1. Deception Offences - Take/Use Document Flashcards
What is the legislation for Dishonestly taking or using a document, s228(1)?
- Everyone is liable to imprisonment for a term not exceeding 7 years who, with intent to obtain any property, service, pecuniary advantage, or valuable consideration, -
a. Dishonestly and without claim of right, takes or obtains any document; or
b. Dishonestly and without claim of right, uses or attempts to use any document.
What are the elements of s228(1)(a)?
- With intent to obtain any property, service, pecuniary advantage, or valuable consideration
- Dishonestly
- Without claim of right
- Takes or obtains any document
What are the elements of s228(1)(b)?
- With intent to obtain any property, service, pecuniary advantage, or valuable consideration
- Dishonestly
- Without claim of right
- Uses or attempts to use any document
What is the definition of obtain?
To obtain or retain for themselves or any other person.
What is the definition of property?
includes real and personal property, and any estate or interest in any real or personal property, money, electricity and any debt, and anything in action, and any other right or interest
What is the definition of service and examples?
is limited to financial or economic value, and excludes privileges or benefits.
Examples:
- a restaurant meal
- use of a plumber or mechanic
What is the case law regarding pecuniary advantage?
A pecuniary advantage is anything that enhances the accused’s financial position. It is that enhancement which constitutes the element of advantage.
(Hayes v R)
What is the definition of dishonestly?
An act or omission 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.
What is the case law regarding dishonestly and belief?
The question is whether the belief was actually held, not whether that belief is reasonable. However, the reasonableness may be relevant as evidence on the issue of whether the belief was actually held.
(R v Hayes)
What is the definition of claim of right?
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.
What is included within the definition of a document?
Means a document, or part of a document in any form, including:
a) paper/material containing anything that can be read
b) Photos, negatives and related items
c) Discs, tapes, cards or other devices/equipment on which information is stored and can be reproduced
What is the case law regarding a document?
Essentially a document is a thing which provides evidence or information or serves as a record.
(R v Misic)
What does use encompass?
Can include a single action or the continuing use of a document
What is the case law regarding uses?
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 element of the offence. Because the use does not have to be successful it may be difficult to draw a clear line between use and attempted use.
(Hayes v R)
What is the legislation regarding attempts (s72)?
- Everyone who, having an intent to commit an offence, does or omits an act for the purpose of accomplishing his object, is guilty of an attempt to commit the offence intended, whether in the circumstances it was possible to commit the offence or not.
- The question whether an act done or omitted with intent to commit an offence is or is not only preparation for the commission of that offence, and too remote to constitute and attempt to commit it, is a question of law.
- An act done or omitted with intent to commit an offence may constitute and attempt is immediately or proximately connected with the intended offence, whether or not there was any act unequivocally showing the intent to commit that offence.
