Property and sexual offences flashcards

Elements of Theft (s219 Crimes Act)

Actus Reus: Must be property:

• 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.

• Cannot be theft if consented, even under deception.

Mens Rea:

• 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

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 p+c, 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.

• 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

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.
• R v Moodley: if no obligation to return, then can use it freely.

Elements of Blackmail

Actus Reus: 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: 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

Theft: eftpos transactions:

nothing moves between parties, as bank 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)).

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)

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). This 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.

• Po 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 goods, be held at the time of offending, must be genuinely held.

Theft MR3: with intent to permanently deprive one of their property

Intention = subjective MR. No need to prove loss to victim, just intent.

• 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: Condition-based intent to permanently deprive is sufficient (will return if you do this).

AR and MR of Unlawful Sexual Connection

AR: sexual connection (defined in s2): penetrating the vagina or anus with an object or body part. No consent (as defined under s128 Crimes Act).

MR: No reasonable belief of consent.

• R v Can, R v Taniwha: if defendant's belief of consent is unreasonable on objective grounds

Case law surrounding Sexual Connection:

• R v Ennever: requires insertion into the mouth cavity.
• can just read off the statute.

Case law in contentious situations involving consent: non-consent

Relationship expectations/assumptions:

• R v Christian: Relationship expectations indicating pattern of 'consent' only remain if nothing else has occurred that breaks that pattern. if so, then not 'reasonable grounds'.

Mistaken or coercive consent:

• R v Daniels: assisted rapist in inserting penis (likely for protection), = no consent despite assistance.
• R v Brewer: coercive situations involving authority, belief of no alternative choice = submission, not consent. youth of defendant/intellectual capacity is key (may not extend to grown women).
• R v Howard (Eng): Mental processes are inherent in capacity. No consent if: 1. they cannot comprehend that penetration was proposed or is about to happen, or 2. a lack of understanding that act of penetration is sexual character, or an inability to realise that able to consent or refuse.
• W v R: threats and blackmail of revenge porn followed by consent = no consent, just coercion/threats of humilation.
• R v Devonald: wanking on camera, deceived of nature and quality of sexual act, therefore no consent. RV v ACC (non-binding): recording during sex without consent alters the nature and quality of sex, could potentially vitiate consent. DC case and lesser binding fx.

Intoxication:

• R v Isherwood: intoxication entailing disinhibiting effect on defendant's ability to provide consent is a matter of degree. THIS IS A MATTER FOR THE JURY.

HIV/Stealthing:

• R v Lee: where information imbalance is present, amendatory measures are required in situations w/ serious consequences: disclosing HIV status is necessary for 'nature and quality' of sexual acts=consent.
• R v Campos: consent considering condom use is vitiated through stealthing, without being key reason of consent.

Case law for contentious consent situations: satisfies consent

• R v Cook: 'unwilling consent' produced by potentially fradulent means (low threshold) can still be consent:

- R v Christian: evidence of established, clear 'relationship expectations' involving continuation of certain behaviours alongside no clear objection can amount to consent.

Full step-by-step guide for unlawful sexual connection (Sexual violation, s188(1)

Establish AR1: did the act involve penetration of anus/genitalia by object/body part, with no consent? Establish AR2: was there no consent?

• Consent: examine legislative definition under interpretation, s128A and case law. Was there coercion, mental impairment, blackmail? If so = no consent under AR element, important to now look MR element.

Establish MR1: no belief of consent on reasonable grounds. Subjective assessment of belief, reasonable grounds is objective. Look further towards case law to determine reasonableness beyond basic inference.

Full step-by-step guide for indecent assault

Establish AR1: - touching in an indecent manner, or threatening victim so that they reasonably believe the accused has capability to carry out said indecent assault.

subjective perception of indecent assault: must be indecent to a reasonable person (R v Aylwin, right-minded metric)

Establish MR: - an intent to do something indecent (this is decided by the jury as per R v Aylwin)

• Mens rea for assault (intent to touch, knowledge that victim was not consenting.)

Jurisprudence for sexual offences? why are they hard to convict?

accused's ability to silence, 'putting the crown to proof'.

• heresay being common, complexity of consent.

Societal: _________________________________________________________________________ rape myths, constructive ambiguity of consent, underlying assumptions of untrustworthiness.

societally-engrained notions of vulnerability, submissiveness, dominance impacting perceptions of consent, blurring the lines between sex and rape.

absence of pleasure and desire can be described as unremarkable.

Case law for indecent assault (s135):

indecency definitions:

• R v Dunn [1973] CA= indecency must always be judged "re time, place and circumstance".
• R v Peters - circumstantial, down to contemporary norms.
• AYLWIN: what a right-minded person may regard as indecent in the circumstances:
• Mixed conflicting CA authorities about whether subjective perceptions of indecency should form mens rea requirement. Victim consent: R v Nazif: A's belief of victim consent needs to be genuine, not reasonable. R v Aylwin: onus is on crown to prove non-consent, and A's lack of belief of consent.

Legal state of HIV cases:

Some potential offences involving HIV:

• s188(1),(2)causing GBH with either intent or reckless disregard
• s145 Criminal nuisance: duty to take care when in charge of dangerous things (HIV-infected seminal fluid).
• s128 Rape: if consent can be vitiated by HIV non-disclosure, and non-protection of condom.

Jurisprudence: Medical advancements have likely reduced gravity of HIV offending, not a 'death sentence' nowadays (Filiatonga)

HIV conviction under s188(1),(2):

Involves an actual infection, generally without condom use, disclosure (potentially even voluntary infection!)

s188 AR element: causes GBH (HIV infection likely fulfils this)

MR elements: - defendant either must intend to cause GBH (1) or cause it with intent to cause injury, or with reckless disregard for victim safety (2).

• must acknowledge a risk, and willingly take it anyways (this could be through previous condom use, disclosure etc).

Cases for HIV infection:

• R v Mwai: convicted under s188 for infections, s145 for exposure. classified infected seminal fluid as 'dangerous thing'.
• R v Lee: one must disclose HIV status or wear a condom. if infected deliberately, sliding-scale calculation will likely not override victim consent/other factors.  Condom use mitigates risk significantly to the point  where non-disclosure won't vitiate consent (Mwai, Lee).
• R v Campos: non-condom use can vitiate consent when predicated on condom use.

KSB v ACC: non-crim law context, so not binding, but stated that HIV non-disclosure outright vitiated consent to sex.

However, recent common law advancements on 'stealthing' may signal a shift in how the nature and quality of sex dictates consent.

HIV conviction under s145, s156:

Generally reserved for non-infection cases involving exposure. Paired in HIV context with s156. Criminal nuisance requires: AR: an unlawful act or omission.

MR: knowledge that act/omission would endanger lives/safety of others.

Omission requirements: s156: must be a dangerous thing, must take reasonable precautions to avoid such danger. (condom use, disclosure, medication).

Sexual offences: look in lectures and readings to see if any cases won't be needed

Maybe: R v Annas, R v Nazif, R v Peters.

Sexual offences most important cases to remember:

Christian v R (consent, relationship expectations), R v Brewer (coercion, consent), R v Mwai, R v Lee (HIV), R v Aylwin (indecency threshold), R v Daniels (victim consent), W v R (threats/blackmail and consent). R v Campos (stealthing).

Does HIV non-disclosure amount to non-consent?

If so, then HIV non-disclosure could potentially be rape provided Mens Rea and objective perceptions of consent are met.

KSB v ACC: non-crim law context, so not binding, but stated that HIV non-disclosure outright vitiated consent to sex.

Canadian jurisdiction: R v Cuerrier: Fraud must result in serious harm, or solely impact the decision to consent. (evaluated against Filitonga),