Theft by a person in a special relationship

Nicholls v R (R v Tallentire)

First case of corporate dealings relating to collapsed finance company
Endorsed elements of theft in a special relationship:
 In terms of actus reus:

• the defendant received or had possession or control over property;

• the terms on or circumstances in which the defendant received or obtained possession or control required them to account to, or deal with the property or its proceeds in accordance with the requirements of, another person; and

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

In terms of mens rea:

• the defendant knew of the requirements to account or deal with the property or its proceeds; and

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

R  v Sullivan

Noted actual control is relevant: director does not prove has control, likewise a non-director may have control (e.g. de facto or shadow director)

R v Scale

Requires more than simple debt situation, obligation to repay check not enough to impose positive obligation to account for the check

R v Prestney

Defendant might have legal ownership but is not the beneficial owner
Terms of payment may be oral
Loan was earmarked for certain use (investment in Korean stocks)

R v Kirk

Received money on account of draper and was expected to account for what received

R v Norris

No special relationship between customers required for theft as not earmarking for other purpose (but Crown did not argue no special relationship with insurance broker)

R v Prior

Even though a director always has a fiduciary relationship with a company, that does not mean they always have a duty to account to the company- it depends on the circumstances (were there specific requirements attached to the money)
In this case withdrawing funds before liquidation not a breach of the duty to account

R v Nisbet

Combination of general shareholder agreement and oral discussion enough for requirement to deal with refund in specific way (use refund to pay off loan)

Whale v R

Obligation to carry on business in a prudent and business like manner t

generic obligations governing the manner in which business is done cannot form the basis for liability under s 220

terms of specific property- nature and scope of obligation must be identifiable

R v Douglas

Accused must be aware of terms affecting freedom to deal with the property- precise details not necessary

R v Sizemore

No need for dishonesty

R v Cargill

No common law defence of claim of right (and not in statute)