Legal Beagle by Graeme Edgeler

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Legal Beagle: On Burglary, or: Dropping the Ball

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  • David Harvey,

    On the computer crime thing - sure, there are many programmes that are capable of being used to commit a crime. There must be a co-existent intention to commit a crime which may be proven by direct evidence or inference. But then lots of stuff can be used for nasty purposes. The crowbar that I am using for my house renovations could be used for a burglary, and the hammer which I use for a legitimate purpose can be used for an offence of violence.

    More detail of the Supreme Court case please - talk about throwing out a teaser!

    Auckland • Since Feb 2012 • 1 posts Report Reply

  • Graeme Edgeler, in reply to David Harvey,

    there are many programmes that are capable of being used to commit a crime. There must be a co-existent intention to commit a crime which may be proven by direct evidence or inference.

    That's true. But the type of crime that has to be proved by that evidence would change markedly. The example I gave the select committee was having an intention to send out election advertisements without promoter statements on them. That fine-only Electoral Act offence does not meet the definition of crime, so the overall "offending" isn't a breach of the computer crime offence provision in the crimes act, if the "intention to commit a crime" bit becomes "intention to commit an offence" it will be enough.

    As I note, the effects of these changes will be far less important than the change to burglary, but I do think the principle objection is sound. Law reform bills of this nature shouldn't be used to drastically expand the scope of offences, even if those offences are hardly ever charged (has anyone been charged with the computer program possession offence?)

    Wellington, New Zealand • Since Nov 2006 • 2996 posts Report Reply

  • Paul Campbell,

    Ah I see what they did there - forget the 3 strikes laws - own a copy of windows, think about downloading a song - go to jail for 2 years

    Dunedin • Since Nov 2006 • 2074 posts Report Reply

  • Graeme Edgeler, in reply to David Harvey,

    More detail of the Supreme Court case please – talk about throwing out a teaser!

    Siemer v Solicitor-General. I was appearing for Mr Siemer as junior, but got around half-an-hour on my feet when it was argued for the second time last week.

    We had a day’s hearing late last year on the question “[do] New Zealand courts have inherent power or jurisdiction to suppress judgments in criminal cases?”

    A week or so after that hearing, we received a minute from the court saying, we’d like to hear argument on two further grounds:

    “[can] a person who wishes to act in a manner contrary to a suppression order may seek to have it rescinded or varied?”

    and

    “[can], in contempt proceedings based on breach of an order of Court, the defendant may raise as a defence that the order should not have been made or made in the terms it was?”

    Counsel for the Solicitor-General raised the suppression rules in the Criminal Procedure Act (and the right of accredited media to be heard on (statutory) suppression orders, and others, by leave) suggesting that they resolved the matter, and then there was a debate about whether in fact, others needed leave to be heard.

    We may find out what the court thinks (although it will be somewhat tangential), but I’m confident that what I meant when I suggested it was that anyone else covering the trial with permission of the judge would have a right to be heard. (that is, if the Court permits a blogger to cover the trial, that blogger then gets the rights of accredited media to be heard on, and appeal suppression orders etc.). It’s important for a few other reasons: non-accredited media includes bloggers, etc, but for a long time, it would have included the NBR, and it still includes many foreign media (I used the example of Ms McQuillan, the New Zealander covering the Guy murder trial for the Australia Associated Press, who became famous for her “Disco Pants”; counsel for the S-G used David Farrar, and was prompted by a judge (or two?) that he wrote Kiwiblog)

    Wellington, New Zealand • Since Nov 2006 • 2996 posts Report Reply

  • BenWilson,

    Wow, this is pretty serious stuff, to have slipped under the radar.

    Auckland • Since Nov 2006 • 8316 posts Report Reply

  • Rich of Observationz,

    Did we ever have midemeanours and felonies in NZ?

    My concern is that BORA got changed so quietly. Isn't it meant to be core, fundamental, rights, not something that can be tweaked at will? I know it's neither entrenched or binding, but if it's amendable late on a Friday while everyone's at the beach, why not replace the whole thing with a Poolean version:

    The subjects of New Zealand exist at the pleasure of their rulers. They have no rights, but may exercise such privileges as the rulers see fit to grant.

    Back in Wellington • Since Nov 2006 • 4421 posts Report Reply

  • Graeme Edgeler, in reply to Rich of Observationz,

    Did we ever have midemeanours and felonies in NZ?

    Pretty much. Crimes/Indictable offences are basically felonies. Lesser offences (now called summary offences, but I don’t think they always were), are basically misdemeanors.

    The basic distinction in New Zealand is that crimes are tried by a judge and jury, and summary offences by a Judge/JP/magistrate (depending on your era and area).

    Wellington, New Zealand • Since Nov 2006 • 2996 posts Report Reply

  • Graeme Edgeler, in reply to Rich of Observationz,

    My concern is that BORA got changed so quietly.

    It wasn’t that quiet. Indeed, it altered during the passage of the bill due to public disquiet.

    The current rule is that a defendant can ask for a jury if the maximum penalty is more than three months’ imprisonment.

    As introduced, this would have changed to “more than three years”, which in reality would have meant at least 5 years (our hierarchy of maximum prison sentences is basically: 3 months, 6 months, 1 year, 2 years, 3 years, 5 years, 7 years, 10 years, 14 years, 20 years, life).

    After public pressure, this became two years or more.

    Wellington, New Zealand • Since Nov 2006 • 2996 posts Report Reply

  • Tim McKenzie,

    this is the type of unintended consequence I try to pick up when I’m writing a submission on a bill, and I dropped the ball.

    Don't be too down on yourself. I'm impressed by how many problems you do notice, and no single person should be expected (or expect themselves) to notice absolutely everything.

    Lower Hutt • Since Apr 2007 • 107 posts Report Reply

  • David Hood,

    I think, from memory, that Keith Ng demonstrated the power of Word at the MSD. I would add that everyone reading this has a tool on their computer (a web browser) that can provide unauthorized access to a website if that websites security is effectively non-existent.
    I am thinking of those cases in other jurisdictions where people have noticed the web address contains something like ID=1001, wondered "what happens if I change the number to 1002, seen confidential information of other people, reported it as a problem with the website security, and wound up being charged with hacking/unauthorized access to a computer system.
    Slightly off topic, but under such circumstances I think the model of "entry" is a very poor one (the metaphor that I am entering the server and looking around). I am making a request of the webserver, the webserver should be verifying who it is making the request to if the information is intended to be confidential. The fault to me lies with the people who set a system that provides intended confidential information to random public requests.

    Dunedin • Since May 2007 • 854 posts Report Reply

  • Will de Cleene,

    Is trespass counted as burglary now? Going by the examples you've given, I presume going behind the school bike sheds at night to smoke a spliff is now burglary too.

    Has the law just grown another ass?

    Raumati • Since Jul 2011 • 105 posts Report Reply

  • Graeme Edgeler, in reply to Will de Cleene,

    Is trespass counted as burglary now?

    Trespass to what? A field, or someone’s front lawn are unlikely to count as an enclosed yard.

    But the fact that trespass is an imprisonable offence shows how much the crime of burglary will expand under this change.

    Wellington, New Zealand • Since Nov 2006 • 2996 posts Report Reply

  • Graeme Edgeler,

    That raises an interesting question. If someone commits the offence of being unlawfully on premises, and they have the intention of being unlawfully on premises, are they (soon to be) committing a burglary?

    Wellington, New Zealand • Since Nov 2006 • 2996 posts Report Reply

  • Nick Kearney,

    Parliament should be very wary about ever giving the government the power to amend primary legislation, but that power should never include the power to expand the scope of criminal offences. And it certainly shouldn’t be doing it in a non-controversial law reform bill.

    Yes. And the current Parliament/Government has done this on one occasion with the dob-in-a-child-abuser legislation, and now propose adding to that with partners of spouses who commit welfare fraud being culpable. Both of these are "new" criminal offences, according to the Ministers. I don't like it at all.

    North Shore, Auckland • Since Nov 2006 • 68 posts Report Reply

  • Rich of Observationz, in reply to Graeme Edgeler,

    Can you explain what "lawful" means? I'd often wondered...

    Is a lawful purpose anything not a crime (or offence?). Is there a reverse onus? Does there need to be a specific purpose that is lawful?

    Back in Wellington • Since Nov 2006 • 4421 posts Report Reply

  • Jarno van der Linden, in reply to David Hood,

    I would add that everyone reading this has a tool on their computer (a web browser) that can provide unauthorized access to a website

    But probably most of us don't possess those tools because we intend to commit an offence with it. I would hope that any possession charge would require some proof that committing a crime is the primary reason for possessing the item.

    Nelson • Since Oct 2007 • 68 posts Report Reply

  • Will de Cleene, in reply to Graeme Edgeler,

    Trespass to what? A field, or someone’s front lawn are unlikely to count as an enclosed yard.

    But jumping over someone's fence to skinny-dip in their pool would count as an enclosed yard.

    Raumati • Since Jul 2011 • 105 posts Report Reply

  • BenWilson, in reply to Will de Cleene,

    Trespassing and stealing a swim, and indecent exposure! Death's too good for him!

    Auckland • Since Nov 2006 • 8316 posts Report Reply

  • Yamis,

    What's the deal with people knocking on your front door to raise money for charity, flog some home ventilation system, or borrow some sugar? They've all clearly entered your property without permission.

    I'm not quite getting the burglary vs trespass difference.

    Could somebody freedom camping on the edge of somebody's farm out in the sticks be charged with burglary? because they would know that they weren't allowed to do that per se, but would just be relying on the fact that they probably aren't really causing any harm. Me and some mates did that all round Europe ten years ago. Some of it on public land, but some on private land (but discreetly) and the owners paid us no mind).

    Me and my father turned up home a few years ago and found an elderly man had parked his car on our property and was sitting in his deck chair, eating his sandwich and admiring the view of the dry stone wall dad had built and the valley beyond.

    He asked us if he was OK there and dad said, no worries, and went to the house and left him too it. My dad told me that when he was younger that that was quite common that people would be out in the countryside and would have a picnic, or take in the scenery on privately owned land.

    But that could now be classed as burglary? Not that there would be any charges in that situation I mentioned but the idea that it could be if the land owner was a prick... ???

    yours legally confused

    Since Nov 2006 • 866 posts Report Reply

  • Rich of Observationz,

    What's the deal with people knocking on your front door

    Implied license, I think.

    Back in Wellington • Since Nov 2006 • 4421 posts Report Reply

  • Graeme Edgeler, in reply to Yamis,

    But that could now be classed as burglary?

    Your front lawn isn't an enclosed yard, so no.

    Enclosed yards are usually places like building sites, or semi-industrial places that get locked at the end of the day, if you can just stroll up a driveway, I don't believe it counts.

    Wellington, New Zealand • Since Nov 2006 • 2996 posts Report Reply

  • Yamis, in reply to Graeme Edgeler,

    What if there is a gate at the end of the drive? Should domestic properties close their gate and hang a sign saying "closed for soliciting, trespassers will be prosecuted for burglary". Quite tempting :)

    To get to our front door somebody has to walk up our drive, go up stairs, and cross our deck to our front door. There is a gate at the top of the stairs on to the deck, which is sometimes closed and sometimes not.

    It seems absurd that all that should make a difference.

    It's pretty bloody obvious when somebody walks on to private property and you shouldn't need to put a gate in to define the property. We've all probably walked past 10,000 houses in our lives and known exactly where the boundary is. The fact that a door isn't closed isn't an indication that the occupants allow you to enter.

    I'm going to hang a sign at the end of our drive saying "All those setting foot past this point will be charged with burglary".

    joking of course.

    But as an aside would a sign telling people it's private property and to bugger off constitute a 'gate/fence' ?

    Since Nov 2006 • 866 posts Report Reply

  • Yamis, in reply to Graeme Edgeler,

    Your front lawn isn't an enclosed yard, so no.
    Enclosed yards are usually places like building sites, or semi-industrial places that get locked at the end of the day, if you can just stroll up a driveway, I don't believe it counts.

    I've got another curly one for you Graeme.

    About 2 months ago I caught the neighbours kids throwing fruit from a tree on their property at my house and a neighbours house.

    Does a thrown object that crosses your property boundary, causing damage, equal a held crowbar that crosses a boundary smashing a window (for example)? In other words were they burgling my house?

    They threw it through trees and over a 5 foot fence so yes, it is an enclosed yard. They were lobbing them and showering on my neighbours roof as well.

    I wandered around to their property, and had to open a gate to gain access, and knocked on their front door where I had a chat with his grand mother. I couldn't find anything to steal, but I was wearing my op shop wolf's head so I ate her, hid in her wardrobe, and tried to get her grand son. His dad came at me with an ax, but I managed to slip over our fence and hid in our rabbit hutch until he left.

    Since Nov 2006 • 866 posts Report Reply

  • Graeme Edgeler, in reply to Yamis,

    I’ve got another curly one for you Graeme.

    About 2 months ago I caught the neighbours kids throwing fruit from a tree on their property at my house and a neighbours house.

    Does a thrown object that crosses your property boundary, causing damage, equal a held crowbar that crosses a boundary smashing a window (for example)? In other words were they burgling my house?

    Not curly at all. No: that's not an entry. Criminal damage or wilful damage perhaps, but no entry means no burglary.

    Wellington, New Zealand • Since Nov 2006 • 2996 posts Report Reply

  • DeepRed,

    Overseas, hackers are already threatened with longer sentences than rapists and armed robbers. I sometimes wonder if it's because rape and robbery barely affect the Inner Party/One Percenters, where hacking is one of the few things that genuinely make them brown their pants.

    The southernmost capital … • Since Nov 2006 • 4157 posts Report Reply

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