CRIM PROPERTY OFFENCES

Davis v Police (2007)

Internet usage, measured in megabytes is property

• Distinguished from information conveyed in the data

Dixon v R

Digital files are property not simply information

• can be identified, has physical presence, and value

• fundamental feature = capable of being owned and transferred

R v Lakeman UK

distinguished Dixon - those charges were under computer offences

property is experiential - anything that can be descried as capable of being stolen

In game money is property because — monetary value, can be traded, rivalrous, can be dishonestly dealt with so possessor is deprived of its use and value.

Takamore v Clarke

No property in a dead body

Re Long

Theft of preserved organs
body parts can’t be transformed into something else by virtue of skill

Police v Williams

Defendants charged with theft and dealing with a dead body

No property in dead bodies so can’t pursue theft if its a dead body

R v Saxton

Dicta: property can be owned under Maori customary rights not extinguished by statute

Williams v Phillips

Defendants were rubbish collectors who were selling items they collected

For abandoned property - the local authority the defendants work for owns rubbish because that is who the original owners abandoned it to

Hibbert v McKiernan UK

Land owners can acquire a special interest in lost property on their land by showing intention to exclude interference/others from using it.

Having security measures = intention to exclude others from interfering

R v Ellerm

Land owners can acquire special property interest/possession of lost property on land by manifesting an intention to exercise actual control over land

Crown having stewardship of the lake through legislation = intention to exercise control = had a special property interest in abandoned rimu logs

R v Coslet

For taking s 219(4) - any slight moving of an item is enough for taking

R v Parker (1991)

For consent s219(3) - consent must be freely given not coerced

Police v Subritzky (1990)

Defendants child took a push chair from a shop without the defendants knowledge, she said she intended to return it but when she returned it, it was in a used condition

This is using or dealing because she used it in a way which was inconsistent with the rights of the owner

Using or dealing can be something passive, defendant doesn’t have to do something specific

R v Russell 1977

Defendant hired a car and painted over it

Not taking because he got consent but using or dealing because him painting over it was inconsistent with the rights of the owners

• shown by how his use of it was unauthorized under the terms of useP

Police v Moodley *(974)

Just looking at police manual found at bookstore and putting it away is not using/dealing in a way which was inconsistent with the rights of the owner

how to look at using/dealing under theft (s 219(1)(b))

the same as conversion - using/dealing with property inconsistently with the rights of the owner

Broom v Police (1994)

Defendant agreed to return the victims lost bike which the defendant found on the black market for reward money in pieces

The way he gave it back wasn’t using/dealing with the bike in a way inconsistent with the rights of the owner because the owner agreed to getting it back in pieces.

Wilkinson (1990)

How EFTs work

Money held in a back is a chose in action representing the customers right to get money from the bank

With EFTs, the back (with the payers consent) extinguishes/reduces the chose in action of the payer and creates/increases the chose in action of the payee.

Gao, Hurring

Mistaken EFT by bank was treated as theft even though it was technically done with the banks consent

Illich v R (1987)

Fundamental mistakes which vitiate consent to passing ownership

• mistake about the identity of the transferee

• mistake about the identity of the thing handed over

• mistake as to the quantity of the thing handed over (except money provided the transaction is good faith and for good value)

Brown and Edney v Police (1984)

for without claim of right

Supports s 2 definition of claim of right - belief in proprietary right to the property can be based on mistake of law (but not law of theft)

Burt v Police (2012)

A claim of right

• a belief in a proprietary/possessory right in property

• belief is about the rights to the property in relation to which the offence is committed

• belief is held at the time of the offence

• belief is genuinely held - doesn’t have to be reasonable

Police v Dronjak (1990)

Defendant presented car stereo with lower price to checkout and was charged the wrong price

handing over possession for theft

He was given possession with consent and the owner intended for the title to pass to him

• a mistake as to the value of the thing handed over is not a fundamental mistake vitiating consent

false representation for obtaining by deception

false representation = conduct gives rise to representation and defendant doesn’t refute it

R v Morunga (2010)

Defendant took cash from gambling machine and fed it back to the machine when gambling

No intention to permanently deprive the owner of the money because it is exactly the same money that was fed back to the machine

• taking money and giving back different money = intent to permanently deprive

R v Hare (1910)

taking an item and promising to give it back under conditions manifestly without the right to do so is theft

R v Tallentire (2012)

SC endorsed AR and MR elements of theft in a special relationship

R v Sullivan (2014)

For control over property

Must assess who has actual and practical control over property - shouldn’t base on formal roles like director, should look at actual power dynamics of the company

R v Scale (1977)

Defendant got check in error and used it

Debt obligations are not a duty to account or deal, there must be a fiduciary element attached/must be holding the property in trust

R v Prestney (2003)

Defendant received money on loan arrangements under a oral agreement that hes going to invest in Korean stocks

Oral agreement of specific conditions is enough for a duty to account or deal - doesn’t matter if hes receiving it on loan

Difference between

• getting ownership with beneficial interests subject to contractual obligations = no duty to account

• getting ownership without beneficial interests = duty to account

R v Kirk (1901)

Defendants who receive money from customers on behalf of a business are expected to account for what they receive

R v Prior (2002)

Company directors had no duty to account for money even though they had a fiduciary duty to the company because there was no specific terms attached to the money (no earmarking)

Nisbet v R

combination of facts is sufficient for duty to account (shareholder agreement and oral agreement)

Whale v R

Duty to account/deal requires obligations with specific terms (no differences of opinion). Generic obligations are not sufficient

Hayes v R (2008)

obtaining by deception - dishonestly taking or using a document

essence of the offence is the dishonest conduct in seeking to obtain a benefit or advantage (even when the defendant has entitlement)

Defendant doesn’t have to personally receive the benefit

R v O’Brien

Defendant applied for a gambling license by falsely representing a certain person wasn’t involved in the company.

For false representation

a false representation must be a material particular = something which could have made a difference to the victims decision

For strategem, device, or trick

Hiding the persons involvement in the company = ongoing strategem

For causation

Victim doesn’t have to fully believe the misrepresentation

Morley v R (2009)

For false representation

false representation must relate to a statement of existing fact not future intention

a false representation can be express or implied

For deception causing a loss/benefit

test = “operative and material inducement”

• no need to be the sole cause

• can have multiple misrepresentations from multiple people

Loss must be a direct loss, not the loss of bargain or expectation loss

Lang v Police

Got donations to alleviate poverty, didn’t say his own poverty

Half truths can be false representations

Hunter v Police (2014)

No causation if the victim acted without reference to the deception/would have made the decision anyways

R v Xu (2018)

Automated machines can be deceived if theres any human decision making involved

Li v R (2016)

For s 240(1)(a) - obtaining a benefit

benefit - good or advantage, no need for financial benefit

• a certificate is a benefit

R v Cai (2011)

for s 240(1)(d) - causing a loss

temporary loss is sufficient

Police v Batista-Paulger

An enclosed yard doesn’t have to be completely closed - just needs to have a sufficient barrier to create a private space

R v Patterson

Entry through an innocent agent is sufficient for burglary

Police v Barwell

For authority to enter

There is an implied authority to enter stores: retailers give a “general invitation” to the public to enter and assumes the risk that people can be there for illegitimate purposes

Belief based on a mistake of law does not prevent a burglary conviction

Potaka-Kiu v Police

A tresspass notive revokes a customers general invitation to enter- business can revoke implied authority to enter

Keen v R

If issue of authority is raised look at

• what is the authority asserted

• what is the extent of that authority

• was it exceeded

AGs Reference (No 1 and 2 of 1979)

For intention to commit an imprisonable offence

conditional intent is sufficient

R v Kirby (2013)

For knowledge

Must know entry was unauthorised or be reckless as to the lack of authority 

R v Hay (1987)

Must have the intention to commit the relevant crime at the time of entering or remaining