Dishonestly Taking or Using a Document Flashcards
What are the section and elements of Dishonestly Taking or Using a Document [takes/obtains doc] (Important)
s228(1)(a) CA 1961
- With intent to obtain any property OR service OR pecuniary advantage OR valuable consideration
- Dishonestly
- Without claim of right
- Takes OR obtains
- Any document
What are the section and elements of Dishonestly Taking or Using a Document [uses/attempts to use doc]
(Important)
s228(1)(b) CA 1961
- With intent to obtain any property OR service OR pecuniary advantage OR valuable consideration
- Dishonestly
- Without claim of right
- Uses OR attempts to use
- Any document
Define dishonestly (Important)
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 case law relates to dishonestly?
Hayes v R
Outline Hayes v R’s finding on dishonestly (Important)
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
Define claim of right (Important)
A belief at the time of the act in a proprietary or possessory right in the 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 any matter of law other than the enactment against which the offence is alleged to have been committed
Does a claim of right need to apply to one’s own rights?
No a person can rely on a belief as to another’s legal rights
Does a claim of right need to be reasonable? If not what
No, just actually held.
Defines takes
Moves the property or causes it to be moved
Define obtain (Important)
Obtain or retain for himself or herself or for any other person
Define intent
There are two types of intent, intent to commit the act and intent to get a specific result
What is the case law for intent?
R v Collister
Outline R v Collister
Intent may be inferred by:
- the words and actions of the offender before, during or after the event.
- the surrounding circumstances
- the nature of the act itself
Define property (Important)
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.
Define service (Important)
R v Cara: service is limited to financial or economic value, and excludes privileges or benefits.
Define pecuniary advantage using case law (Important)
Hayes v R: A pecuniary advantage is anything that enhances the accused’s financial position. It is the enhancement which constitutes the element of advantage.
Define valuable consideration using case law (Important)
Hayes v R: Anything capable of being a valuable consideration, whether of a monetary kind or of any other kind. In short, money or money’s worth.
Define a document using case law (Important)
R v Misic: Essentially a document is a thing which provides evidence or information or serves as a record
What is the s217 definition of a document (important)
- any paper or other material used for writing or printing that is marked with matter capable of being read
- any photograph
- any disc, tape, card, or other material or device in or on which information, sounds, or other data are recorded, stored, or embodied
- any material by means of which information is supplied
- any material derived from information recorded or stored or processed by any device used for recording or storing or processing information
Define use
Use can include a single action or the continuing use of the document
Define an attempt
Having intent to commit an offence, does or omits an act for the purpose of accomplishing his object, whether in the circumstances it was possible to commit the offence or not
Discuss the case law for use/attempt’s to use (Important)
Hayes v R: An unsuccessful use of a document is as much a use as a successful one. An unsuccessful attempt must not be equated conceptually with an attempted one… Because the use does not have to be successful it may be difficult to draw a clear line between use and attempted use.
