Dishonestly Taking/Using A Document

Question 1

Taking or Obtaining a Document

Answer 1

TAKING OR OBTAINING A DOCUMENT - 228(1)(a) CA61

• With intent to obtain
• Any property, service, pecuniary advantage or valuable consideration
• Dishonestly
• Without claim of right
• Takes OR Obtains any document

Question 2

With Intent to Obtain

Answer 2

Defendant must intend to obtain or they must intend on obtaining by deception.

Question 3

Obtains

Answer 3

OBTAINS
In relation to any person, means obtain or retain for himself or for any other person (S217).

Good are obtained by a defendant if the good come under their control, does not need to be physical possession.

Question 4

Property

Answer 4

Includes real/personal property, any estate or any interest in any real or personal property, money, electricity, any debt, anything in action and any other right or interest (S2)

Question 5

Service

Answer 5

Not defined under CA61 however a service is limited to financial or economic value, excludes privileges and benefits.

Question 6

R V HAYES / Pecuniary Advantage

Answer 6

R V HAYES - PECUNIARY ADVANTAGE
Anything that enhances the accused financial position. It is that enhancement that constitutes the element of advantage.

I.e. defrauding ACC to continue claiming weekly comp when continuing to work somewhere else.

Question 7

Valuable Consideration

Answer 7

VALUABLE CONSIDERATION
The scope of a valuable consideration is greater than PA as PA is generally for financial gain, whereas valuable consideration can be anything that is capable of being valuable consideration whether its of a monetary kind or any other kind

I.e. monetary payment in return for goods, services, goods given in return for services or issuing a false invoice to receive payment for goods never supplied.

Question 8

Dishonestly

Answer 8

Done or omitted without a belief that there was expressed or implied consent/authority for the act/omission from a person entitled to give such consent or authority.

Question 9

R V HAYES / Dishonestly

Answer 9

R V HAYES - DISHONESTLY
The question is whether the belief is actually held, not whether that belief is reasonable. However, reasonableness maybe relevant as evidence on the issue of whether the belief was actually held.

Question 10

Without Claim of Right

Answer 10

WITHOUT CLAIM OF RIGHT
A belief at the time of the act in a proprietary or possessory right in relation to property the offence is alleged to have been committed against. However, belief may be based on ignorance or mistake.

Question 11

Claim of Rights Beliefs

Answer 11

CLAIM OF RIGHT - 4 NATURES OF BELIEF

• Belief in a proprietary or possessory right in the property to which the offence is taking place against (element of ownership).
• Belief must be about the rights to the property in relation to which the offence is alleged to have been committed.
• Belief must be held at the time of the conduct alleged to be an offence.
• Belief is actually held by the defendant. Is not required to be reasonably held and be based on mistake/ignorance.

Question 13

Takes

Answer 13

TAKES
To be read in conjunction of theft S219. For tangible property theft is committed by a taking when the offender moves the property/causes it to be moved. E.g. a credit card. Possession may be directly or indirectly obtained. Includes gaining possession with/without owners consent.

Question 14

Any Document

Answer 14

ANY DOCUMENT
Outlined in S217 - A document, or part of a document in any form, includes many forms.

I.e. Any paper or material used for writing or typing or printing on, any photo, any disc, tape, wire, any material which information is supplied on, includes eftpos/credit cards.

Question 15

R V MISIC / Document

Answer 15

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

Question 16

Uses or Attempts to Use a Document

Answer 16

USE OR ATTEMPTS TO USE A DOCUMENT - 228(1)(b) CA 61

• With intent to obtain (talk about intent/case law)
• Any property, service, pecuniary advantage or valuable consideration
• Dishonestly
• Without claim of right
• Uses OR Attempts to use
• Any document

Question 17

Uses

Answer 17

The prosecution must prove that the offender used or attempted to use the document with the intent to obtain the property, service etc.

Question 18

R V HAYES / Use

Answer 18

R V HAYES - USE
An unsuccessful use of a document is as much use as a successful one. Cannot equate a unsuccessful use with an attempted one. An attempt relates to the use not to the ultimate obtaining of a pecuniary advantage - not necessarily an element of this offence. Given use doesn’t have to be successful it might be difficult to differentiate between use and attempted use.

Question 19

Attempts

Answer 19

Everyone who having an intent to commit an offence, does or omits an act for the purpose of accomplishing their object is guilty of an attempt, whether possible or not in the circumstances.