Dishonestly Taking or Using a Document

Question 1

1

Dishonestly Taking - Section and Penalty

Answer 1

Section 228(1)(a) Crimes Act 1961

7 years imprisonment

Question 2

2

Elements - Section 228(1)(a) Crimes Act 1961

Answer 2

1) With intent to obtain any Property, Service, Pecuniary Advantage or Valuable Consideration
2) Dishonestly
3) And Without Claim of Right
4) Takes or Obtains any document

Question 3

3

Intent to Obtain:

Answer 3

In a criminal law context there are two specific types of intention in an offence. Firstly there must be an intention to
commit the act and secondly an intention to get a specific result.

The defendant must intend to obtain, and he or she must intend to obtain by the deception.

Question 4

4

Obtain: (S217 CA61)

Answer 4

Obtain, in relation to any person, means obtain or retain for himself or herself or for any other person.

Question 5

5

Property: (S2 CA61)

Answer 5

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 6

6

‘Service’

Answer 6

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

Question 7

7

Hayes v R and Examples:

Answer 7

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.”

• Cash from stolen goods.
• Clothing or cash obtained by a credit or EFTPOS card.
• A discount (by using a student ID card).
• Avoiding or deferring payment of a debt.

Question 8

8
Valuable Consideration

Definition and Examples:

Answer 8

Anything capable of being valuable consideration, whether of a monetary kind or of any other kind; in short, money or
money’s worth.

• 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 9

9

Dishonestly: (S217 CA61)

Answer 9

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.

Question 10

10
Hayes v R

Dishonestly - Belief is held:

Answer 10

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 11

11

Claim of Right: (S2 CA61)

Answer 11

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 12

12

Takes: (S219(4) CA61)

Answer 12

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

Question 13

13

Document: (Legislation - Sec. 217 Crimes Act 1961)

Answer 13

A document, or part of a document in any form, and includes:
• Paper/material containing anything that can be read
• Photos, negatives and related items
• Discs, tapes, cards or other devices/equipment on which information is stored and can be reproduced

Question 14

14

R v Misic (Document)

Answer 14

“Essentially a document is a thing which provides evidence or information or serves as a record.”

Question 15

15

Dishonestly Uses or Attempts to use a Document - Section and Penalty

Answer 15

Section 228(1)(b) Crimes Act 1961

7 years imprisonment

Question 16

16.

Hayes v R (uses or attempts to use Document)

Answer 16

“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.”