LAW201 PROPERTY OFFENSES FLASHCARDS

Actus reus elements of theft

1. The thing must be “property” under s 2.

2. Section 218: Ownership

3. Taken OR Used / Dealt with - s219

A taking without consent: s219(3)

Mens rea elements of theft

1. Intention and dishonesty s217

2. With intent to deprive the owner permanently s219(2)

Davies v Police

Internet usage, measured in megabytes, is property (Employee could not use the internet for personal reasons) 

Dixon v R

Digital file (CCTV bar footage) was held to be property. 

• Fundamental feature = Capable of being owned & transferred 

•  SC: Not just pure information (if so, likely not property), identified, has physical presence, value & transferable to others

• S 230 criminalises taking identifiable commercial info, ‘trade secrets’ (has value & can be transferred) 

R v Lakeman

Hacked 68 Runescape accounts, stole their gold and solf it for bitcoin ad fiat currency. 

• Court distinguished Dixon as “unhelpful”

• As property is anything that can, as a matter of normal use of language, be described as capable of being stolen, the gold fit this criteria. 

Takamore v Clarke

No property in a dead body

Re Long

Unlikely to follow international law on recognising a dead body as property 

Police v Williams

(2 detached toes): PO abandoned theft charge, so left Undecided (purusued improper dealing w dead body via s150). 

Saxton

Customary rights not extinguished by statute can be protected by theft (taking of greenstones not authorised by iwi)

Williams v Phillips

Court held that the local authority that the defendants work for owns rubbish [though the original owner abandoned it] 

Hibbert v McKiernan (UK)

Property owner acquires ownership of lost P by showing “special interest to exclude interference” + intent

R v Ellerm

Applied Hibbert (owner/occupier who manifests intent to exercise actual control over land has ‘special property’) 

Police v Subritzky

• Not necessary to point to a particular conduct, some act (ie passive continuing usage) suffices 

•  Not returning toy taken by the child = dealing inconsistent with owner’s rights + D did not have ownership 

R v Russell

D acted contrary to an agreement with the owner (hired air compressor lawfully but painted it green & did not return) 

Broom v Police

NOT using/dealing as owner CONSENTED to defendant’s proposal ( return bike in pieces for full reward money)

Police v Moodley

It was not a conversion because no using or dealing when sleeping in book store and throwing police manual in a desk when cleaning.

R v Coslet

• Slightest moving suffice (currants moved whilst D was driving) / picket pocketer who failed b. Intangible property: 

• For Electronic Transfers / EFTPOS, nothing passes between the parties, so no taking = Wilkinson. One chose in action is extinguished by the bank & another is created

Wilkinson

For Electronic Transfers / EFTPOS, nothing passes between the parties, so no taking = Wilkinson. One chose in action is extinguished by the bank & another is created

Parker

Consent must be freely given

Illich v R (AU)

Was applied in Police v Dronjak: However, mistake will vitiate consent when it relates to: 

a) The identity of transferee 

a) The identity of the thing handed over 

b) The Quantity: For money (fungible), mistake will not vitiate consent if the transaction was made in bona fide & for good value i) Illich: If the transferee realises at the time (ie sees wrong counting of $) but says nothing = Likely theft

Leason v AG

he older law of Leason v AG only required a belief that the act is lawful, but the law is now more restrictive, as per Police v Minhinnick.

Police v Minhinnick

Honesty of purpose gave colour of right, but NOW = Narrower, may consider customary rights as source instead 

Police v Moodley defense

 Bona fide belief that goods are abandoned = defence to theft 

R Langham (AU)

No conviction as he had a claim of right in relation to the demanding of the money (can apply for other offences) 

Burt v Police

Requires belief in possessory right (right of ownership), about the property at issue, genuinely held at the time (X reasonable).

R v Morunga

Returned the exact same coins back to the owner (no forced substitution), so not liable for theft (fed coins thru the machine)

R v Hare

Conditional intent to permanently deprive suffices

Theft by person in special relationships (s220) affirmed by Tallentire AR elements?

1. Received or had possession or control over property

2. There were requirements to account or deal

3. The defendant accounted or dealt with the property or its proceeds otherwise than in accordance with those requirements

1. Received or had possession or control over property case:

R v Sullivan: Assesses who is making decisions & the practical reality of who controls the company’s property. “Pierce the corporate veil” - Mere office as director is insufficient to establish actual control; a sophisticated analysis is required

R v Scale

Requires more than a simple debt situation. (received a cheque written in error; no earmarking; simply a mistake / civil debt)

R v Prestney

defendant might have legal ownership but is not the beneficial owner. 

• Investor’s oral promise of investing in Korean stocks sufficient (fiduciary duty, broad class is enough; ‘invest or returned’) 

R v Kirk

• Received money from customers on behalf of another business - expected to account for what he received. 

R v Norris

Reached the opposite conclusion as Kirk HOWEVER was argued incorrectly so use Kirk

R v Prior

Director had no obligation to account even though there was a fiduciary duty with the company [No earmarking] circumstances 

Tallentire v R

Company’s debenture trust deed placed restrictions on the manner directors could deal with company funds. 

R v Nisbet

Combination of factors could be sufficient (broad shareholder agreement & oral agreement) 

Whale v R

distinguishes generic obligations & specific conditions. No earmark when general obligations are imposed (ie be prudent)

McGurk v R

defendant cannot escape personal liability for theft by a person in a special relationship (s 220) by hiding behind a corporate veil, meaning you should apply it whenever a director, employee, or venue manager intentionally mixes restricted, designated funds into a general company account

S220 theft by persons in special relationships MR

1. The defendant knew of the requirements to account or deal with the property or its proceeds

2. The defendant intentionally dealt with the property or any proceeds otherwise than in accordance with those requirements

Tallentire: s220 MR2

Deliberate dealing (not a mistake) + Deliberate Breach (not made out if innocently forgotten, but yes if wilfully blind) - MR made out even if D intended to repay the property

s240 obtaining by deception AR elements

(1) The defendant engages in deception

(2) Causation: Deception must be an operative and material inducement

R v O’brien

False representation - must be materially false

Carlos v R

• Crown must point to the specific representation made and prove it is false -  Exaggeration may not suffice;

Morley v R

Relate to a statement of existing fact (rather than future intention)

Silence is not representation except in these instances:S 240(2)(a):

● (1) Conduct gives rise to a representation, and D fails to refute representation: Police v Dronjak (price tag)

● (2) Half Truths: Lang v Police (insinuating donations will be given to others in poverty, not D himself)

● (3) Silence in the Course of Dealing: R v Silverman (1988)

Police v Dronjak

Conduct gives rise to a representation, and D fails to refute representation: price tag

Lang v Police

Half truths; (insinuating donations will be given to others in poverty, not D himself)

R v Silverman

Silence in the course of dealing

Chen v R

Fiduciary relationships might carry obligations to make disclosures in certain circumstances s240(2)(b)

CASE TO USE FOR S240(2)(C)

O’Brien - fale representation

Morley (for AR2)

The deception must be “operative” and “material inducement” (but need not be the sole cause) 

Hunter. vPolice

Using a dale name in an app makes no difference when it comes to acting without reference

R v Xu

Automated machines cannot be decieved HOWEVER in this case, where there is human intervention (loan application) and the outcome is not pre-determined, there can be a causal link 

Morley: s240(1) creates 2 types of offenses/ outcomes

 Section 240(1)(a)- (1)(c) – Three similar offences of obtaining property, credit or the execution of a document 

• Requires proof of the defined outcome

• Obtaining – s 217

 Section 240 (1)(d) - Causing loss by deception

• Nature of the loss is not defined

Wilkinson v R - s40(1)

No requirement that property existed or in V’s hands at the time of the deception (chose in action) 

Li v R

Broad interpretation of benefit: A “good” or an “advantage” (incl tertiary achievement certificate). A benefit is a good or advantage.

Chen v R - s 240(1)(b)

• D does not have to personally incur a debt or liability 

Subsection 1(d) Causing Loss to another person

■ Nature of the loss is not defined 

● R v Morley - Must be direct loss, loss of bargain and expectation loss not covered (✅failed investment, out-of-pocket) 

● R v Cai – Temporary loss sufficient (Bank froze & reversed fraudulent transaction but still unable to access at 1 point) 

s240 MR elements

1. Intention that another person should be deceived

2. No claim of right

3.  If D’s deception is a false representation, then D must’ve known or was reckless as to the falsity of a material part of the representation

If D causes loss, then negligence likely required (Objectively likely to cause more than trivial loss)

R v Morley for deception

Do not need to intend to cause the outcome, just deception (if AR made out, that is sufficient)