Access

Question 1

Define the term access under S248

Answer 1

The term 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 2

Explain what actions would involve accessing a computer system

Answer 2

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

Question 3

For a charge of accessing a computer system for dishonest purpose to be proved under S249(2) to be successful what intents must be proved?

Answer 3

For a charge to be successful it must be proved that the offender accessed any computer system with INTENT, dishonestlt 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

Question 4

Explain the distinction between offences under S249(1) and 249(2)

Answer 4

S249(1) is directed at a situation where a person has actually accessed a computer system, obtains the offending material or causes loss, whereas S249(2) is directed at someone who actually accesses the computer system with intent regardless of the result

Question 5

Describe a situation where a person nay not be physically present at a computer to access it

Answer 5

A person may not be physically present at a computer but can gain access to it via sofrwarebthat remotely infects computers

Question 6

Deception S240(2)

Answer 6

(a) a false representation, whether oral, documentary or by conduct where the person making the representation I tends 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 7

What is required to prove a false representation?

Answer 7

That there was an 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

Question 8

Obtain

Answer 8

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

Question 9

Representations can be made in three ways or a combination of three ways. What are these?

Answer 9

Orally, documentary or by conduct

Question 10

What are the differences between obtaining property by deception and theft with regard to possession?

Answer 10

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

Question 11

Under what circumstances does a person keep title of good if they have fraudulently induced another to hand over goods with the intention that title will pass

Answer 11

Section 246(4) is an exception to the rule that you cannot get a better title than the seller. If the original purchase subsequently sells the goods to an innocent buyer then the title has been made legal

Question 12

How can you avoid title?

Answer 12

Take all possible steps to bring it to the drivers notice eg phone, text, email, letter
By advising police that the property has been obtained by deception

Question 13

When is forgery complete

Answer 13

Forgery is complete as soon as the document is made with the intent described in subs(1) of S256 or with the knowledge and intent described in subs(2)

Question 14

Define claim of right

Answer 14

Claim or right, in relation to any act, means a belief at the time of the act is a proprietary or possessor right in property in relation to which the offence is alleged to hVe been committed, although that belief may be based on ignorance or mistake of fact or any matter of law other than the enactment against which the offence is alleged to have been committed

Question 15

Define Cameron v R

Answer 15

Recklessness is established if:

(a) the defendant recognised that there was a real possibility that:
(i) his/her actions would bring about the procmscrived result; and/or
(ii) that the proscribed circumstances existed; and
(b) having regards to that risk those actions were unreasonable

Question 16

What was held in R v MORLEY with regard to intent

Answer 16

The intention to deceive requires that the deception be practices in order to deceive the affected party. Purposeful intent must exist at the time of the deception

Question 17

Actual possession

Potential possession

Answer 17

Actual possession arises where the thing in question is in a person’s physical custody or control

Potential possession arises when the person has the potential to have the thing in question in their control

Question 18

Property

Answer 18

Includes real and personal property and any estate or interest in any real or wrongly property, money, electricity, and any debt and anything in action and any other right or interest

Question 19

Privilege or benefit

Answer 19

Special right or advantage

Question 20

Pecuniary advantage R v HAYES

Answer 20

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

Question 21

Valuable consideration R v HAYES

Answer 21

A valuable consideration is anything capable off being valuable consideration whether of a monetary kind or of any other kind; in short, money or money’s worth

Question 22

Dishonestly

Answer 22

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 23

Attempted use R v HAYES

Answer 23

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

Question 24

Document

Answer 24

Includes part of a document in any form and includes:
Paper/material containing anything that can be read
Photos, negatives and related items
Discs, tapes, cards and other devices/equipmeng on which information is stored and can be reproduced

Question 25

R v Misic

Answer 25

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

Question 26

Define debt

Define liability

Answer 26

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

Question 27

What is a material particular

Answer 27

Material particular is not defined in the Crimes Act and can be given its usual meaning of an important, essential or relevant detail or item

Question 28

State four sources available through MBIE

Answer 28

Registrar of companies
Companies office
Official assignee
Insolvency services

Question 29

What knowledge must an accuses have to be liable for making a false representation?

How can knowledge be established?

Answer 29

The accused must know or believe that it is false in a material particular, or be reckless whether it is false. Absolute certainty is not required and wilful blindness as to falsity of the statement will suffice.

Knowledge can be established by:
Admission
Implications from circumstances surrounding the event
Propensity evidence

Question 30

Define computer system

Answer 30

(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; or
(b) includes any part of the items described in para(a) and all related input

Question 31

When may propensity evidence be called in cases of deception?

Answer 31

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

Question 32

Investigating credit card/cheque fraud. List info to be gathered from bank accounts manager

Answer 32

Account holders detaila
Date the account was opened
Account history and how operated
Date the credit card/cheque was reported missing
How and who reported it
Serial numbers of missing cheques
Details of chairs dishonoured and returned
Whether account holder is suspected of issuing valueless cheques

Question 33

For propensity evidence to be admissible the ultimate issue is

Answer 33

The degree to which the privatise value of the evidence outweighs the prejudicial effect

Question 34

List ingredients in forgery S256

Answer 34

Everyone is liable to imprisonment for a term not exceeding 10yrs who makes a false document with the intention of using it to obtain any property, privilege, service, pecuniary advantage, benefit or valuable consideration

Question 35

When interviewing a victim who alleges that they have been defrauded what are two important questions that should be asked by an investigator?

Answer 35

That the false representation was believed and

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

Question 36

What are two core elements when it comes to an offence of theft under S220 theft by person in special relationship?

Answer 36

(a) that he or she have received property on terms or in circumstances which, to the accused’s knowledge, affect what the accused may do with the property or it’s proceeds or require the accused to act in accordance with the requirements of another person and
(b) that the accused intentionally departed from the relevant obligation

Question 37

Define false representation under S240(2)

Answer 37

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

Question 38

Define credit Fisher V Raven

Answer 38

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 39

R v LAVERTY

Answer 39

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

Question 40

List the resources available to police in company fraud investigations

Answer 40

Police accountants and legal officers
MBIE
Commerce commission 
Financial markets authority
Nz customs
Liquidators and receivers

Question 41

Company fraud:
Cat a
Cat b 
Cat c
Cat d

Answer 41

A - large scale theft against employers by employees, usually people such as accountants and managers who use their position to manipulate the company’s financial systems

B - dishonestly offence committed against financial institutions by obtaining money through deception or GST fraud

C - commercial fraud committed against the public by people who through the guise of a company, entice people to invest money

D - dishonesty offence committed by professional people, solicitors and accountants, against their clients

Question 42

Records available through SW or PO

Answer 42

Details of cheque or eftpos transactions or bank statements
Diary notes
Copies of letters sent to customers
The cheque register which may be comouterised
Stop payment notices