Dishonestly Takes or Uses a Document

Question 1

Dishonestly Taking or Using a Document - Legislation

Answer 1

Section 228(1) Crimes Act 1961

Every one is liable to imprisonment for a term not exceeding 7 years who,

• with intent to obtain
• any property, service, pecuniary advantage, or valuable consideration,—

(1) (a) dishonestly and without claim of right,
- takes or obtains any document; or

(1) (b) dishonestly and without claim of right,
- uses or attempts to use any document.

Question 2

Obtain meaning

Answer 2

Section 217 - Obtain, in relation to any person, means obtain or retain for himself or herself or for any
other person

Question 3

Intent to obtain meaning

Answer 3

The defendant must intend to obtain by decetion

Question 4

Property definition

Answer 4

Property includes real and personal property, and any estate or interest in any real or
personal property, money, electricity, and any debt, and any thing in action, and any other
right or interest

Question 5

Service definition

Answer 5

“Service is limited to financial or economic value, and excludes privileges or benefits”.

Question 6

Pecuniary advantage Case Law

Answer 6

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

Question 7

Valuable consideration definition

Answer 7

“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 8

Dishonestly Definition

Answer 8

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.

Question 9

Dishonestly Case Law

Answer 9

HAYES V R - 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 10

Claim of right definition

Answer 10

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.

• May be based on ignorance of fact
• The belief must be “actually held” by the defendant - not necessarily reasonable

Question 11

Taking definition

Answer 11

For tangible property, theft is committed by a taking when the offender moves the property or causes it to be moved.

Question 12

Document definition

Answer 12

document means a document, or part of a document, in any form; and includes,
without limitation,—
(a) any paper or other material used for writing or printing that is marked with
matter capable of being read; or
(b) any photograph, or any photographic 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
(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; or
(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

Question 13

Document Case Law

Answer 13

R V MISIC - Essentially a document is a thing which provides evidence or information or
serves as a record.