Miscellaneous

Question 1

Section 220 CA 1961

Theft by Person in Special Relationship

Answer 1

Where the defendant has:

• failed to account to any other person for property or proceeds of property received by the defendant
• dealt with property or proceeds of the property received by the defendant otherwise than in accordance with the requirements of some other person

Question 2

Mental Elements of Section 220

Answer 2

• the defendant must know that the acquisition of the property was on terms and requirements which require them to account for the property or its proceeds
• The defendant must have intentionally departed from his or her obligations (Adams on Criminal Law)

Question 3

Section 249 CA 1961

Accessing Computer System for Dishonest Purpose

Answer 3

Directly or indirectly, accesses any computer system (1. and thereby or 2. with intent) dishonestly or by deception, without Claim of Right, obtains any property, privilege, service, pecuniary advantage, benefit, or valuable consideration OR causes loss to any person

Question 4

Distinction between subsection 1 and 2 of section 249

Answer 4

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

Question 5

Section 256 CA 1961

Forgery

Answer 5

1. Makes a false document, with the intention, of using it to obtain any property, privilege, service, pecuniary advantage, benefit, or valuable consideration
2. Makes a false document, knowing it to be false, with the intent that it in any way, be used or acted upon

Question 6

Forgery - False Documents

Answer 6

To have been forged it must meet the definitions of false and document. A false document must lie about itself.

• a document made by a fictitious person
• a document by on or behalf of someone who did not authorise its making
• a document altered by on or behalf of a fictitious person
• a reproduction of any document by on or behalf of someone who did not authorise its making
• a document made in the name of a person, by that person, or with that persons authority, with the intent that it should pass as being made by a person who did not make it

Question 7

Forgery - Material Alterations

Answer 7

Increases or decreases the value or negotiability of a document or instrument

Question 8

Section 257 CA 1961

- Using Forged Documents

Answer 8

Knowing a document is forged:

• uses a document to obtain any property, privilege, service, pecuniary advantage, benefit, or valuable consideration
• uses, deals with or acts upon the document as if it were genuine
• causes any other person to use, deal with, or act upon it as it if it were genuine.

Question 9

Section 258 CA 1961

Altering, Concealing, Destroying, or Reproducing Documents with Intent to Decieve

Answer 9

• With intent to obtain by deception any property, privilege, service, pecuniary advantage, benefit, or valuable consideration, or to cause loss to any other person
• alters, conceals, destroys any document, or causes any document to be altered, concealed or destroyed
• makes a document or causes a document to be made that is, whole or in part, a reproduction of another document

Question 10

The difference between forgery and altering a document

Answer 10

Rests in the varying definitions of document and intent.

Forgery - an intent to deceive only, not an intent to obtain by deception. The document must also be a false document.

Altering, concealing, destroying, or reproducing a document - the offender must have intended to obtain by deception. The document can be any document.

Question 11

Section 259

Using Altered or Reproduced Documents with Intent to Deceive

Answer 11

Knowing any document to have been made or altered int he manner and with the intent referred to in s258, with intent to obtain any property, privilege, service, pecuniary advantage, benefit, or valuable consideration or to cause loss to any other person

• uses or deals with, or acts upon the document
• causes any person to use or deal with, or act upon the document

Question 12

Three mental elements under section 259 CA 1961

Answer 12

1. the defendant must know that the document had been altered with intent to deceive.
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 or to cause loss ‘by deception’.

Question 13

Obtaining by Deception V Theft

Answer 13

Hinges on the concept of possession and ownership.

If someone has gained something by deception, the owner or person with special interest has freely given the offender possession and/or ownership of the property.

If someone has gained property by way of theft, they have taken it without the owners knowledge or consent and so they only have possession of the property/never title or ownership of it.

Question 14

Hire Purchase

Answer 14

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

However if the offender later sells the goods to another, the offender commits theft by conversion.

Question 15

Timing of ‘Intent to deceive’

Answer 15

Must exist at the time when the deception is perpetrated.

Question 16

Causing Loss

Answer 16

Direct loss and reasonably foreseeable that more than some serious trivial loss would occur.

Question 17

Silence

Answer 17

R v Waterfall - silence or non disclosure will not be regarded as a representation. One exception is label swapping.

Maintaining silence in the face of a mistake known to them and by deliberately refraining from drawing the assistants attention to the mistake, they obtained title by a false pretence.

Question 18

Serious Fraud Office

Answer 18

Investigates serious or complex fraud with an actual or potential loss in excess of $2,000,000. It includes international financial transactions, computer manipulations, involving a public figure, and other complex methods of commission.

Notifications to the SFO must be made with the approval of the District Commander.

Question 19

Company Deception

Answer 19

Category A - Large scale thefts and other dishonesty offences against employers by employees

Category B - Dishonesty offences committed against financial institutions by people outside the institution obtaining money from it

Category C - Commercial deception committed against the public by people who entice others to invest money

Category D - Dishonesty offences committed by professional people in a position of trust against their clients

Question 20

Sources that may assist in Company Deception

Answer 20

• Police accountants and legal officers
• MBIE
• Commerce Commission
• Financial Markets Authority
• NZ Customs
• Liquidators and Receivers

Question 21

Information required by an investigator from banks regarding credit card or cheque fraud

Answer 21

• Account holders details (name, occupation, address, phone number)
• Date account was opened
• Account history
• Date credit card or cheque was reported missing
• How and by whom loss was reported
• Serial numbers off missing items
• Details of any cheques dishonoured and returned

Question 22

Possible enquiries in cheque fraud investigations

Answer 22

• CCTV or photographs of offenders
• Description of suspects, their associates and vehicles
• Sample of suspects handwriting from bank documents
• Details of employees who have assisted the suspect and could help to identify them
• Whether any other banks are having the same problems

Question 23

The Nature of Belief for ‘Claim of Right’

Answer 23

1. Belief must be a belief in a propriety or possessory right in property
2. Belief must be about rights to the property in relation to which the offence is alleged to have been committed
3. Belief held at time of conduct to constitute offence
4. Belief must be actually held by defendant

Question 24

How to avoid title

Answer 24

• attempt to make communication
• take all other possible steps to bring it to their notice, e.g. writing a letter
• advise the police that property was obtained by deception

Question 25

Proving knowledge?

Answer 25

• an admission
• implication from the circumstances surrounding the event
• propensity evidence

Question 26

Propensity Rule - Section 40, Evidence Act 2006

Answer 26

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

Does not include evidence of an act or omission that is one of the elements of the offence for which the person is being tried or the cause of action in the proceeding in question.

Question 27

Propensity Rule - Section 43, Evidence Act 2006

Answer 27

Prosecution may only offer propensity evidence if it 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.

When the Judge is assessing the probative value, they may consider:

• the frequency with which the acts are subject of the evidence,
• the connection in time between the acts/events which constitute the offence
• the extent in similarity of acts/events which are subject of the evidence which constitute the offence
• the number of persons making the allegations against the defendant and whether these allegations may be the result of collusion or suggestibility
• to the extent which the acts/events which are the subject of evidence which constitute the offence are unusual

Question 28

What must be proved - Deception?

Answer 28

1. That was an intent to deceive another person
2. There was a representation by the defendant
3. The representation was false and there defendant either: knew it to be false in a material particular OR was reckless whether it was false in a material particular.

Question 29

What must be proved - Specified Intent (Forgery)?

Answer 29

• at the time of the alleged act, the defendant, knowing that the document was false, had intended either:
• to use the false document to obtain or that the false document be used or acted as genuine

Not enough that document was false and maker knows it as false. Must also be proved offender intended to deceive.

Question 30

What must be proved - Inducement?

Answer 30

By direct evidence from the person alleged to have been defrauded, proving:

• that the false representation was believed AND
• that is was the consequence of that belief that the victim parted with his or her money

Question 31

What must be proved - False Representation?

Answer 31

• there was an intent to deceive
• that there was a representation by the defendant
• that the representation was false AND the defendant either: knew it to be false in a material particular OR was reckless whether it was false in a material particular

Question 32

Penalties - Obtain By Deception

Answer 32

When loss exceeds $1,000 - term of imprisonment not exceeding 7 years

When loss exceeds $500 but does not exceed $1,000 - term of imprisonment not exceeding 1 year

When loss does not exceed $500 - term of imprisonment not exceeding 3 months