Dishonestly Taking or Using a Document (liability)

Question 1

1 - Takes OR Obtains Any Document - Section 228 (1) (a) *

Answer 1

Takes OR Obtains Any Document
Section 228 (1) (a) - Crimes Act 1961
7 years imprisonment

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

2 - Takes OR Obtains Any Document - section 228 (1) (b) *

Answer 2

Takes OR Obtains Any Document
Section 228 (1) (b) - Crimes Act 1961
7 years imprisonment

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 OBTAIN

Answer 3

Section 217 - Crimes Act 1961

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

Question 4

DEFINE PROPERTY

Answer 4

Section 2 - Crimes Act 1961

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

Define service

Answer 5

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

Question 6

DEFINITION OF 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

DEFINE VALUABLE CONSIDERATION

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”

Reference: Hayes v R

Question 8

Examples of valuable consideration

Answer 8

• 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

Define dishonestly

Answer 9

Section 217 - Crimes Act 1961

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

BELIEF CASE LAW

Answer 10

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 11

DEFINE CLAIM OF RIGHT

Answer 11

Section 2 - Crimes Act 1961

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

What is required for nature of belief

Answer 12

• Belief in a proprietary or possessory right in property
• Belief in rights to the property in relation to the offence
• Belief must be held at the time of the conduct
• Belief must be actually held by the defendant

Question 13

Define takes

Answer 13

Section 219(4) - Crimes Act 1961

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

Question 14

Examples of what can a document include under the definition?

Answer 14

• paper or material capable of being read
• photograph or photographic negative, plate, slide, film, or microfilm
• disc, tape, wire, sound track, or other material or device which info, sounds, or data are recorded or stored

Question 15

SHORT DEFINITION OF DOCUMENT CASE LAW

Answer 15

R V MISIC

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

Question 16

USES/ATTEMPTS TO USE CASE LAW

Answer 16

HAYES V R

“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.”

Question 17

Define attempts

Answer 17

Section 72 - Crimes Act 1961

(1) - Every one who, having an intent to commit an offence, does or omits an act for the purpose of accomplishing his object, is guilty of an attempt to commit the offence intended, whether in the circumstances it was possible to commit the offence or not.