Short answer

Question 1

What are two mistaken beliefs in relation to a person acting dishonestly? and what is the relevant case law?

Answer 1

That the act or omission was expressly or impliedly consented to by a person entitled to give consent
The act or omission was authorized by a person entitled to authorize it

Hayes v R (Dishonestly) -
The question is whether the belief is actually held, not whether that belief is reasonable. However, reasonableness may be relevant as evidence on the issue of whether the belief was actually held

Question 2

What 4 beliefs must exist if a defendant wishes to rely on a claim of right defence?

Answer 2

Must relate to actual property specified in the offence
Can be a belief as to another person’s right to property
Must be held at the time of the offence
Must be actually held by the defendant, does not have to be reasonable.

Question 3

When is the offence of taking a document committed?

Answer 3

committed by taking when the offender moves the property or causes it to be moved.

Question 4

Would passing on a document to another consitute an offence? what case law could fit here?

Answer 4

Use can include a single action such as handing over a document to its intended recipient or continuing use

Hayes v R (Unsuccessful use)
An unsuccessful use of a document is as much use as a successful one.

Question 5

What is required to prove a “false representation”?

Answer 5

That there was an intent to deceive
That there was a representation by the defendant
That the representation was false and the defendant either:
1) knew it to be false in material particular or
2) was reckless whether it was false in material particular

Question 6

Could you recklessly deceive a person, include case law?

Answer 6

Reckless only relates to whether a representation is false in material particular, intent to deceive must be intentional, cannot recklessly deceive someone or done without intending to do so.

R v Morley (intent to deceive)
An intention to deceive requires that the deception is practiced in order to deceive the affected party. Purposeful intent is necessary and must exist at the time of the deception.

Question 7

What are the three ways you can make a representation to decieve? and provide an example for each

Answer 7

Orally -
Verbally claiming to own goods that are in fact subject to a hire purchase agreement

Documentary -
Presenting a false certificate of qualification or completing a valueless check knowing the check will not be honored.

By conduct -
Representing oneself to be a charity collector

Question 8

Explain and provide an example of a continuing affect of a representation.

Answer 8

In may cases a representation will have a continuing affect for example ordering dinner represents that you will pay for the meal, if you decide to avoid payment during the dinner the continuing representation will come under 240

Question 9

Will silence be a representation? provide relevant case law?

Answer 9

As a general rule silence or non disclosure will not be regarded as a representation.
Some exceptions

Label swapping : Police v Dronjak
Shopping and swapping a label from an expensive item to a cheap one and allowing the cashier to check the cheap label , held that the silence amounted to a representation.
Maintaining silence in the face of a mistake known to him and deliberately drawing the checkout assistant to the mistake, dronjak obtained title by false representation.

Question 10

How do you establish defendants knowledge and representation was false

Answer 10

An admission
Implication from circumstances surrounding
Propensity evidence

Question 11

What is a duty to disclose?

Answer 11

Requires to show there was a material particular that the defendant was under a duty to disclose but failed to do so

This will often originate in civil law where parties are in a contractual relationship

Question 12

Do you need physical possession to obtain goods?

Answer 12

Goods are obtained if they come under their control even though they might not have physical possession

Property may be obtained if deception means that property is actually obtained from another person provided that deception operated on the mind of the person giving up the property

Question 13

What is a special interest and provide an example?

Answer 13

SPECIAL INTEREST
It is sufficient if A person whom the goods were obtained had some special interest in the goods without having actual ownership

Special interest Lien
Eg mechanic puts part on car not paid for, has a special interest or right over the goods until the debt is paid.

Question 14

3 examples of a pecuniary advantage?

Answer 14

cash from stolen goods
Clothing or cash obtained by credit
A discount
Avoiding the payment of a debt

Question 15

3 examples of a privilege or benefit

Answer 15

using another person’s gym membership
Access to medical services
Withdrawal of an assault charge
Reduction in sentence for an offence

Question 16

3 Examples where credit may be obtained

Answer 16

Obtaining money on load
Extending overdraft facilities
Renting or leasing a dwelling

Question 17

When obtaining credit if you later down the track decide not to pay it, is this an offence>?

Answer 17

Gaining credit is not unlawful unless it is accompanied by an intent to deceive

Timing of intention to deceive
Must exist at the time the time the deception is perpetrated, so when credit is obtained and a later decision to not repay is insufficient

Question 18

Can a 3rd party who obtains credit be involved in the offence?

Answer 18

Longstanding authority that credit must be obtained and given to the defendant personally
Extended definition of obtain makes it sufficient that the defendant obtained the extension of credit of another person

Question 19

Would it be an offence to not pay for a dinner due to dissatisfaction?

Answer 19

Intent to deceive is does not exist where payment is withheld because of genuine dissatisfaction of service
Eg where payment iof the cost of a meal isd refused due to the poor quality of the food.

Question 20

When would a person commit theft by converstion

Answer 20

Hire purchase
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, the offender never receives title for goods fraudulently obtained on hire purchase.

Question 21

How do you prove inducement?

Answer 21

Best proved by the direct evidence of the person alleged to have been defrauded, in practice the victim is questioned to elicit answers proving:
That the false representation was believed
That it was a consequence of that belief that the victim parted with his or her money

Question 22

is it still an offence of deception if the complainant does not believe the representation but parts with money anyway?

Answer 22

If the person does not believe the false representation and still parts with money as a consequence it cannot be said the property was obtained by deception

R v Laverty
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.

E.g owner who parts with his property solely as a means of trapping the person who made the false representation

May be liable for attempting to obtain by deception but not this offence

Similarly a person who believes the false representation but is not induced to part with his property does not complete the offence, still may be an attempt.

Question 23

Will indirect losses constitute an offence?

Answer 23

Loss caused by deception must be in the nature of a direct loss, indirect loss and loss of anticipated future earnings are not included.

Question 24

outline propensity and when it could be used?

Answer 24

S40 evidence act
Evidence that shows a person has a tendency to act in a certain way or have a certain state of mind.

Propensity evidence
Prosecution may offer if the probative value outweighs the risk that it may have a unfairly prejudicial effect on the defendant

Needs to be a strong connection between cases.

Eg other cheques drawn by the defendant have been dishonored

Needs to be a specific MO or methodology to the offending introduced, not just general dishonesty.

Question 25

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

Answer 25

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

Question 26

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

Answer 26

A person can keep title of goods fraudulently obtained when:
- Section 264(4) is an exception to the rule that you cannot get a better title that the seller. If the original purchaser subsequently sells the goods to an innocent buyer (one who is not aware of the defect in title) then the title has been made legal.

Question 27

How can you avoid title?

Answer 27

A
Title can be avoided by:

Communication to B. The taking of all possible steps to bring it to B’s notice eg by writing a letter, text, cell phone call etc
By advising the police that the vehicle was obtained by fraud

Question 28

Does a person who knowingly receives stolen good which have good title commit a offence?

Answer 28

S246(4)
Receiving after restoration to owner

Subsequent receiving of property which has acquired legal title, even if it is known to be stolen, is not an offence.

Eg property obtained by deception bought in good faith, gives it good title, this same property is then sold to someone who knows it has been stolen, this is not an offence.

Subsequent receiver who obtains good which the title has been voided may commit an offence or party to;.

Question 29

What is the definition of “a material particular”?

Answer 29

A matter will be a material particular if it is something important or something that matters.

ie an important, essential, or relevant detail.

Question 30

What are three examples of a valuable consideration?

Answer 30

monetary payment in return for goods or services
goods given in return for services provided
issuing a false invoice to receive payment for goods never supplied

Question 31

What exemplifies a representation?

Answer 31

Examples have included representations about a past or present fact, about a future event, or about an existing intention, opinion, belief, knowledge or other state of mind.

Simester and Brookbanks suggests “ it must be capable for being false so it must contain a proposition of fact.

Question 32

Explain “voidable title”?

Answer 32

A title obtained by deception, fraud, duress or misrepresentation is called a voidable title.

This means the title can be avoided by the seller. Thus if an innocent person purchases goods obtained by deception before title has been avoided, then he or she is entitled to good title.

Until the title is avoided, the defrauder has a voidable title, and can confer good title on anyone who acquires the goods from him in good faith and for value.

Question 33

What four occasions does theft by person in special relationship occurr?

Answer 33

Failed to account to any other person for property received by the defendant
Failed to account to any other person for the proceeds of property received by the defendant
Dealt with property received by the defendant otherwise in accordance with the requirements of some other person
Dealt with the proceeds of property received by the defendant otherwise than in accordance with the requirements of some other person.

Question 34

What are the 2 core elements required for an offence of Theft By Person In Special Relationship?

Answer 34

That he received property on terms or in circumstances which to the defendant’s knowledge affect what the defendant may do with the property or its proceeds or require the defendant in accordance with the requirements of another person

That the defendant intentionally departed from the relevant obligation.

Question 35

What are the 3 mental elements of theft by person in special relationship?

Answer 35

Knew the acquisition of the property came with requirements
Defendant was aware there are terms affect the freedom of his action
Defendant intentionally departed from his obligations

Question 36

Q
What are the ingredients of Using altered or reproduced document with intent to deceive?

Answer 36

Knowing any document to have been made or altered

With intent to obtain by deception any property, privilege, service, pecuniary advantage, benefit, or valuable consideration, or to cause loss to any other person

(a) uses or deals with, or acts upon the document
(b) causes any person to use or deal with, or act upon the document.

Question 37

List the offence of forgery

Answer 37

Forgery S256 CA61

10 yrs
(1)
Makes a false document with intent to obtain any property privilege service, pec advantage, benefit or valuable consideration

(2) 3 yrs

Marks a false document knowing it to be false with intent that it be used or acted upon in Nz or elsewhere as genuine.

(3)
Forgery is complete as soon as the document is made with the intent to use.

(4) forgery is complete even though the document may be incomplete, or not purport to be such a document that would be binding or sufficient in law, if it is made as to indicate it was intended to be acted upon as genuine.

Question 38

Define a false document

Answer 38

S255
Means a document
Of which the whole or any material part purports to be made by a person who did not make it or a fictitious person
Of which the whole or any material part purports to be made by or on behalf of a person who did not authorize its making. or a fictitious person
Of which the whole or any material part has been altered or purports to be altered on behalf. or a fictitious person
A reproduction of any documents that which the whole or any material part purports to be made on behalf of a person who did not authorize or a fictitious person
That is made in the name of a person either by that person or by that person’s authority with the intention that it should pass as being made by some other person who did not make it or a fictitious person

Question 39

What is the shorthhand term for a false document

Answer 39

A false document must meet definition of false and document

Essentially a false document must lie about itself.

Just because a lie is put in writing does not make a document a forgery. The document itself must lie about itself.

Example
A print of a forged painting is not a forgery, only the original forgery claiming to be an unforged copy constitutes a forgery.

Question 40

What are 6 material alterations which make a document false?

Answer 40

Additions
Insertions
Deletions
Obliterations
Erasures
Removal of material

Question 41

Is a photocopy of a false document a forgery?

Answer 41

A photocopy of a false document claims merely to be a copy and therefore does not tell a lie about itself.

Question 42

What does the prosecution need to prove in relation to forgery?

Answer 42

Prosecution must prove at the time of the act that:
The defendant knew the document was false and intended either
To use the false document to obtain
That the false document be used or acted on as genuine.

Question 43

4 examples of forgery

Answer 43

Writing an examination paper in the name of a person who is required to sit the exam

Pre dating a deed to give it priority over another

Forging letters of recommendation for the inclusion in a CV that are necessary to obtain a position

Falsely completing a statement of service on a witness summons

Question 44

When is forgery complete?

Answer 44

A
Forgery is complete as soon as the document is made with the intent described in subsection (1) of section 256 or with the knowledge and intent described in subsection (2)
Document not required to be completed, however if it is incomplete and obviously erroneous, it may be hard to prove intent to pass as genuine

Question 45

Is a specific person required to be misled for forgery?

Answer 45

You do not need to intend that a particular person will be affected by the document, offence complete at time document is made with knowledge and intent

Question 46

Outline the offence of using forged documents

Answer 46

S257 USING FORGED DOCUMENTS
10YR

Knowing a document to be forged
A)Uses the document to obtain any property privilege ….
B)Uses deals with or acts upon the document as if it were genuine
C) causes any person to use or deal with as if it were genuine.

Documents made outside NZ in a manner which would be forgery in NZ shall be deemed a forged document.

Question 47

What needs to be proved for a person to have used a forged document?

Answer 47

Prove:
Document was false
User knew the document had been made with knowledge and intent under 256

Question 48

Difference between forgery and altering a document

Answer 48

Forgery an intent to obtain property etc is only required, not an intent to obtain by deception
In altering, you must prove the offender intended to obtain it by deception.
Forgery must be a false document as defined
Any document can be altered for s258

Question 49

What conduct is required for using a altered document with intent to deceive?

Answer 49

Only require the defendant to have used the document
Will not include transactions with others who are aware of the documents nature
Prosecution must prove that the document had previously been altered with intent to deceive, though it would not need to identify the person who had done so.

Question 50

What are the mental elements to using a altered document? (3)

Answer 50

Defendant knew the relevant matters in relation to the document, that it was altered with intent to deceive
The defendant intended byt the use of the document to obtain by deception any property etc.. or to cause loss to any person
Intention to acquire or retain the property or to cause loss by decepti

All is required that there be an intention to deceive another person by a lie or deliberate failure to comply with a duty to disclose the truth.

Question 51

Distinction between the s249 computer crime offences?

Answer 51

Distinction between 249(1) & (2)

Difference is ‘thereby’ and ‘obtains’ 249(1) directed at the situation where a person has accessed a system and obtains the offending material or causes loss.
s4992) is directed at someone who accesses the system with that intent regardless of the result.

Question 52

Does a benefit have to be financial for S249 offences?

Answer 52

Man was charged under 249(1) for accessing for the purpose of a benefit namely the emails and password for his ex partner stored on telstra clear.
Man had become an employee and used his position to access his former partners’ stuff.

PO was in place and that accessing the account gave him a benefit in that he could overcome the absence of contact enforced by that order.

A non pecuniary benefit could fall within the ambit of the dsection.
Common sense supported the view that given the sour relationship the appellant could not access the email account without the consent of the ex partner which he did not have.

Question 53

Distinction between offence 250(1) & (2) Computer system offences

Answer 53

1) Criminalizes the damaging or altering of a computer system where they ought to know this would present a risk to life

2) Makes it an offence to damage any computer and adds the requirement the defendant acts without authority and with the knowledge that they are not authorized or reckless to the fact
(2)(b) is directed at instances where the defendant has arranged matters that the victims operation of his computer will cause damage to the victims system (malicious hack or virus.)

Question 54

For a charge of Accessing A Computer System For Dishonest Purpose to be successful, what intents must be proved?

Answer 54

(a) obtained any property, privilege, service, pecuniary advantage, benefit, or valuable consideration.
(b) causes loss to any other person.

Question 55

Describe a situation when a person may not be physically present at a computer to access it.

Answer 55

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

Question 56

in r v morley what was held that the prosecution must prove in a obtain by deception loss case?

Answer 56

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

Question 57

explain what actions would involve accessing a computer system

Answer 57

Requires a person instructing the computer has form of connection which communication may pass