Deception

Question 1

What is S228(1)?

Answer 1

228 Dishonestly taking or using document

(1) Every one is liable to imprisonment for a term not exceeding 7 years who, with intent to obtain any property, service, pecuniary advantage, or valuable consideration,—
(a) dishonestly and without claim of right, takes or obtains any document; or
(b) dishonestly and without claim of right, uses or attempts to use any document.

Question 2

Define ‘obtain’

Answer 2

Under S217:

obtain, in relation to any person, means obtain or retain for himself or herself or for any other person.

Question 3

Define ‘document’

Answer 3

Under S217 CA1961:

document means a document, or part of a document, in any form; and includes, without limitation,—

(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

Define ‘dishonestly’

Answer 4

Under S217 CA1961:

dishonestly, in relation to an act or omission, means done or omitted without a belief that there was express or implied consent to, or authority for, the act or omission from a person entitled to give such consent or authority.

Question 5

Define ‘property’

Answer 5

Under S2 CA1961:

property includes real and personal property, and any estate or interest in any real or personal property, money, electricity, and any debt, and any thing in action, and any other right or interest

Question 6

Define ‘service’

Answer 6

Service is not limited to financial or economic value, and excludes privileges or benefits (R v Cara)

Question 7

Hayes v R (pecuniary advantage)

Answer 7

A pecuniary advantage is anything that enhances the accusers financial position. It is that enhancement which constitutes the element of advantage.

Question 8

Define ‘valuable consideration’

Answer 8

It is wider than pecuniary advantage. It is anything capable of being valuable consideration; in short, money or moneys worth.

Question 9

What are some examples of valuable consideration?

Answer 9

1. monetary payment for goods and services
2. goods given in return for services provided
3. issuing false invoice to receive payment for goods never supplied

Question 10

Hayes v R (dishonestly)

Answer 10

The question is whether the belief is actually held, not whether that belief is reasonable. However, reasonableness may be relevant as evidence on the issue of whether the belief was actually held.

Question 11

Define ‘claim of right’

Answer 11

Under S2 CA1961:

claim of right, 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

Question 12

What is the nature of the belief required for claim of right? (4)

Answer 12

1. belief in a proprietary or possessory right in property. There must be an element of ownership the property in question or a right to take or retain possession if property that cannot be possessed or owned. Arguably the defendant could rely on a belief as to another’s legal rights.
2. the belief must be about the rights to the ‘property in relation to which the offence is alleged to have been committed’. Not other property.
3. The belief must be held at the time of the conduct alleged to constitute the offence.
4. The belief must be held by the defendant. It may be based on ignorance or mistake.

Question 13

Define ‘taking’ (theft or stealing)

Answer 13

219 Theft or stealing

(1) Theft or stealing is the act of,—
(a) dishonestly and without claim of right, taking any property with intent to deprive any owner permanently of that property or of any interest in that property; or
(b) dishonestly and without claim of right, using or dealing with any property with intent to deprive any owner permanently of that property or of any interest in that property after obtaining possession of, or control over, the property in whatever manner.

(2) An intent to deprive any owner permanently of property includes an intent to deal with property in such a manner that—
(a) the property cannot be returned to any owner in the same condition; or
(b) any owner is likely to be permanently deprived of the property or of any interest in the property.

(3) In this section, taking does not include obtaining ownership or possession of, or control over, any property with the consent of the person from whom it is obtained, whether or not consent is obtained by deception.
(4) For tangible property, theft is committed by a taking when the offender moves the property or causes it to be moved.

Question 14

R v Misic

Answer 14

Essentially a document is a thing which provides evidence or information or serves as a record.

Question 15

Hayes v R (uses or attempts to use)

Answer 15

An unsuccessful use of a document is as much use as a successful one. An unsuccessful use must not be equated conceptually with an attempted on. The concept of attempt relates to use not not to the ultimate obtaining of a pecuniary advantage, which is not a necessary element of the offence. Because the use does not have to be successful it may be difficult to draw a clear line between use and attempted use.

Question 16

Define ‘attempts’ under S72 CA1961

Answer 16

72 Attempts
(1) Every one who, having an intent to commit an offence, does or omits an act for the purpose of accomplishing his or her object, is guilty of an attempt to commit the offence intended, whether in the circumstances it was possible to commit the offence or not.

(2) The question whether an act done or omitted with intent to commit an offence is or is not only preparation for the commission of that offence, and too remote to constitute an attempt to commit it, is a question of law.
(3) An act done or omitted with intent to commit an offence may constitute an attempt if it is immediately or proximately connected with the intended offence, whether or not there was any act unequivocally showing the intent to commit that offence.

Question 17

What is S240 CA1961?

Answer 17

Obtaining by deception or causing loss by deception

(1) Every one is guilty of obtaining by deception or causing loss by deception who, by any deception and without claim of right,—
(a) obtains ownership or possession of, or control over, any property, or any privilege, service, pecuniary advantage, benefit, or valuable consideration, directly or indirectly; or
(b) in incurring any debt or liability, obtains credit; or
(c) induces or causes any other person to deliver over, execute, make, accept, endorse, destroy, or alter any document or thing capable of being used to derive a pecuniary advantage; or
(d) causes loss to any other person.

(1A) Every person is liable to imprisonment for a term not exceeding 3 years who, without reasonable excuse, sells, transfers, or otherwise makes available any document or thing capable of being used to derive a pecuniary advantage knowing that, by deception and without claim of right, the document or thing was, or was caused to be, delivered, executed, made, accepted, endorsed, or altered.

(2) In this section, deception means—
(a) a false representation, whether 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 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 stratagem used with intent to deceive any person.

Question 18

Define ‘deception’

Answer 18

S240

(2) In this section, deception means—
(a) a false representation, whether 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 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 stratagem used with intent to deceive any person.

Question 19

What is ‘representation’

Answer 19

Examples have included representations about a past or present fact, about a future event, or about an existing intention, opinion, belief, knowledge or other state of mind. It must be capable of being false so it must contain proper fact.

Question 20

What must be proved in ‘deception’? (3 points)

Answer 20

1. there was an intent to deceive
2. there was a representation by the defendant
3. 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 on a material particular

Question 21

R v Morley

Answer 21

An intention to deceive required 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.

Question 22

What doesn’t ‘intention to deceive’ need to be?

Answer 22

The deception need not have been made to the person actually delivering over the property, granting credit, conferring a benefit, or suffering a loss provided the deception was the cause of the relevant conduct.

Question 23

In the criminal context, what are the two specified intents?

Answer 23

1. an intention to commit the act

2. an intention to get a specified result

Question 24

What is ‘silence’?

Answer 24

Silence or non-disclosure will not be regarded as a representation, but there are exceptions to this such as where an incorrect understanding is implied from a course of dealing and the defendant has failed to negate that incorrect understanding.

Eg. two labels on a radio, being told the correct price by one worker and then when they go to the checkout, they fail to advise the cashier that they scanned the wrong label.

Question 25

What must the prosecutions move in terms of ‘knowledge’?

Answer 25

They must prove that the defendant knew that the representation was false in a material particular or was reckless as to its falsity. Absolute certainty is not required.

Question 26

What did Simester and Brookbanks state in regards to knowledge?

Answer 26

They stated that knowing means ‘knowing or correctly believing’. The defendant may believe something wrongly but cannot know something that is false.

Question 27

How can knowledge be established? (3 points)

Answer 27

1. an admission
2. implication from circumstances surrounding the event
3. propensity evidence

Question 28

What does ‘material particular’ mean?

Answer 28

It is something that is important, essential or relevant detail or item. A matter will be a material particular if it is something important or something that matters.

Question 29

R v Harney (Recklessness)

Answer 29

Recklessness means the conscious and deliberate taking of an unjustified risk. In NZ it involves proof the the consequence complained of could we have happened, together with an intention to continue the course of conduct regardless of the risk.

Question 30

What is the subjective and objective test in ‘recklessness’?

Answer 30

1. that the defendant consciously and deliberately took a risk (a subjective test)
2. that the risk was one that was unreasonable to take in the circumstances as they were known to the defendant (objective test - based on whether a reasonable person would have taken the risk)

Question 31

What is ‘an omission to disclose a material particular’?

Answer 31

An intent to deceive where the is duty to disclose.

Question 32

What does ‘omission’ mean?

Answer 32

An omission is inaction, i.e not acting. It can ether be a conscious decision not to do something or not giving thought to the matter at all.

Question 33

What is ‘duty to disclose’?

Answer 33

The defendant was under duty to disclose and the defendant failed to perform that duty. E.g. in the civil law where the parties are in a contractual relationship.

Question 34

Define: device, trick, and stratagem

Answer 34

Device: a ‘plan, scheme or trick’

Trick: An action or scheme undertaken to fool or outwit or deceive

Stratagem: A cunning plan or scheme especially for deceiving an enemy or trickery

Question 35

What is S240(1)(a) CA1961?

Answer 35

240 Obtaining by deception or causing loss by deception

(1) Every one is guilty of obtaining by deception or causing loss by deception who, by any deception and without claim of right,—
(a) obtains ownership or possession of, or control over, any property, or any privilege, service, pecuniary advantage, benefit, or valuable consideration, directly or indirectly; or

Question 36

What are some examples of privilege or benefit? (4)

Answer 36

Privilege and benefit mean ‘special right or advantage’

• using someones gym membership card to use the facilities
• access to medical services
• the withdrawal of an assault charge
• a reduction in sentence for an offence

Question 37

What is the difference between theft and obtaining by deception?

Answer 37

Theft in property is obtained without the owners permission and title is not passed on.

Question 38

R v Cox (possession)

Answer 38

Possession involves two elements. The first, the physical element, is actual or potential physical custody or control. The second, the mental element is a combination of knowledge and intention: knowledge in the sense of awareness by the accused that the substance is in his possession and an intention to exercise possession.

Question 39

Explain the two elements of possession

Answer 39

1. physical element - requires either actual or potential control or custody.
   - actual = in a persons physical control or custody
   - potential = has potential to have a thing
2. mental is a combination of both knowledge that the person possesses the item in question and an intention to possess the item.

Question 40

What is ‘special interest lien’?

Answer 40

A lien is a right over another property to protect a debt charged on the property. Eg. a garage owner keeping a car until the owner paid for the work done on the car.

Question 41

What does it mean to have ‘control’ over something?

Answer 41

To control something means to exercise authoritative or dominating influence or command over it. The defendant does not need to possess something to have control over it.

Question 42

What are some examples of ‘pecuniary advantage’? (4 examples)

Answer 42

• cash from stolen goods
• clothing or nah obtained by a credit or EFTPOS card
• a discount (by using a student ID card)
• avoiding or deferring payment of debt

Question 43

What is S240(1)(b) CA1961?

Answer 43

240 Obtaining by deception or causing loss by deception

(1) Every one is guilty of obtaining by deception or causing loss by deception who, by any deception and without claim of right,—
(b) in incurring any debt or liability, obtains credit; or

Question 44

What is ‘debt’ and ‘liability’ and ‘credit’?

Answer 44

Debt: money owing from one person to another

Liability: means a legally enforceable financial obligation to pay, such as the cost of a meal

Credit: The obligation on the debtor to pay or repay, and the time given for them to do so by the creditor.

Question 45

Under S240(1)(b), you must prove the I.D of the suspect and what else? (3 points)

Answer 45

That they:

• by deception without claim of right
• in incurring any debt or liability
• obtained credit

Question 46

What must debt or liability be?

Answer 46

Legally enforceable. If the contract is void or illegal, there will be no offence.

Question 47

Fisher v Raven

Answer 47

‘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.

Question 48

What is meant under ‘obtains credit’?

Answer 48

Obtains under S217 includes the defendant obtaining the extension of credit to another person (3rd person). Eg.

• obtaining money on loan
• extending overdrafts
• renting leasing a dwelling

Question 49

R v Mckay

Answer 49

On appeal it was held that the credit had been obtained on booking in but at that time the accused did not possess an intent to deceive.

Question 50

Under S240(1)(b) - The intention to deceive must exist at the time when the deception is perpetrated. T or F

Answer 50

True. R v Mckay

Question 51

What is S240(1)(c)?

Answer 51

240 Obtaining by deception or causing loss by deception

(1) Every one is guilty of obtaining by deception or causing loss by deception who, by any deception and without claim of right,—
(c) induces or causes any other person to deliver over, execute, make, accept, endorse, destroy, or alter any document or thing capable of being used to derive a pecuniary advantage; or

Question 52

Under S240(1)(c) - define ‘induces’

Answer 52

To persuade, bring about or give rise to

Question 53

What proof should be given when proving ‘inducement’ under S240(1)(c)?

Answer 53

• that the false representation was believed; and

- that it was the consequence of that belief that the victim parted with his or her money

Question 54

R v Laverty

Answer 54

It is necessary for the prosecution to rove that the person parting with the property was induced to do so by the false representation made.

Question 55

Give the meanings for:
- to deliver over
- to execute
- to endorse
- to alter
- to accept
(under S240(1)(c))

Answer 55

• to deliver over, is to surrender up someone to something
• to execute, is to put a course of action into effect
• to endorse, is to write or sign on a document
• to alter, is to change in character or. composition, typically in a comparatively small but significant way
• to accept, is to receive something

Question 56

What is a ‘thing’?

Answer 56

A thing MUST be tangible and capable of being used to deprive pecuniary advantage

Question 57

What is S240(1)(d)?

Answer 57

240 Obtaining by deception or causing loss by deception

(1) Every one is guilty of obtaining by deception or causing loss by deception who, by any deception and without claim of right,—
d) causes loss to any other person.

Question 58

What is ‘loss’ under S240(1)(d)?

Answer 58

It will involve financial detriment to the victim and must be in the nature of a direct loss.

Question 59

Define ‘person’

Answer 59

Under S2 CA1961:

Person, owner, and other words and expressions of the like kind, include the Crown and any public body or local authority, and any board, society, or company, and any other body of persons, whether incorporated or not, and the inhabitants of the district of any local authority, in relation to such acts and things as it or they are capable of doing or owning

Question 60

What is to be proved under S240(1)(d)?

Answer 60

• the loss was caused by deception
• it was reasonable foreseeable some more than trivial loss would occur, but
• need not prove the loss was intentionally caused
• there must be a loss ‘to any other person’ but there is no requirement that there be any benefit to anyone.

Question 61

What is S241 CA1961?

Answer 61

241 Punishment of obtaining by deception or causing loss by deception

Every one who is guilty of obtaining by deception or causing loss by deception is liable as follows:

(a) if the loss caused or the value of what is obtained or sought to be obtained exceeds $1,000, to imprisonment for a term not exceeding 7 years:
(b) if the loss caused or the value of what is obtained or sought to be obtained exceeds $500 but does not exceed $1,000, to imprisonment for a term not exceeding 1 year:
(c) if the loss caused or the value of what is obtained or sought to be obtained does not exceed $500, to imprisonment for a term not exceeding 3 months.

Question 62

What is the propensity rule under S40 of the evidence act 2006?

Answer 62

40 Propensity rule

(1) In this section and sections 41 to 43, propensity evidence—
(a) means evidence that tends to show a person’s propensity to act in a particular way or to 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 or 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 or 42 or 43, whichever section is applicable; and
(b) a complainant in a sexual case in relation to the complainant’s 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.

Question 63

What is Propensity evidence offered by prosecution about defendants under S43 of the evidence act 2006?

Answer 63

43 Propensity evidence offered by prosecution about defendants

(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.

Question 64

What is the definition of ‘title’?

Answer 64

A right or claim to ownership of property

Question 65

What is the difference between theft and obtaining by deceit?

Answer 65

A thief never gets title. But a person, who by deception or other deceit, induces another to hand over the goods with the intention that the title will pass, does get title. Note, however, that there may be limitation on this title.

Question 66

What is ‘voidable title’?

Answer 66

It is a title obtained by deception, fraud, duress or misrepresentation. The title can be avoided by the seller. Thus, if an innocent purchaser buys gods obtained by deception, before title has been avoided, then he or she is entitled to good title.

Question 67

If B buys a car from A with a valueless cheque, what is one of three things A must do to ‘avoid the title’?

Answer 67

1. communicate with B
2. take all other possible steps to bring it to B’s notice, eg. by writing a letter
3. advise the Police that the vehicle was obtained by deception

Question 68

What is S25 of the Sale of Goods Act 1908 (title)?

Answer 68

25 Sale under voidable title

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 69

Can a receiver of property that has been taken by deception be convicted of ‘receiving’?

Answer 69

If the ‘receiver’ purchases or receives the property in good faith, they are NOT liable for ‘receiving’.

If the ‘receiver’ is aware in the defect title or purchases in bad faith, they ARE liable.

It depends on what they know at the time of the purchase/receiving.

Question 70

What is the difference between ‘theft by conversion’ and ‘obtaining by deception’?

Answer 70

Where goods are obtained on ‘hire’ by a false representation, the offence committed is deception.

If the offender later sells the hired goods to another, they have committed ‘theft by conversion’.

Question 71

What is S220 CA1961?

Answer 71

220 Theft by person in special relationship

(1) 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.

Question 72

What are some examples of S220 CA1961? (Theft by person in a specified relationship)

Answer 72

Where the defendant has:

• 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 other person
• dealt with the proceeds of the property received by the defendant otherwise in accordance with the the requirements some other person

Question 73

What are the two CORE elements that must be proved under S220 CA1961? (Theft by person in a specified relationship)

Answer 73

(a) that he or she have received property on terms or in circumstances which, to the defendants knowledge, affect what the accused may do with the property or its processor require the defendant to act in accordance with the requirement of another person
(b) that the defendant intentionally departed from the relevant obligation

Question 74

What are the two MENTAL elements required under S220 CA1961? (Theft by person in a specified relationship)

Answer 74

1. the defendant must know that the acquisition of the property was on terms or requirements which require the defendant to account for the property or its proceeds in accordance with the direction of another person.
2. the defendant must have intentionally departed from his or her obligations. The mere fact of intentionally failing to perform ones obligations is sufficient for the liability

Question 75

What is S256 CA1961?

Answer 75

256 Forgery
(1) 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) 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.
(5) 3 years = who without reasonable excuse, sells, transfers, or otherwise makes available any false document knowing it to be false and to have been made with the intention that it be used or acted on (in New Zealand or elsewhere) as genuine.

Question 76

Under S256 (forgery), must the defendant use the document?

Answer 76

No, so long as there is an intention to do so.

Question 77

What is a ‘false document’?

Answer 77

A false document must lie about itself or convey a lie in cases where it has been written by someone intending pass it off as having been written by someone else.

Eg. a print of a forged Goldie painting is not a forgery - only the original forgery claiming to be a unforced original constitutes as a forgery.

Question 78

What are examples of some alterations under ‘forgery’?

Answer 78

• additions
• insertions
• deletions
• obliterations
• erasures
• removal of material or otherwise
• it is a material alteration if it increases the value or negotiability of a document or instrument

Question 79

Does a photocopy class as a ‘forgery’ document?

Answer 79

No. A photocopy of a false document claims merely to be a copy and, therefore, does not tell a lie about itself.

Question 80

When is forgery complete under S256 CA1961?

Answer 80

As soon as the document is made with knowledge and intent. It does NOT need to be used and if it was, it would be an offence under S257 ‘using forged documents’.

Question 81

What must prosecutions prove in terms of intent under S256 CA1961?

Answer 81

The defendant, knowing the document was false, had intended EITHER:

• to use the false document to obtain; or
• that the false document be used or acted on as genuine

Question 82

What are some examples of ‘forgery’ under S256? (4)

Answer 82

• writing an examination paper in the name of another person who is required to sit it
• pre-dating a deed to give priority over another
• forging letters of recommendation for inclusion in a CV that are necessary to obtain a position
• falsely completing a statement of service on a witness summons

Question 83

What is S257 CA1961?

Answer 83

257 Using forged documents

(1) 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 84

Define alteration, conceal, destroy, and reproduction.

Answer 84

Alteration = changed in some manner

Conceal = a) the actual hiding of a document (b) the denial of its existence; and (c) the withholding of it in the face of a positive duty to produce it

Destruction = to end the existence of

Reproduction = producing a copy or representation of, or made in imitation

Question 85

What are the two alternative mental elements of S257 (Using forged documents)?

Answer 85

1. An intent to obtain by deception any property, privilege, service, pecuniary advantage, benefit or valuable consideration.
2. An intention to cause loss. There is no requirement the loss is intended to be inflicted by deception thus a simple destruction of a document so as to deprive another of something of value might fall within the section.

Question 86

What is the difference of ‘forgery’ and ‘altering’ a doc etc?

Answer 86

The varying definition of a document and the intent.

With forgery there is only an intent to deceive.

Question 87

What is S259 CA1961?

Answer 87

259 Using altered or reproduced document with intent to deceive

(1) 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 88

What are the three mental elements required for the offence ‘Using altered or reproduced document with intent to deceive’ under S259?

Answer 88

1. the defendant must know the relevant matters relating to the document in question (that the document has been altered)
2. 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, privilege, service, pecuniary advantage, benefit, or valuable consideration, or to cause loss to any other person.
3. there must be an intention to acquire or retain the property etc, or to cause loss ‘by deception’.

Question 89

Deception is defined in S240(2) and requires the prosecution to prove:

Answer 89

1. that there was an intent to deceive
2. that there was a representation by the defendant
3. 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

Question 90

To prove a charge of forgery under S256(1), you need to prove the suspect:

Answer 90

• made a false document

- with intent to use it to obtain property etc.

Question 91

To prove a charge of forgery under S256(2), you need to prove the suspect:

Answer 91

• made a false document
• knowing it to be false
• with intent that it in any way be used or acted upon, as genuine
• essentially, a false document must lie about itself or intent to convey a lie

Question 92

Under S248 (Interpretation: For the purposes of this section and sections 249 to 252) what is a: Computer system

Answer 92

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.

Question 93

Under S248 (Interpretation: For the purposes of this section and sections 249 to 252) what is: ‘access’?

Answer 93

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

Question 94

Under S248 (Interpretation: For the purposes of this section and sections 249 to 252) what is: ‘authorisation’?

Answer 94

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

Question 95

What is S249 CA1961? (Accessing computer system for dishonest purpose)

Answer 95

249 Accessing computer system for dishonest purpose

(1) 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) 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 96

What is the difference between S249(1) and 249(2)? (Accessing computer system for dishonest purpose)

Answer 96

(1) is where someone has actually accessed a computer system, obtains the offending material or causes loss.
(2) is someone who actually accesses the computer system with that intent regardless of the result.

Question 97

What is S250 CA 1961 (Damaging or interfering with computer system)

Answer 97

250 Damaging or interfering with computer system

(1) 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) 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 98

What is the distinction between S250(1) and 250(2)?

Answer 98

(1) = criminalises the destruction, damaging or altering of a computer system that the defendant knows or ought to know would endanger life whereas
(2) = criminalised the damage etc to any computer system an adds the requirement that the defendant must act without authority with the knowledge that they are not authorised or are reckless whether they are authorised

Question 99

What is S252 CA1961? (Accessing computer system without authorisation)

Answer 99

252 Accessing computer system without authorisation

(1) 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.

Question 100

Does a person have to be physically present when accessing a computer system under S252? (Accessing computer system without authorisation)

Answer 100

No. Under R v Walker, the offending was carried out from a remote computer.

Question 101

R v Morley

Answer 101

Representations must relate to a statement of existing fact, rather than a statement of future intention.