Dishonestly Uses or Attempts to Use a Document Flashcards
Section and Penalty
Section 228(1)(b) Crimes Act 1961 7 years imprisonment
Elements
1) With intent to obtain any Property, Service, Pecuniary Advantage or Valuable Consideration 2) Dishonestly 3) And Without Claim of Right 4) Uses or Attempts to use any document
Intent Intent to Obtain
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.
Obtain
S217 CA61 Obtain, in relation to any person, means obtain or retain for himself or herself or for any other person
Property
S2 CA61 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.
Service R v Cara
R v Cara Service is limited to financial or economic value, and excludes privileges or benefits.
Pecuniary Advantage Hayes v R and Examples
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.
Valuable Consideration Definition and Examples
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
Dishonestly
S217 CA61 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.
Hayes v R Dishonestly - Belief is held
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.
Claim of Right
S2 CA61 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.
Uses or Attempts to Use Hayes v R
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 ingredient 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.”
Uses or attempts to Use
Prosecution must prove the offender uses or attempted to use the document with intent to obtain….
“Use” can include a single action, such as the handing over of a document to its intended recipient or the continuing uses of a document
Attempt Legislation
S72(1) CA61 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.
Document Legislation
Sec. 217 Crimes Act 1961 Includes 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
