Document Offences (Module) Flashcards
Offences
- Dishonestly Takes or Obtains any Document, S228(1)(a) CA61, 7 Years Imprisonment
- Dishonestly Uses or Attempts to Use any Document, S228(1)(b), 7 Years Imprisonment
Definition of Dishonestly
S217 CA61
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.
Dishonesty - Mistaken Belief
The objective facts of a particular case may be such that the jury can properly infer that the defendant has a dishonest mind unless he or she can raise a reasonable doubt on the basis of a relevant but mistaken belief.
That belief may be either:
- that the act or omission was, expressly or impliedly, consented to by a person entitled to give consent; or
- that the act or omission was authorised by a person to authorise it
R v Hayes (reasonable belief)
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 / nature of belief (first belief)
The belief must be a belief in a propriety or possessory right in property.
That is, there must be a belief that relates to an element of ownership of the property in question or a right to take or retain possession of it. Property may include intangible property that cannot be possessed but may be owned.
Claim of Right / nature of belief (second belief)
The belief must be about rights to the “property to which the offence is alleged to have been committed”.
A belief that the defendant had propriety or possessory rights in relation to other property and was therefore in some way justified in taking or dealing with the property in regard to which the offence was allegedly committed will not be relevant or sufficient.
Claim of Right / nature of belief (third belief)
The belief must be held at the time of the conduct alleged to constitute the offence.
Claim of Right / nature of belief (fourth belief)
The belief must be actually held by the defendant.
The belief is not required to be reasonable or be reasonably held and may be based on ignorance or mistake. However the reasonableness of the belief may be relevant in determining whether defendant’s assertion of the belief is credible.
Definition of Document - Long version
S217 CA61
Document means a document, or part of a document, in any form; and includes, without limitation -
(a) any paper or other material used for writing or printing that is marked with matter capable of being read; or
(b) any photograph, or any photographic negative, plate, slide, film, or microfilm, or any photostatic negative; or
(c) any disc, tape, wire, soundtrack, card or other material or device in or on which information, sounds, or other data are recorded, stored (whether temporary or permanently) or embodied so as to be capable, with or without the aid of some other equipment, of being reproduced; or
(d) any material by means of which information is supplied, whether directly or by means of any equipment, to any device used for recording or storing or processing information; or
(e) any material derived, whether directly or by means of any equipment, from equipment, from information recorded or stored or processed by any device used for recording or storing or processing information.
Uses or Attempts to Use - proof required
The prosecution must prove that the offender used (or attempted to use) the document with the intent to obtain the property, service, pecuniary advantage, or valuable consideration.
Attempts legislation
S72, CA61 - Definition of Attempts
(1) Everyone who, having an attempt 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.
