Dishonestly Taking or Using a Document

Question 1

What are the section and elements of Dishonestly Taking or Using a Document [takes/obtains doc] (Important)

Answer 1

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

Question 2

What are the section and elements of Dishonestly Taking or Using a Document [uses/attempts to use doc]

(Important)

Answer 2

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

Question 3

Define dishonestly (Important)

Answer 3

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 4

What case law relates to dishonestly?

Answer 4

Hayes v R

Question 5

Outline Hayes v R’s finding on dishonestly (Important)

Answer 5

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 6

Define claim of right (Important)

Answer 6

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

Question 7

Does a claim of right need to apply to one’s own rights?

Answer 7

No a person can rely on a belief as to another’s legal rights

Question 8

Does a claim of right need to be reasonable? If not what

Answer 8

No, just actually held.

Question 9

Defines takes

Answer 9

Moves the property or causes it to be moved

Question 10

Define obtain (Important)

Answer 10

Obtain or retain for himself or herself or for any other person

Question 11

Define intent

Answer 11

There are two types of intent, intent to commit the act and intent to get a specific result

Question 12

What is the case law for intent?

Answer 12

R v Collister

Question 13

Outline R v Collister

Answer 13

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

Question 14

Define property (Important)

Answer 14

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 15

Define service (Important)

Answer 15

R v Cara: service is limited to financial or economic value, and excludes privileges or benefits.

Question 16

Define pecuniary advantage using case law (Important)

Answer 16

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.

Question 17

Define valuable consideration using case law (Important)

Answer 17

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.

Question 18

Define a document using case law (Important)

Answer 18

R v Misic: Essentially a document is a thing which provides evidence or information or serves as a record

Question 19

What is the s217 definition of a document (important)

Answer 19

• 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

Question 20

Define use

Answer 20

Use can include a single action or the continuing use of the document

Question 21

Define an attempt

Answer 21

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

Question 22

Discuss the case law for use/attempt’s to use (Important)

Answer 22

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.