Deception CIB 008 Part 2 Flashcards
Ultimate issue of propensity evidence
The degree to which the probative value of the evidence outweighs the prejudicial effect.
Section 40 Evidence Act 2006
Propensity rule (1)
(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, ommissions, events or circumstances with which the person is alleged to have been involved; but
(b) does not include evidence of an act or omission that is-
- 1 of the elements of the offence
- the cause of action in the proceeding in question
Section 43 Evidence Act 2006
Propensity evidence offered by prosection
(1)
(1) only if the evidence has a probative value in relation to an issue in dispute which outweighs the risk that the evidence may have an unfairly prejudical effect on the defendant
Section 43 Evidence Act 2006
Propensity evidence offered by prosection
(2)
The judge must take into account the nature of the issue in dispute
Section 43 Evidence Act 2006
Propensity evidence offered by prosection
(3)
(3) Considerations for judge when assessing probative value:
a) the frequency with which the acts, ommissions, events or circumstances which are the subject of the evidence have occured
b) the connection in time between the acts ommissions, events or circumstances which are the subject of the evidence and the acts ommissions, events or circumstances which are being tried;
c) the extent of the similarity between the acts ommissions, events or circumstances which constitute the offence being tried;
d) the number of persons making the allegations
e) whether those allegations be the result of collusion or suggestibility
f) the extent to which the acts ommissions, events or circumstances which are the subject of the evidence and the acts, ommissions, events or circumstances which consistue the ofence are unusual.
Propensity -admissibility & relevance
Adams on Criminal Law
Adams on Criminal Law
Persistent dishonesty accross the board, embracing a number of offences would not in itself bring the propensity rule into play. It is more likely to be deployed in cases involving specific offences with a discernable methodology or pattern
Evidence Act 2006 Section 7 (3) Evidence & relevance
Evidence is relevant:
if it has a tendency to prove or disprove anything that is of consequence to the deteremination of the proceeding.
Rv Sharma
The ultimate issue is the degree to which the probative value of the evidence outweighs its prejudical affect
Title -definition
A right or claim to the ownership of property
A legal right to the property
Three ways to avoid title
- Communicating with defendant
- Taking all reasonable steps to bring to notice
- Advising police of circumstances
General rule of law on Title
No one can pass on a better title than they themselves have.
Section 25 Sale of Goods Act 1908
- Seller of goods has a voidable title,
- but the 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 sellers defect of the title.
Forgery
Section 256 (1) Crimes Act 1961
10years who:
- Makes a false document
- With the intention of using it
- to obtain any Benefit; Property; Privilege; Pecuniary Advantage; Service or valuable consideration
Forgery
Section 256 (2) Crimes Act 1961
(2) 3 years who:
- Makes a false document
- Knowing it to be false
- With the intent that in any way be
- used or acted upon
- whether in NZ or elsewhere
- as genuine
Forgery- completion
Forgery is complete as:
- soon as the document is made with the intent
- described in subsection (1) of section 256 or
- with knowledge and intent described in subsection (2).
Section 255 (a) Crimes Act 1961
False Document definition
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
Section 255 (b) Crimes Act 1961
False Document definition
means a document:
(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
Section 255 (c) Crimes Act 1961
False Document definition
means a document-
(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
Section 255 (d) Crimes Act 1961
False Document definition
means a document-
(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
Section 255 (e) Crimes Act 1961
False Document definition
means a document-
(e)
- that is made in the name of a person
- either by that person or by that persons 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
False document - bottom line
The document itself 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.
Example: A print of a forged Goldie painting is not forgery- only the original forgery claiming to be an unforged original constitutes a forgery
Section 257 (1) Crimes Act 1961
Using forged documents
(1) 10 years who, knowing a document to be forged:
(a) uses the document to obtain any Property, Privilege, Pecuniary Advantage, Benefit, Service 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.
Section 258 (1)(a) Crimes Act 1961
Altering, concealing, destroying or reporducing documents with intent to decieve
(1) 10 years who:
- With intent to obtain by deception any
- Property, Privilege, Pecuniary Advantage, Benefit, Service, or Valuable Consideration,
- or to cause loss to any person-
(a) Alters, Conceals, or Destroys any document, or
Ccauses any document to be Altered, concealed or Destroyed; or
Section 258 (1)(b) Crimes Act 1961
Altering, concealing, destroying or reporducing documents with intent to decieve
(1) 10 years who:
With intent to obtain by deception any
Property, Privilege, Pecuniary Advantage, Benefit, Service, or Valuable Consideration,
or to cause loss to any person-
(b) makes a document or causes a document to be made that is
in whole or in part, a reproduction of any document
Access -definition under 248
The access in relation to any computer system, means:
- instruct, communicate with, store data in, receive from, or otherwise make use of
- any of the resources of the computer system.
Actions involved with accessing a computer system
Access requires:
- 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.
Intent to prove within Section 249(2) Crimes Act 1961
(a) obtained any property, privilege, service, pecuniary advantage, benefit, valuable consideration or;
(b) cause loss to any person
Differences between 249 (1) & 249 (2) Crimes Act 1961
1 - is directed at the situation where a person has actually accessed a computer system, obtains the offending material or causes loss to any person.
2 - is directed at someone who actually accesses the computer system with that intent regardless of the result
Forgery vs Altering a document
Forgery - intent to decieve
Altering a document- intent to obtain by deception
Credit card and cheque fraud –what to find out from a bank
- the account holder’s full details -name, occupation, private and business addresses and telephone numbers
- whether the account holder is suspected of issuing valueless cheques.
- the date the account was opened
- the account history and how it has been operated
- the (2M) date the cheque book or credit card was reported missing
- how and by whom (K6) a loss was reported
- the SN serial numbers of any missing cheques
- details of any cheques dishonoured and returned
Definition of a 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.
Definition for Authorisation
Section 248 Crimes Act 1961
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
Accessing Computer System without Authorisation
Section and Elements
S252 CA61
(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.
Damaging or Interfering with a Computer System
Without authorisation damage, delete, modify
Section and Elements
S250 CA61
(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.
Three mental elements of section 259 CA 1961
Firstly the defendant must know that the document had been altered with intent to deceive.
Secondly, 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,
Thirdly, there must be an intention to acquire or retain the property etc, or to cause loss, “by deception”.
