S240(1)(c) - Altering Documents Capable of Being Used to Derive a Pecuniary Advantage

Question 1

Altering documents capable of being used to derive a pecuniary advantage

Section and Penalty

Answer 1

S240(1)(c) CA61

Exceeds $1000 - 7 Years Imp
$500 to $1000 - 1 Year Imp
Under $500 - 3 Months Imp

Question 2

240(1)(c) - Elements

Answer 2

1. By deception and without claim of right
2. Induces or causes any other person to deliver over, execute, make, accept, endorse, destroy or alter
3. Any document or thing capable of being used to derive a pecuniary advantage.

Question 3

Deception

Legislation

Answer 3

S240(2) CA61

Deception means:

(a) a false representation, whether oral, documentary, or by conduct, where the person making the representation intends to deceive any other person and -
(i) knows that it is false in a material particular; or
(ii) is reckless as to whether it is false in a material particular; or

(b) an omission to disclose a material particular, with intent to deceive any person, in circumstances where there is a duty to disclose it; or
(c) a fraudulent device, trick, or stratagem used with intent to deceive any person.

Question 4

R v Morley - Intent to Deceive

Intent and Collister

Answer 4

An intention to deceive requires that the deception is practised in order to deceive the affected party. Purposeful intent is necessary and must exist at the time of the deception.

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.

(R v Collister)

Question 5

R v Morley

Representations

Answer 5

Representations must relate to a statement of existing fact, rather than a statement of future intention

Question 6

Obtain

Answer 6

CA61; S217

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

Question 7

Claim of Right

Answer 7

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.

Question 8

Induces

Definition

Answer 8

To persuade, bring about or give rise to.

Question 9

Proof of the inducement

Answer 9

R v Laverty: It is necessary for the prosecution to prove that the person parting with the property was induced to do so by the false representation made.

In practice the victim of the deception is usually questioned to elicit answers proving:

• that the false representation was believed, and
• that it was the consequence of that belief that the victim parted with his or her money.

(Liability for attempted obtaining by deception may be disclosed).

Question 10

R v Laverty

Answer 10

R v Laverty:

It is necessary for the prosecution to prove that the person parting with the property was induced to do so by the false representation made.

Question 11

How can it be shown that the victim of a deception has been deceived?

Answer 11

In practice the victim of the deception is usually questioned to elicit answers proving:

• that the false representation was believed, and
• that it was the consequence of that belief that the victim parted with his or her money.

(Liability for attempted obtaining by deception may be disclosed).

Question 12

Causes

Answer 12

The accused must cause the loss.

Question 13

Deliver over, execute, make, accept, endorse, destroy or alter

Answer 13

Deliver over:
To surrender up someone or something

Execute:
To put a course of action into effect

Make:
To create or prepare something by combining materials or putting parts together

Accept
To receive something

Endorse
To write or sign on a document

Destroy
To end the existence of

Alter
To change in character or composition, typically in a comparatively small but significant way.

Question 14

Document

Legislation

Answer 14

CA61; S217

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, 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, 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 information recorded or stored or processed by any device used for recording or storing or processing information.

Question 15

R v Misic

Answer 15

• *R v Misic:**
• *“Essentially a document is a thing which provides evidence or information or serves as a record.”**

Question 16

Thing

Answer 16

Simester and Brookbanks: The ‘thing’ must be tangible. It must be capable of being used to derive a pecuniary advantage.

Question 17

What definitions and/or case laws should be included in your discussion of the liability of:

• 240(1)(c) - altering documents capable of deriving pecuniary advantage

Answer 17

Definition of intent: 2 specific types of intent; the defendant must intend to obtain; and he or she must intend to obtain by the deception; there must be an intent to deceive; R v Collister;

Definition of deception: CA61; S240(2); R v Morley; R v Mallet; S&B

Definition of WCOR: CA61, S2;

Definition of induces: to persuade, bring about, or give rise to; R v Laverty - necessary to prove that the person parting with the property was induced to do so by the false representation made.

Definition of causes: - the accused must cause the loss.

Definition of a person/victim: person - S2 CA61 as proven by CE or JN; victim - S4 VRA 2002;

Definitions of:
Deliver over:
To surrender up someone or something;
Execute:
To put a course of action into effect;
Make:
To create or prepare something by combining materials or putting parts together;
Accept
To receive something;
Endorse
To write or sign on a document;
Destroy
To end the existence of;
Alter
To change in character or composition, typically in a comparatively small but significant way;

Definition of a document: CA61, S217; R v Misic; - “Essentially a document is a thing which provides evidence or information or serves as a record.”

Definition of a pecuniary advantage: 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.”

Definition of a person/victim: person - S2 CA61 as proven by CE or JN; victim - S4 VRA 2002;

Question 18

240(1A) - legislation

Answer 18

1. Without reasonable excuse
2. Sells, transfers, or otherwise makes available
3. Any document or thing capable of being used to derive a pecuniary advantage knowing that
4. By deception and without claim of right
5. The document or thing was, or was caused to be, delivered, executed, made, accepted, endorsed, or altered.