Crimes Act 1961

For all its benefits, technology does have a dark side – electronic crime.  As traditional means of committing theft and fraud has waned, incidents of electronic crime has continued to rise.

In 2003, the Crimes Amendment Act introduced four new sections relating to “Crimes involving computers”. Since then, New Zealand Courts have heard numerous cases involving crimes being prosecuted under these sections. Notably, one high profile case was heard in the Supreme Court.

While a lot of media attention is focused on cyber threats posed by hackers, it is often employees or third parties who dishonestly access, copy or damage data. Organisations who believe they have suffered from a computer crime may pursue one of the following courses of action under the Crimes Act, we have included a summary of the relevant sections below:

Section 249 – Accessing computer system for dishonest purpose

Everyone is liable to imprisonment who accesses any computer system and obtains any property or advantage; or causes loss to any other person.

Section 250 – Damaging or interfering with computer system

Everyone is liable to imprisonment who intentionally or recklessly destroys, damages, or alters any computer system if they know or ought to know that danger to life is likely to result. This extends to any person who damages or modifies any data or software in any computer system.

Section 251 – Making, selling, or distributing or possessing software for committing crime

Everyone is liable to imprisonment who sells or supplies any software or other information that would enable another person to access a computer system without authorisation, knowing that it could be used to commit an offence.

Section 252 – Accessing computer system without authorisation

Everyone is liable to imprisonment who intentionally accesses any computer system without authorisation, knowing that they are not authorised to access that computer system, or being reckless as to whether or not they are authorised to access that computer system.

Search and Surveillance Act 2012

Evidence of offending under the above sections of the Crimes Act may in certain circumstances, be only located in remote locations, commonly referred to as ‘the Cloud’.

Remote access is administered under the Search and Surveillance Act, which governs search warrants and surveillance device warrants. Specifically, every person executing a search warrant authorising a remote access search may use reasonable measures to gain access to the thing to be searched and if any intangible material in the thing is the subject of the search or may otherwise be lawfully seized, copy that material (including by means of previewing, cloning, or other forensic methods).

Expert Witnesses

In New Zealand Courts, Computer Crime matters will often require an expert witness to give evidence. Such experts are bound by Schedule 4 of the High Court Rules, ‘Code of Conduct for Expert Witnesses’. An expert has a duty to assist the court impartially on relevant matters within the expert’s area of expertise and is not an advocate for the party who engages the witness.