Dishonestly Taking Or Using a Document

Question 1

Dishonestly taking or using a document S228(1) CA61

Answer 1

Everyone is liable to imprisonment for a term not exceeding 7 years who, with intend to obtain any property, service, pecuniary advantage or valuable consideration,

(a) dishonestly and without COR, takes or obtains any document, or
(b) dishonestly and without COR, uses or attempts to use any document

Question 2

s228(1)(a) CA61 Elements

Answer 2

Dishonestly 
Without claim of right 
Takes or obtains 
Any document 
With intent to obtain any property/ service/ pecuniary advantage/ valuable consideration

Question 3

s228(1)(b) CA61 Elements

Answer 3

Dishonestly 
Without claim of right 
Uses or attempts to use 
Any document 
With intent to obtain any property/ service/ pecuniary advantage/ valuable consideration

Question 4

Define “intent”

Answer 4

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

Question 5

Define “obtain” S217 CA61

Answer 5

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

Question 6

Define “property” S2 CA61

Answer 6

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

Question 7

Define “service”

Answer 7

Not defined in Crimes Act 1961.

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

Question 8

Define “pecuniary advantage” Hayes v R, (Eg. ACDC)

Answer 8

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

Eg. ACDC

• Avoiding or deferring payment of debt
• Cash from stolen goods
• Discount by using student ID
• Clothing or cash obtained by credit card

Question 9

Define “valuable consideration” Hayes v R (eg GIM)

Answer 9

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”

Eg. GIM

• Goods given in return for services provided
• Issuing false invoice to receive payment for goods never supplied
• Monetary payment in return for goods or services

Question 10

Define “dishonestly” S217 CA61

Answer 10

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 11

“Dishonestly” Hayes v R

Answer 11

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 12

Define “claim of right” S2 CA61

Answer 12

COR, in relation to any act, means I 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 13

Nature of belief required (4 beliefs)

Answer 13

1. Belief must be a belief in a proprietary/possessory right in property. Belief must relates to element of ownership or right to take/retain possession of property.
2. Belief must be about rights to the property in relation to which the offence is alleged to have been committed.
3. Belief must be held at the time of the conduct alleged to constitute the offence.
4. Belief must be actually held by the defendant. Belief is not required to be reasonable and may be based on ignorance or mistake, although reasonableness may be relevant in determining whether defendant’s assertion of belief is credible.

Question 14

Define “takes” s219(4) CA61

Answer 14

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

Question 15

Define “document” S217 CA61

Answer 15

Includes part of a doc in any form and include:

• Paper/material containing anything that can be read
• Photos/negatives and related items
• Discs/tapes/cards/other devices/equipment on which info is stored and can be reproduced

Question 16

“Document” R v Misic

Answer 16

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

Question 17

“Uses or attempts to use” Hayes v R

Answer 17

An unsuccessful use of a document is as much use as a successful one. An unsuccessful used must not be equated conceptually with an attempted one. The concept of attempt to 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.