Dishonestly Uses or Attempts to Use a Document Flashcards Preview

CIB 008 - Deception > Dishonestly Uses or Attempts to Use a Document > Flashcards

Flashcards in Dishonestly Uses or Attempts to Use a Document Deck (15)
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1

Section and Penalty

Section 228(1)(b) Crimes Act 1961

7 years imprisonment

2

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

3

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.

4

Obtain

S217 CA61

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

5

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.

6

Service

R v Cara

R v Cara

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

7

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.

8

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

9

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.

10

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.

11

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.

12

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.”

13

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.

14

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

15

R v Misic

Document

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