Liabilities 228(1) (a) & (b)

Question 1

What is the liability for Takes or Obtains a document Section 228(1)(a)?

Answer 1

1. With intent to obtain
2. Any:
   - Property
   - Service
   - Pecuniary Advantage
   - Valuable Consideration
3. Dishonestly
4. Without Claim of right
5. Takes OR Obtains
6. Any Document

Question 2

What is the liability for uses or attempts to use a document Section 228(1)(b)?

Answer 2

1. With intent to obtain
2. Any:
   - Property
   - Service
   - Pecuniary Advantage
   - Valuable Consideration
3. Dishonestly
4. Without Claim of right
5. Uses OR attempts to use
6. Any Document

Question 3

What is intent with respect to deception?

Answer 3

Intent - A person does something “intentionally” if they mean to do it; They desire a specific result and act with the aim or purpose of achieving it.

In respect of deception, the Defendant must intend to obtain, and they must intend to obtain by deception.

Question 4

What is the definition of Obtain Section 217 CA61?

Answer 4

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

Question 5

What is the definition of property Section 2 CA61?

Answer 5

Includes andy real or 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 6

What is the definition of Service?

Answer 6

Service is not defined in the Crimes Act.

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

Question 7

What is the case law that defines pecuniary advantage?

Answer 7

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 8

Explain valuable consideration

Answer 8

The scope of valuable consideration is wider than pecuniary advantage.

“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”

Question 9

What is the definition of dishonesty according to Section 217 CA61?

Answer 9

Dishonesty, in relation to an act or mossission, 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 consent or authority.

Question 10

What is the relevant case law relating to dishonesty and deception?

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

What is the definition of claim of right in Section 2 CA61?

Answer 11

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 other matter of law other than the enactment against which the offence is alleged to have been committed.

Question 12

Explain the meaning of takes, and where is the interpretation taken from?

Answer 12

Taking is not specifically defined by statute. For the purpose of deception, in conjunction with the definition of theft contained within S219CA61:

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

Question 13

What is the definition of Document
Section 217 (a)

Answer 13

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

Question 14

What is the definition of Document
Section 217 (b)

Answer 14

Means a document, or part of a document, in any form, and includes, without limitation;

(b) Any photograph, or any photograph negative, plate, slide, film, or microfilm, or any photostatic negative

Question 15

What is the definition of Document
Section 217 (c)

Answer 15

Means a document, or part of a document, in any form, and includes, without limitation;

(c) Any disc, tape, wire, sound track, card, or other material or device in or on which information, sounds, or other data are recorded, stored (whether temporarily or permanently), or embodied so as to be capable, without the aid of some other equipment, of being reproduced;

Question 16

What is the definition of Document
Section 217 (d)

Answer 16

Means a document, or part of a document, in any form, and includes, without limitation;

(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

Question 17

What is the definition of Document
Section 217 (e)

Answer 17

Means a document, or part of a document, in any form, and includes, without limitation;

(e) Any material derived, whether directly or by means of any equipment, from information recorded or stored or processed by any device used for recording or storing or processing information

Question 18

What is the relevant case law that summarises what a document is?

Answer 18

R v Misic

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

Question 19

What must the prosecution prove for uses or attempts to use?

Answer 19

The prosecution must prove the offender used or attempted to use the document with intent to obtain the property, service, valuable consideration, pecuniary advantage

Question 20

What is the relevant case law relating to using and attempting to use a document?

Answer 20

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 21

Section 72 Crimes Act 1961

Definition of attempts: Section 72(1)

Answer 21

(1) Everyone 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