Takes/Uses a Document

Question 1

Ingredients of dishonesty taking/uses a document

Answer 1

S228 Crimes Act 1961 - 7yrs Imprisonment
With intent to obtain any property, service, pecuniary advantage or valuable consideration (a) dishonestly & without claim of right takes or obtains any document (b) dishonestly & without claim of right uses or attempts to use any document

Question 2

Define Obtain

Answer 2

S217 CA 1961 - Obtain means obtain or retain for himself or herself or any other person

Question 3

Define Property

Answer 3

S2 CA 1961 - includes and real and personal property and any estate or interest in any real or personal property, money, electricity and any debt and anything in action and any other right or interest

Question 4

Define Service

Answer 4

R v Cara

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

Question 5

Define Pecuniary Adavantage

Answer 5

Hayes v R
A pecuniary advantage is anything that enhances the accused’s financial position. It is that enhancement which constitutes the element of enhancement

Question 6

Define Valuable Consideration

Answer 6

Hayes v R
A valuable consideration is anything capable of being valuable consideration whether of a monetary kind or any other kind. In short money or money’s worth

Question 7

Define Dishonesty

Answer 7

S217 CA 1961
Dishonesty 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

Question 8

What does Hayes v R state in relation to dishonesty?

Answer 8

Hayes v R
The question is whether the belief is actually he’d not whether that belief is reasonable. However reasonableness may be relevant as evidence on the issue of whether the belief was actually held.

Question 9

Define claim of right

Answer 9

S217 CA 1961
Claim or right in relation to any act, means a belief at the time of the act in a proprietary or possessory right in property to which the offence is alleged to have been committed, although that belief may be based on ignorance or mistake of fact or any matter of law other that the enactment against which the offence is alleged to have been committed

Question 10

Define Taking

Answer 10

S219(4) CA 1961

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

Question 11

Define Document

Answer 11

S217 CA 1961
Document 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 any device/equipment on which information is stored and can be reproduced

Question 12

What is the case law around defining a document?

Answer 12

R v Misic

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

Question 13

What must the prosecution prove in regards to uses/attempts to use a document?

Answer 13

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

Question 14

What is the case law pertaining to Uses/ Attempts to Use a document?

Answer 14

Hayes v R
An unsuccessful use of a document is as much use as a successful one…because the use does not have to be successful it may be difficult to draw a clear line between use and attempted use