis of the absence of the document concealed or destroyed; or
(c)
be induced to do or refrain from doing anything.
83
Altered, concealed, destroyed definitions:
Altercation- that a document is altered if it is changed in some manner
Conceal- the actual hiding of a document, the denial of its existence, withholding it in the face of positive duty to produce it. Destruction means to end the existence of and reproduction
83
Altered, concealed, destroyed definitions:
Altercation- that a document is altered if it is changed in some manner
Conceal- the actual hiding of a document, the denial of its existence, withholding it in the face of positive duty to produce it. Destruction means to end the existence of and reproduction is made in imitation or producing a copy or representation of.
84
Forgery v altering a document
Forgery- intent to deceive only is required not an intent to obtain by deception and must be a false document
altering- you must prove the offender intended to obtain by deception
85
s259 Using altered or reproduced document with intent to deceive
(1)
Every one is liable to imprisonment for a term not exceeding 10 years who, knowing any document to have been made or altered in the manner and with the intent referred to in section 258, with intent to obtain by deception any property, privilege, service, pecuniary advantage, benefit, or valuable consideration, or to cause loss to any other person,—
(a)
uses, or deals with, or acts upon, the document; or
(b)
causes any person to use or deal with, or act upon, the document.
(2)
For the purposes of this section, it does not matter that the document was altered or made outside New Zealand.
86
Mental elements of s259
1) defendant must know the relevant matters relating to the document in question, that the document had been altered to deceive.
2) the defendant must have intended to obtain by deception, or to cause loss to any person.
3) Intention to acquire or retain the property
87
Intent
A person does something intentionally if they mean to do it, they desire a specific result and act with the aim or purpose of achieving it.
88
Crimes involving computer
Interpretation
For the purposes of this section and sections 249 to 252,—
access, in relation to any computer system, means instruct, communicate with, store data in, receive data from, or otherwise make use of any of the resources of the computer system
authorisation includes an authorisation conferred on a person by or under an enactment or a rule of law, or by an order of a court or judicial process
computer system—
(a)
means—
(i)
a computer; or
(ii)
2 or more interconnected computers; or
(iii)
any communication links between computers or to remote terminals or another device; or
(iv)
2 or more interconnected computers combined with any communication links between computers or to remote terminals or any other device; and
(b)
includes any part of the items described in paragraph (a) and all related input, output, processing, storage, software, or communication facilities, and stored data.
89
Access (computer crime)
Access covers all interaction with a computer system such as using a computer at work and more remote forms of access. It requires the person instructing or communicating with the computer system has some form of connection with the computer system
90
Computer system
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 capable of connection to millions of networked computers.
91
Computer- not defined
Desktop computer, laptop or server is obvious. However as technology advances and microprocessors are integrated into many more devices, what is a computer and what is a peripheral device becomes less clear. Courts will consider ordinary use of advice at the time of the offence.
The phase "any communication links between computers or to remote terminals or another device" denotes a terminal, or point where the system can be accessed and information or commands given by people with the appropriate authority, which is physically distanced from the main processing elements of the computer.
92
s249CA61 Accessing computer system for dishonest purpose
1)
Every one is liable to imprisonment for a term not exceeding 7 years who, directly or indirectly, accesses any computer system and thereby, dishonestly or by deception, and without claim of right,—
(a)
obtains any property, privilege, service, pecuniary advantage, benefit, or valuable consideration; or
(b)
causes loss to any other person.
(2)
Every one is liable to imprisonment for a term not exceeding 5 years who, directly or indirectly, accesses any computer system with intent, dishonestly or by deception, and without claim of right,—
(a)
to obtain any property, privilege, service, pecuniary advantage, benefit, or valuable consideration; or
(b)
to cause loss to any other person.
(3)
In this section, deception has the same meaning as in section 240(2).
93
Difference between s249(1) and s249(2)
Distiction between words Thereby and obtains. S249(1) is directed at a situation where a person has actually accessed a computer system, obtains the offending material or causes loss. 249(2) is directed at someone who actually accessed the computer system with that intent regardless of the result.
Benefit in s249(1) bore its natural meaning of any advantage and was not limited to financial or pecuniary advantage and dishonestly related to the conduct in obtaining access to a computer system.
94
Loss- R v Billingsley
The person who suffers loss does not have to be aware of the loss at the time of the offence.
95
s250CA61 Damaging or interfering with a computer system
(1) Every one is liable to imprisonment for a term not exceeding 10 years who intentionally or recklessly destroys, damages, or alters any computer system if he or she knows or ought to know that danger to life is likely to result.
(2)
Every one is liable to imprisonment for a term not exceeding 7 years who intentionally or recklessly, and without authorisation, knowing that he or she is not authorised, or being reckless as to whether or not he or she is authorised,—
(a)
damages, deletes, modifies, or otherwise interferes with or impairs any data or software in any computer system; or
(b)
causes any data or software in any computer system to be damaged, deleted, modified, or otherwise interfered with or impaired; or
(c)
causes any computer system to—
(i)
fail; or
(ii)
deny service to any authorised users.
96
Distinction between s250(1) and s250(2)
s250(1) criminialises the destruction, damaging or altering of a computer system that the defendant knows or ought to know would endanger life. whereas: s250(2) makes it an offence to damage any computer system and adds the requirement that the defendant must act without authority with the knowledge that they are not authorized or are reckless whether they are authorised. s250(2)(b) is directed at instances where the defendant has so arranged matters that the victim own operation of his or her computer system, or the acts of third parties, will cause damage to the victims computer system.
97
s252CA61 accessing computer system without authorisation
(1) Every one is liable to imprisonment for a term not exceeding 2 years who intentionally accesses, directly or indirectly, any computer system without authorisation, knowing that he or she is not authorised to access that computer system, or being reckless as to whether or not he or she is authorised to access that computer system.
(2)
To avoid doubt, subsection (1) does not apply if a person who is authorised to access a computer system accesses that computer system for a purpose other than the one for which that person was given access.
98
Without authorisation
The offence requires the defendant to have intentionally gained access, directly or indirectly to a computer system where access to that computer has not been authorised.
99
Authorised access for dishonest purpose:
(2) is created to avoid any misinterpretation of the intent of the section. The offence does NOT apply to a person who has authorisation but who accesses the computer system for a purpose other than the one for which he or she was given access.
100
Offending carried out from remote computers:
A person is not required to be physically present in order to access a computer system.
101
Intent to obtain
He or she must intend to obtain by deception
102
Returning stolen property or property obtained by deception
Can search for vehicle under S&S for one purpose of the act which is obtain a search warrant and look for/seize EM. This should only be used for EM purposes and not to assist in civil matters
103
Propensity evidence:
Whether on previous or later occasions to the offence charged, is admissible in cases of deception where there is a sufficiently strong connection between the offences.
104
R v crooks
Accused May be liable if their conduct has amounted to wilful blindness and thus equated to knowledge. (Putting their head in the sand)
105
Ministry of business- sources of information
- Registrar of companies
- companies office
- official assignee
- insolvency service
106
Hire purchase:
Where goods are purchased on hire purchase, title is not obtained until the full amount is obtained (ie title remains with the complaint owner)
So if deposit is made on a hire purchase by A through a false representation, then possession only is obtained. If A then sells the item to B with B having guilty knowledge, then B can be guilty of receiving as B has no title
107
Title:
Property in- which is the legal right to property.
Title will pass because goods are generally handed over to the offender within the consent of the complainant when goods are obtained by a deception. Because the goods are handed over with consent, the law recognises this as the owner wanting the offender to have the goods and as a result title of the goods as well. (Owner is induced to pass it on willingly)
Title obtained by deception will be voidable title. If innocent purchaser obtains goods before this title is voided, then he or she is entitled to a good title.
108
All of s240
Obtaining by deception or causing loss by deception
