Definitions 1

Question 1

Obtain

Intent to Obtain

Answer 1

S 217, Crimes Act 1961: “Obtain, in relation to any person, means obtain or retain for himself/herself or for any other person.”

The defendant must intend to obtain and he/she must intend to obtain by deception.

Question 2

Property

Answer 2

S 2, Crimes Act 1961

“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.”

Question 3

Service

Answer 3

Not defined in Crimes Act.

R v Cara: “Service is limited to financial or economic value and excludes privileges or benefits.”

Question 4

Pecuniary Advantage

as per Hayes v R [2008]

Answer 4

“A pecuniary advantage is anything that enhances the accused’s financial position. It is that enhancement which constitutes the element of advantage.

Question 5

Valuable Consideration (as per Hayes v R)

Answer 5

In Hayes v R, the Court found that a valuable consideration is “anything capable of being valuable consideration, whether of a monetary kind or of any other kind; in short, money or money’s worth.”

For example:

• 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 6

Dishonestly

As per Crimes Act
As per Hayes v R

Answer 6

S 217, Crimes Act 1961

“Dishonestly, in relation to an act or omission, means 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.”

Hayes v R [2008] : “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 7

Without Claim of Right

Answer 7

S 2, Crimes Act 1961

“Claim of right, in relation to any act, 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, although that belief may be based on IGNORANCE or MISTAKE of FACT or of ANY MATTER of LAW other than the enactment against which the offence is alleged to have been committed.”

Question 8

Nature of belief required

Answer 8

First, there must be a belief in a proprietary or possessory right in property, i.e. a belief that relates to an element of ownership of the property in question or a right to take possession of it.

Second, the belief must be about rights in relation to the property in relation to which the offence is alleged to have been committed.

Third, the belief must be held at the time of the conduct alleged to constitute the offence.

Fourth, the belief must be ACTUALLY HELD by the defendant. Not required to be reasonable or reasonably held and may be based on ignorance or mistake. However, the reasonableness of the belief may be relevant in determining whether the defendant’s assertion of the belief is credible.

Question 9

Takes

Answer 9

Not specifically defined, but can be read in conjunction with the definition of theft in S 219, Crimes Act 1961:

“For tangible property, theft is committed by TAKING when the offender moves the property or cause it to be moved.”

Question 10

Document

As per Crimes Act
As per R v MISIC [2001]

Answer 10

S 217, Crimes Act 1961:

“Document means a document, or part of a document, in any form; and includes, without limitation, -

(a) any PAPER/material used for writing or printing that is marked with matter capable of being read.
(b) any PHOTOGRAPH, or any photographic negative, plate, slide, film, or microfilm, or any photostatic negative.
(c) any DISC, tape, wire, sound track, card or other material or device in or on which information, sounds or other data are recorded, stored (whether temporarily or permanently), or embodied so as to be capable, with or without the aid of some other equipment, of being reproduced.
(d) any MATERIAL by means of which information is supplied, whether directly or by means of any equipment, to any device used for recording or storing or processing information.
(e) any MATERIAL DERIVED, whether directly or by means of any equipment, from information recorded or stored or processed by any device used for recording or storing or processing information.”

R v MISIC [2008]: “Essentially a document is a thing which provides evidence or information or serves as a record.”