4. Propensity and Fraud Offences

Question 1

What is propensity?

Answer 1

evidence that tends to show a persons 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 does not include evidence of an act or omission that is (1) 1 of the elements of the offence for which the person is being tried or (2) the cause of action in the proceeding in question.

Question 2

What must a judge consider when assessing the probative value of propensity?

Answer 2

• The frequency which the AOEC have occurred
• The connection in time between the AOEC and the AOEC which constitute the offence being tried
• The extent of the similarity between the AOEC
• The number of persons making allegations that are the same or similar to the matter being tried
• If the allegations may be the result of collusion or suggestibility
• The extent to which the acts are unusual

Question 3

What must the Judge consider when determining the use of propensity?

Answer 3

(a) whether the evidence is likely to unfairly predispose the fact finder against the defendant and (b) whether the fact finder will give disproportionate weight in reaching a verdict to evidence of other acts or omissions.

Question 4

What is the definition of title?

Answer 4

a right or claim to the ownership of property i.e. a legal right to the property.

Question 5

What is the difference between theft and obtaining by deceit?

Answer 5

A thief never gets title but a person who obtains by deception induces another to hand over the goods with the intention that the title will get passed on.

Question 6

What is a voidable title?

Answer 6

a title obtained by deception, fraud, duress or misrepresentation is called ‘voidable title’. This means that the title can be avoided by the seller

Question 7

How can a title be voided?

Answer 7

by advising the deceiver, by letter or in person, that they are aware of the deception. Or a public notice in the paper or complaining to Police is sufficient. However, if an innocent purchaser buys goods obtained by deception, before a title has been avoided, then they are entitled to a good title.

Question 8

There may be an offence under s220, theft by person in a special relationship where the defendant intentionally…?

Answer 8

• failed to account to any other person for property, or proceeds of property.
• dealt with property, or proceeds of property, otherwise than in accordance with requirements of some other person.

Question 9

What are the mental elements to be proven for theft by person in a special relationship, s220?

Answer 9

1) the defendant knew that the acquisition of property required them 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) the defendant intentionally departed from their relevant obligations.

Question 10

What are the elements for forgery - making false document with intent to obtain property - s256(1) and sentence?

Answer 10

256(1) - 10 years
• made a false document
• with the intention of using it to obtain any property, etc

Question 11

When is forgery deemed to be complete?

Answer 11

Forgery is complete as soon as the document is made with the required intent.

Forgery is complete even though the false document may be incomplete, if it is so made and is such as to indicate that it was intended to be acted upon as genuine.

Question 12

What is covered within the definition of a false document?

Answer 12

• where the whole or any material part purports to be made by any person who did not make it, or by a fictitious person, or on behalf of any person who did not authorise its making.
• where the whole or any material part has been altered and that it was done 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.
• that is, in whole or in part, a reproduction of any other document, that is not authorised.
• that is made in the name of a person with the intention it should pass as being made by someone else who did not make it.

Question 13

What is held regarding a false document?

Answer 13

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

Question 14

What constitutes altering a document?

Answer 14

any additions, insertions, deletions, obliterations, erasures, removal or material or otherwise.

Question 15

What is the definition of a material alteration?

Answer 15

if it increases the value or negotiability of a document or instrument.

Question 16

What are the elements and imprisonment for using forged documents (s257)?

Answer 16

• knowing a document to be forged
• used the document to obtain any property, etc OR
• used, dealt with or acted on it as if it were genuine OR
• caused any other person to do so
(10 years)

Question 17

What must be proved for using forged documents?

Answer 17

• the defendant knew the document was a forgery at the time of the act
• the document was false
• defendant knew the document has been made to be false.

Question 18

What is the difference between forgery and altering/reproducing a document?

Answer 18

With forgery an intent to deceive only is required, not an intent to obtain by deception. For the offence of altering, etc, it must be proved that the offender intended to obtain by deception.

Question 19

What are the elements for forgery - making false document with intent to obtain property - 256(2), and sentence?

Answer 19

256(2) - 3 years
• made a false document
• knowing it to be false
• with the intent that it in any way to be used or acted on, whether in NZ or elsewhere, as genuine.

Question 20

When may evidence of propensity be called in cases of deception?

Answer 20

Propensity evidence is admissible in cases of deception where there is a sufficiently strong connection between the offences.

Question 21

what two important questions should be asked of a victim who has been defrauded?

Answer 21

• That the false representation was believed, and

* That it was the consequence of that belief that the victim parted with his or her money.