Part 1 - Dishonestly taking or using a document

Question 1

2. Define the term ‘dishonestly’ as in s217 CA61?

Answer 1

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

Question 2

3. Define ‘claim of right’ as in s2 CA61?

Answer 2

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 3

4. What is a document as defined in s217 CA61?

Answer 3

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 negatives, 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

Question 4

5.What is held in Hayes v R in regards to ‘using a document’?

Answer 4

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 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 the use does not have to be successful it may be difficult to draw a clear line between use an attempted use

Question 5

6. Define ‘deception’ as in s240(2) CA61?

Answer 5

(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 6

7. What is required to be proven in regards to a false representation?

Answer 6

• 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 7

8. How can a defendants knowledge be established?

Answer 7

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

Question 8

9. What is held in R v Harney in regard to recklessness?

Answer 8

Recklessness involves foresight of dangerous consequences that could well happen, together with an intention to continue the course of conduct regardless of the risk

Question 9

10. What is the difference between a ‘debt’ and a ‘liability’?

Answer 9

Debt means money owing from one person to another; and

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

Question 10

11. Under s240(1)(b) you must prove the identity of the suspect and that they what?

Answer 10

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

Question 11

12. What is held in Fisher v Raven in regards to credit?

Answer 11

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 good

Question 12

13. Induce means ‘to persuade, bring about or give rise to’. The inducement should be proved whenever possible by direct evidence form the person alleged to have been defrauded. When interviewing the victim questions should be used to elicit what?

Answer 12

• 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 13

14. What is held in R v Laverty in regard to inducement?

Answer 13

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 14

15. What is required to be proved in R v Morley in regard to loss?

Answer 14

• must prove that the loss was caused by a deception
• must prove that it was reasonably foreseeable some more than trivial loss would occur, but
• need not prove the loss was intentionally caused

Question 15

16. Define the propensity rule as in s40 EA06?

Answer 15

1. In this section and section 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 ay be offered only in accordance with s41 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 s44
   4) Evidence that is solely or mainly relevant to veracity is governed by the veracity rules set out in s37 and, accordingly, this section does not apply to evidence of that kind

Question 16

17. When assessing the probative value of propensity evidence under s43(3) EA06 what may a judge consider?

Answer 16

a. The frequency with which the acts, omissions, events or circumstances which are the subject of the evidence have occurred
b. the connection in time between the acts, omissions, events, or circumstances which 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 which 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 which 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

Question 17

1. What is held in Hayes v R in regard to a pecuniary advantage?

Answer 17

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

Question 18

18. What is a voidable title?

Answer 18

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

Question 19

19. Person A sells a car to person B, who pays for it with a valueless cheque, how does A avoid the title?

Answer 19

• communicate with B
• take all other possible steps to bring it to B’s notice, eg by writing a letter
• advise the police that the vehicle was obtained by deception

Question 20

20. What must you prove in regard to s256(1) and s256(2) CA61?

Answer 20

s256(1) you must prove the identity of the suspect and that they

• made a false document
• with the intention of using it to obtain any property, privilege, service, pecuniary advantage, benefit, or valuable consideration

s256(2) you must prove the identity of the suspect and that they

• made a false document
• knowing it to be false
• with the intent that it in any way be used or acted on, whether in nz or else where as genuine