Crim law property flashcards

Elements of Theft (s219 Crimes Act)

Actus Reus: Must be property:

Must be owned by somebody else: must be owned by somebody else.

• taking of property to deprive the owner permanently of the property (or interest in the property)

• Taking = returned in different condition, likely deprivation of property or interest in property.

• taking=property must be moved by offender.

• without consent: cannot be theft if consented, even under deception.

Mens Rea:

• must be dishonest, or without claim of right (claiming that it belongs to you)

• must display intention to deprive owner.

• must not have any claim of right.

Theft AR1: Defintion of Property (s2 Crimes Act)

chattels etc, both includes tangible and intangible pieces of property, plus interests.

S 2 Crimes Act definition: Includes real (housing) and personal property, and any estate or interest in any real or personal property, money, electricity, and any debt, any anything in action, and any other right or interest.

Chose in action: gives you the right to sue or enforce a claim in court. E.g. company shares, intellectual property, insurance claims,

Transformation into digital world has extended boundaries of property…

AR1: Cases re. definitions of property

Lakeman: Property is anything that 'can, as a matter of normal use of language, be described as capable of being stolen (except pure information, intellectual property, corpses and body parts).

Davies v Police: use of others' internet (the megabytes/gigabytes themselves) qualifies as property, as people pay for broadband plans.

Dixon v R: footage from CCTV bar (or other digital assets) qualifies as property, as its minute physical presence can be excluded from others' possession/transferred.

R v Lakeman: digital assets/currency (including Runescape coins) qualifies as property, due to excludability and purchasing power.

Body parts are not property, UNLESS: Takamore v Clarke: body parts, if skilfully preserved and able to be used, can qualify.

Theft AR2: Must be owned or possessed by somebody else def+cases.

s218(1)(a-c): ownership+control, right to take possession+control, interest (loan/debt) in property.

s218(2): Somebody can be a co-owner e.g. depriving a spouse's shared ownership of something (s222)

R v Saxton: one can own something under Maori customary rights, if not expressly extinguished by statutes. (jade)

Abandoned property is very hard to find, usually an owner. Owner must have relinquished all claims to property without transferring to another.

• Hibbert v McKiernan: lost/abandoned golf balls on course belong to course, due to intention to keep others out (fence)
• Williams v Phillips: householder retains possession of binned items, until council collects rubbish, then it is theirs.

Theft AR3: Using, taking or dealing with something (conversion) def+cases

U+D is typically through renting/hiring/borrowing/holding

Taking, using or dealing with something, after gaining possession, inconsistently with the rights of the original owner. Can be taken legally, but if kept/used, can constitute conversion. Owner consent/no clear owner/obligation to return, then not conversion.

• Police v Subritzky: No taking required if conduct is inconsistent with owner's rights. child takes toy from store, mother eventually returns it but in poor condition.
• R v Russell: air compressor hired under false name, painted green over logo with evident intention to keep.

Not conversion if:

• Broom v Police: owner consent of use disqualifies conversion: lost bike agreed to be returned in pieces for reward, ruled not conversion as owner was offered on BM, and dismantled return was within owner's permission.
• R v Moodley: lost police handbook in bookstore, tidied it up. without mens rea and did not usurp/treat as own.

Elements of Blackmail (s237)

Assess if somebody makes threats to achieve an objective.

Actus Reus elements: Make an accusation against any person to:

• Disclose something about any person
• Cause serious damage to property
• Endanger the safety of any person Person can be living or dead

Mens Rea elements: Must intend to:

• cause the person to which the threat is made to act in accordance with the desires of the threatener.
• Obtain any benefit or loss against any other person.

Defintion of Robbery and Aggravated Robbery

Robbery=theft and assault Aggravated robbery=theft and GBH/armed with an offensive weapon

Theft: eftpos transactions:

nothing moves between parties, as bank is an intermediary extinguishes and creates transactions.

Consent and Taking, examples.

Consent must be freely given. Necessary for lawful transfer. non-consent is taking, using/dealing, theft etc.

Consent can be given with deception and fraud (s219(3)). Would probably instead be s240 obtaining by deception.

Consent and mistakes: can vitiate consent when concerning:

• identity of the transferee
• mistaking what is actually being handed over
• quantity-based mistake (amount of thing, not money). (Illich v R)

Wilkson: online transactions do not qualify as taking, potentially obtaining by deception.

Theft: Mens rea requirements

Needs to be done 'dishonestly'

Without any claim or right

With intent to deprive a person of their property.

Theft MR1+2: Done dishonestly, without claim or right + cases

• No belief in express or implied consent to, or authority for, the act/omission (incl had not thought about it which = no belief). Belief in claim of right is a subjective mental state.

• Colour/claim of right: - Police v Minhinnick: proprietary rights, ancestral compulsion to take Taranaki war cross as Maori connected to that land.

• Police v Moodley: Bona fide belief that goods are abandoned = defence to theft as not dishonest intent.

• Burt v Police: belief must be related to possession of the good itself, must be held at the time of offending, must be genuinely held.

• Police v McHinnick: war medals from Taranaki war, felt ancestral pull to take from a museum through historical injustice.

Taking definition and case law:

Only if a defendant causes it to be moved/moves it without consent (earring caught in hair case). attempted theft ish. This is to deter people from attempting taking in the first place. Obviously must possess requisite MR requirements. Needs to be without consent. Consent must be freely-given (r v Park) R v Coslet: moved currants to other side of wagon in attempt to take, convicted.

Does a fundamental mistake vitiate the rightful transfer of property? (thus a change in ownership)

If somebody transfers something according to these mistakes, they retain title of the goods/ownership is not transferred.

Illich v R: some mistaken property transfer situations can vitiate consent, which would satisfy AR element of property crimes:

• mistakes as to the identify of the transferee (wrong person)
• identity of the item transferred (wrong thing)
• quantity-based mistake (except for money) Money incurs a civil liability to settle the debt, provided the transaction was bonafide and in good faith.

s219 Theft: MR - intention to permanently deprive

intention to deal with property so that it cannot be returned to the owner in the same condition; or risking permanently depriving owner of ownership/interest.

Does not apply to money: if money isn't the exact same notes/coins, then forced substitution = liable. R v Morunga: owning gambling machine, cycling same coins through machine = no intention to permanently deprive.

s220: Theft in a Special Relationship

s220(1): Applies to a person who has been entrusted with property, received ownership of something on behalf of another person. e.g. investors, lawyers, fundraisers, company accountants, directors, people managing money/property on behalf of somebody. (if the terms of control cant be sufficiently proven to be certain, then it is a civil matter)

s220(2): theft if the person fails to treat the property as required, deals with the property or proceeds in a manner otherwise required by the relationship/requirements.

s220 AR element 1: Receipt of Possession/Control

Accused must have KNOWINGLY (custody v control) received the property to take ownership/control of it. Must be actually the one in control. Can also be liable if legal owner.

• R v Sullivan: directorship in a corporate context is not sufficient, must have demonstrable intent/evidence of control. evidence/investigation is required to establish true ownership/direction in control.

s220: what kind of relationships give rise to a duty to account?

Liquidator, investor, lawyer taking charge of trusts, employee handling employer's property. Companies are tricky, as directors may control the company, but not individual decisions.

• R v Prior: company's directors did NOT have a duty to account, as duties qwere not Whilst directors always have a fiduciary duty, the company's directors realised the company was in trouble, and pulled out the funds prior to liquidation. Owed unpaid taxes to staff etc.

Were there specific requirements attached to the money that they breached? They prioritised certain creditors in this situation…

• Nisbet v R: where the directors DID have a duty to account, Two people creating another company, sought financial funding from shareholders. Agreement created between shareholders and also business partners entailed that GST refund had clear terms attached to its use.

s220 AR element 2: Requirement to Account for or Deal

Must be actually 'dealing with the money' for a specific purpose/duty - fiduciary element.

• R v Scale: Cannot simply be a debt situation, which civil law would be required. Either a contractual or fiduciary duty, where duties are either set out in contract or the legal owner.

• R v Sullivan: The fiduciary vs contractual characterisation of the obligation is not decisive.

• R v Kirk: misuse, concealment of (fungible financial) deposit upon reception (fungible) with clear terms to transfer to company.

• R v Prestney: investor received money to invest in Korean stocks, spent the money on himself instead.

s240 elements: obtaining by deception

AR:

• D must engage in deception (false representation, omission/duty to disclose, fraudulent document).
• Deception causes the defendant to obtain

MR:

• Knowledge that representation is false
• Intention to deceive it
• with no claim of right

s228: Dishonestly taking or using a document elements:

Taking: AR:

• the item is a document (broad definition explored in s217)
• takes, obtains, uses or attempts to use any document

MR: intention to obtain property, service, financial advantage

• Dishonestly
• without claim of right

s228: what is this used for?

When people use things belonging to themselves to gain an advantage through dishonest means, either to themselves, or a third party (or company e.g. Burt v Police).

When people have taken documents of little actual/inherent value, such as an airline ticket, credit card etc. you MUST take the value of the item on its face.

• Physical condition of card and the card's attributes are two different things.

When people falsify documents or use things dishonestly to obtain loans, ACC, tax refunds, benefits. If you pick a credit card up, intend to hand it in, but then choose to use it yourself…

No need to prove any success, just intention.

s228 cases

Hayes: the intention is to criminalise the 'dishonest behaviour' in obtaining a benefit/advantage. can be for a third party, you can be otherwise entitled to the benefit.

• not the benefit, but the process in which the benefit was obtained. this solves the 'claim of right' implications

Burt: the benefit can be to a third party, even a company.