Deceit from a distance

Today our Supreme Court held that a person who, outside New Zealand, causes a copy of a document to be created in this country (here, by sending a fax), does an act in New Zealand so as to attract the application of New Zealand law: Walsh v R [2006] NZSC 111 (19 December 2006).

The defendant appealed against convictions for forgery. She had been found guilty on the basis that she had, in Amsterdam, created false documents and then, perhaps after copying them to disguise the method of their creation, she had faxed them to the victims, intending thereby to dishonestly obtain money.

There was a difficulty here with the forgery convictions, because of the legal definition of a forged document as, essentially, a document that told the kind of lie about itself that brought it within the then-applicable statutory definition of false document (see para 9 of the judgment of Elias CJ, McGrath and Anderson JJ, with which Blanchard and Tipping JJ concurred). The difficulty here was that the forgeries were completed (outside the jurisdiction of New Zealand courts) before the copies were made, and the copies purported to be made by the accused, which was true: para 16. This was the position for all except 6 documents; these 6 purported to be letters addressed specifically to particular victims. While this point did not need to be decided, Blanchard J indicated, para 33, that he would have held that there were forgeries, as they each purported to be sent on the authority of their apparent writer, and that was a lie.

No such difficulty existed concerning the offence of uttering, and the Court amended the convictions accordingly. Uttering was defined at the relevant time by s 266 of the Crimes Act 1961, and the accused had committed the offences by sending the faxes to New Zealand: para 19, 20. There was no prejudice to the appellant in these amendments, because in order to have convicted her for forgery the jury must have accepted proof of all the ingredients of uttering. The same statutory maximum penalty applied, and the sentences were confirmed.

As Tipping J pointed out in para 40, the law in New Zealand was “substantially recast” from 1 October 2003 by the present sections 255 – 265 of the Crimes Act 1961, and the appellant would now appropriately be convicted, if she had committed the offences on or after that date, under s 258, of reproducing documents with intent to deceive.

The current offence of forgery attracts the same difficulties as those which were considered in this case, and the prosecution must select a charge appropriate to the circumstances of each case. Walsh is interesting for its reference to the jurisdictional point, and for the reasons why the convictions could be amended.

I wasn’t going to do a blog entry on Clift, R (on the application of) v Secretary of State for the Home Department [2006] UKHL 54 (13 December 2006), but, because there is an interesting parallelism of concepts, I will mention it here. The essential distinction, operative in both cases, is between status and action. In Walsh, the determination of whether a document is a forgery requires analysis of the distinction between what the document is, and what it seeks to do. To be a forgery, the document must make a false assertion about what it is, its status. This must not be confused with what it does, its action, which will be to make a false assertion about some state of affairs and thus mislead its intended recipient. In Clift, the point was that discrimination concerns what a person is, his status, and not what he has done, his action. Thus, in that case, (broadly speaking), a prisoner subject to a different parole regime to others who had received lesser sentences was held not to be the victim of discrimination in contravention of article 14 of the ECHR because the difference in parole eligibility was due, not to his status (as a person), but to his conduct in committing the crime for which he was sentenced.

Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: