Questions

Question 1

When assessing the probabtive value of propensity evidence what might the judge consider?

Answer 1

(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 which 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 which 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 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 of which the acts, omissions, events, or circumstances which 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.

Question 2

When assessing the prejudicial effect of the evidence on the defendant what must the judge consider?

Answer 2

(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.

Question 3

Document includes

Answer 3

(a) any paper or other material used for writing or printing that is marked with matter capable of being read; or
(b) any photograph, or any photographic negative, plate, slide, film, or microfilm, or any photostatic negative; or
(c) any disc, tape, wire, sound track, card, or other material or device in or on which information, sounds, or other data are recorded, stored (whether temporarily or permanently), or embodied so as to be capable, with or without the aid of some other equipment, of being reproduced; or
(d) any material by means of which information is supplied, whether directly or by means of any equipment, to any device used for recording or storing or processing information; or
(e) any material derived, whether directly or by means of any equipment, from information recorded or stored or processed by any device used for recording or storing or processing information.

Question 4

What is required to be proved for deception

Answer 4

• There was an intent to deceive
• There was a representation by the defendant
• That the representation was false; and that the defendant either:
  1) Knew it to be false in material particular OR
  2) Was reckless whether it was false in a material particular.

Question 5

How can a false representation be communicated

Answer 5

• Writing, for example writing a cheque on an account in which there are no funds, knowing that the cheque will not be honoured.
• Conduct, for example, representing oneself as a collector for charity by carrying an official collection bag, or tendering the wrong amount for an item after swapping its price tag.
• Demeanour, for example, wearing a clerical collar to pass oneself off as a minister of religion.

Question 6

How can knowledge be established

Answer 6

• An admission
• Implication from the circumstances surrounding the event
• Propensity evidence

Question 7

What must be proved in recklessness

Answer 7

That the defendant was aware of the risk and proceeded regardless (subjective test), but also that it was unreasonable for him to do so (objective test)

Question 8

What is the distinction between theft and obtaining by deception

Answer 8

An important distinction between theft and obtaining by deception is that in theft the property is obtained without the owner’s permission and title is not passed on

Question 9

Does the prosecution need to prove that the accused was in actual possession of the property?

Answer 9

No, it may be sufficient that the accused exercised control over the property through an agent.

It is insufficient that the dishonestly obtained property was found at the premises of which the defendant had control over. It must be proved that the defendant did in fact exercise some control over the particular property.

Question 10

Examples of pecuniary advantage

Answer 10

• Cash from stolen goods
• Clothing or cash obtained by a credit or EFTPOS card.
• A discount (by using student ID card).
• Avoiding of deferring payment of a debt

Question 11

What must be proved for a charge under 240(1)(b)

Answer 11

• The identity of the suspect
• By deception and without claim of right
• In incurring any debt or liability
• Obtained credit

Question 12

What must the debt or liability be?

Answer 12

The debt or liability must be legally enforceable. This means that if the contract is void or illegal there will be no offence.

Question 13

Proof of inducement

Answer 13

Inducement should be proved wherever possible by direct evidence from the person alleged to have bee defrauded.

The victim of the deception is usually questioned to elicit answers proving:

• the false representation was believed, and
• it was the consequence of that belief that the victim parted with his or her money.

In the absence of direct evidence, a reasonable inference can be drawn in certain circumstances that the owner was induced by the representation to part with his money.

Question 14

Who is required to cause the loss for 240(1)(c)

Answer 14

The defendant, or an act of the defendant, must be the substantial and operative cause of the delivery, execution etc, of any document capable of deriving pecuniary advantage.

The accused must cause the loss.

Question 15

What is required to be proved for 240(1)(d)

Answer 15

In R v Morley the Court said the prosecution must prove that:

• The loss was caused by a deception
• It was reasonably foreseeable some more than trivial loss would occur, but
• Need not prove the loss was intentionally caused.

Thus, there must be loss to “any other person”, nut there is no requirement that there be any benefit to anyone,

Question 16

Punishments for obtaining by deception or causing loss by deception (section 241)

Answer 16

(a) exceeds $1,000 - 7 years
(b) $500 to $1,000 - 1 year
(c) less than $500 - 3 months

Question 17

What is necessary to avoid title

Answer 17

• Communication to B. The taking of all possible steps to bring it to B’s notice, eg by writing a letter, text, phone call etc.
• By advising the police that the vehicle was obtained by fraud.

Question 18

When the sale of goods Act 1908, s25, is relevant

Answer 18

Where the seller of goods has a voidable title thereto, but his title has not been avoided 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 seller’s defect of title.

Question 19

What is the difference between theft and obtaining by deception

Answer 19

A thief never gets title however a person by deception induces another to hand over the goods with intention that the title will pass, does get title, however there may be limitations to this title.

Question 20

When does title pass?

Answer 20

s19 Sale of Goods Act 1908 – where there is a contract for the sale of specific goods between the parties, title passes when it was intended to pass by the parties.

Question 21

Receiving after restoration to owner

Answer 21

246(4) CA 61

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. This is an exeption to the rule that you cannot get a better title than the seller. If the orginal pruchasers subsequently sells the goods to an innocent buyer then the title has been made legal. This means that a person who may be a ‘receiver’ cannot be convicted of receiving from a fraudulent offender who has a voidable title to goods dishonestly obtained by means of a deception.

Conversely if the voidable title has already been avoided by the complainant, leaving the fraudulent offender with mere possession only, then a ‘legal title’ has not been acquired, and can be charged if they received it in bad faith or knew defect in the title. Goods therefore are capable of being received where possession only is obtained by a false representation. e.g goods purchased on HP, title is not obtained until the full amount is paid. Therefore if the deposit is made on an HP using a stolen cheque then possession only is obtained and subsequently the goods may later be received. Money -whether in the form of coins or notes is recognised as legal currency. It passes freely from hand to hand, and who ever receives money innocently and in return for value given, gets good title even though the coins or notes may be clearly proved to have been stolen.

Question 22

Obtaining by deception vs Theft by conversion?

Answer 22

Theft by conversion – e.g where goods are obtained on HP by a false representation, the offence committed is deception. However if that offender later sells the hired goods to another, they commit theft by conversion.

Question 23

Theft by a person in a special relationship

Answer 23

may be an offence where the 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 property received by the Defendant otherwise than in accordance with the requirements of some of other person
• dealt with the proceeds of the property received by the Defendant otherwise than in accordance with the requirements of some other person

Two core elements of proof required
-that he or she received property on terms or in circumstances which, to the defendant’s knowledge, affect what the accused may do with the property or its proceeds or require the defendant to act in accordance with the requirements of another person, and -that the defendant intentionally departed from the relevant obligation.

Two mental elements required:
-the defendant must know that the acquisition of the property was on terms or requirments which require the defendant to account for the property or its proceeds, or to deal with the property or proceeds in accordance with the direction of another person. -the defendant must have ‘intentionally’ departed from his or her obligations. There is no requirement for proof of acting dishonesty or without claim of right, the mere fact of intentionally failing to perform one’s obligations is sufficient for liability.

Question 24

Use of the document (forgery)

Answer 24

-no requirement that the defendant use the document, as long as the intention to do so is present. The Defendant must know the document is false.

Question 25

false document s255 CA 61 means a document -

Answer 25

Essentially a false document must lie about itself … or intent to convey a lie in cases where it has been written by someone intending to pass it off has having been written by someone else (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.

Question 26

A false document can be made by making any material alteration to a genuine document. Material alteration (an alteration that increases the value or negotiability of a document or instrument) may involve:

Answer 26

-additions -insertions -deletions -obliterations -erasures -erasures -removal of material or otherwise

Question 27

When is the offence of forgery complete?

Answer 27

Forgery is complete as soon as the document is made with knowledge and intent.

Question 28

What must you prove in forgery (forgery complete)

Answer 28

- at the time of the alleged act, the defendant knew the document was false AND intended - to use the false document to obtain or - that the false document be used or acted on as genuine

Question 29

Using forged documents

Answer 29

1) 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.

Question 30

Must prove (using forged documents)

Answer 30

- the defendant knew that the document was a forgery at the time of the physical act or using or dealing with or acting upon it. - the document was false - the ‘user’ knew the document had been ‘made’ with the knowledge and intent required under 256.

Question 31

258Altering, concealing, destroying, or reproducing documents with intent to deceive

Answer 31

(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.

Question 32

Difference between Forgery & Altering etc

Answer 32

- with forgery, an intent to deceive only is required, not an intent to obtain by deception - in the offence of altering et al, you must prove that the offender intended to obtain by deception - any document can be altered or reproduced in the charge of altering et al, however in the a charge of forgery the document must be a ‘false document’ as defined under 255.

Question 33

259 Mental element

Answer 33

(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.

Question 34

Mental element of Mental element

Answer 34

-the defendant must know the relevant matters relating to the document in question – that the document had been altered with intent to deceive. -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 any property et al. -the defendant intended to obtain property etc or cause loss to any person.

Question 35

computer system

Answer 35

(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.

Question 36

access in computer system

Answer 36

‘Access’ is widely defined and covers almost all interactions with a computer system which as using a computer at work and more remote forms of access such as viewing a website or using a virus. Access requires that the person instructing or communicating with the computer system has some form of connection with the computer system through which instructions or communications may pass. A person is not required to be physically present in order to access a computer system.

Question 37

Accessing a computer system for dishonest purpose s249 CA61

Answer 37

(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).

Question 38

Distinction between 249 (1) and 249 (2)

Answer 38

- under section (1) the offender actually accesses a computer system AND obtains or causes a loss. - under section (2) the offender accesses a computer with intent to obtain or cause a loss, regardless of the outcome. Police v Leroy – benefit not limited to financial or pecuniary advantage. E.g gaing access to another person’s email account.

Question 39

Damaging or interfering with computer system s250 CA 61

Answer 39

(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.

Question 40

Distinction between 250 (1) & (2)

Answer 40

- (1) criminalises the destruction, damaging or altering of a computer system that the defendant knows or ought to know would endanger life. - (2) similar to one but not as serious, (no danger to life element). The defendant must act without authority and know or at least be reckless as to acting without authority.

Question 41

Accessing computer system without authorisation s252 CA 61

Answer 41

(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.