Crimes Act: Property Offenses - Theft and Related Concepts
Property Offenses: General Overview
Property offenses are covered in Part 10 of the Crimes Act, encompassing sections through , which include approximately distinct offenses and sections.
This area of law is considered complex and somewhat disorganized due to its historical evolution.
Historical Influences: The current framework is a "strange mishmash" derived from:
Feudalistic ideas: Focused on possession and use rights (relationship primarily about positioning and use rights).
Colonialist ideas: Incorporating concepts of ownership and title.
More recent capitalist ideas: Centered on ownership of property.
English Model of Property: The law reflects an English model, which can be at odds with indigenous legal systems where the relationship to resources (e.g., shellfish, growing places) involves rules about access and use, rather than strict ownership.
2002/2003 Reforms: A wholesale replacement of parts of this section occurred in , leading to key changes:
The mens rea element across the section was changed from "fraudulently" to "dishonestly."
New offenses related to computers and technology were added.
These reforms did not fully resolve the "mishmash" of ownership and possessory rights, contributing to its complexity.
Definition Scrutiny: Definitions required for offenses can be found in two main places:
Section of the Crimes Act (general definitions).
Part 10 itself, including section (interpretation section for the entire part) and other interpretation sections within specific subparts.
Key Definitions in Part 10
Dishonestly
This is a core mens rea state, replacing "fraudulently" as of .
Definition: Means done or omitted "without a belief that there was expressed or implied consent to or authority for the act or omission from a person entitled to give such consent or authority."
Essence: The absence of a belief in consent or authority from the rightful person.
Distinction from "Fraudulently": "Fraudulently" was interpreted by courts as involving a moral dishonesty, implying the offender knew it was morally wrong. "Dishonestly" removes this moral component, focusing purely on the absence of belief in consent/authority.
Subjective Test: It centers on the defendant's actual belief at the time of the act. The Crown must demonstrate the defendant did not have such a belief.
Obtain
Though seemingly obvious, "obtain" means both "to get" and "to retain."
This is crucial for understanding offenses like "obtaining by deception," as one might acquire something lawfully but then unlawfully retain it.
Document
A long and detailed definition exists in section (at the beginning of the subpart on unlawful taking, but applicable broadly).
Matters of Ownership (Section 217)
Definition Extension: A person is regarded as the owner of property if they have:
Possession or control of the property.
Any interest in the property.
The right to take possession or control of the property.
Wide Scope: This definition is much broader than a strict understanding of ownership (e.g., having title).
Feudal Influence: It reflects the persistence of feudal ideas where possession and use rights are significant.
Possession Matters: Even if you don't have title (e.g., a car under a hire purchase agreement), if someone steals it from you while you possess it, they are stealing it from you.
Civil Law Concepts: Property offenses draw heavily from civil law concepts of ownership, bailment, and other proprietary rights.
Multiple Ownership: Multiple people can "own" the same thing (co-owners, different shares/proportions of ownership). It is possible to steal from a co-owner, even if you have the largest share (e.g., taking a mortgage against shared property or selling it without consent).
Property Law vs. Criminal Law: Criminal property offenses are a small part of how the relationship between people and property is regulated; the bulk is handled by tort law, property law, trust law, and competition law.
Unlawful Taking: Theft or Stealing (Section 219)
The concept of "unlawful taking" (theft) is akin to "assault" being the core for non-fatal offenses, with many other offenses being "theft plus."
Two Limbs of Theft (Section 219):
Taking Limb: Dishonestly and without claim of right taking any property with intent to permanently deprive any owner of that property or any interest in it.
Using/Dealing Limb: Dishonestly and without claim of right using or dealing with any property with intent to permanently deprive any owner of that property or any interest in it after obtaining possession of or control over the property in whatever manner.
Key Distinction: The second limb (using or dealing) applies when possession was obtained lawfully, but subsequent use/dealing is unlawful.
Mens Rea States (Combined):
Basic intention to perform the act (take, use, or deal).
Dishonestly (as defined above).
Without claim of right (as defined below).
Intent to permanently deprive (as defined below).
The section implies four actus reus and four mens rea elements.
Actus Reus Elements of Theft
It must be property: Defined broadly in Section of the Crimes Act:
Includes real or personal property (material, tangible, real estate, corporeal).
Any estate or interest in real or personal property.
Money, electricity, any debt, anything in action, and any other right or interest.
Ownership can be partial; property does not require economic value.
Case: Dixon (02/2013) & Davies (02/2018):
Dixon: Digital files are property. Court of Appeal initially said no (information cannot be owned), but the Supreme Court reversed, noting digital files are identifiable, have value, and can be transferred.
Davies: Internet usage is property (classified as a "thing in action" and supplied in relation to using the Internet).
Things Not Capable of Being Owned: Traditionally, people and corpses cannot be owned. However, this is becoming problematic with advancements like transplants and stem cells.
Corpse Exception: While there's generally no property in a deceased body, an executor has a possessory right for the specific purpose of final disposal (e.g., burial), not an open right.
It must be owned or possessed by someone other than the defendant:
Beyond being "capable" of being owned, it must, in fact, be owned by someone else.
Abandonment: Truly abandoned property cannot be stolen. However, simply placing rubbish at the curb for collection is typically a transfer process, not abandonment. Illegal dumping is a separate offense.
Lost Property: Lost property is not abandoned; the owner still has rights. "Finders keepers" is generally not true unless the item is genuinely abandoned.
Case: Ellerm: A forestry milling company abandoned river logs in a lake. The council, owning the lakebed, was deemed to have proprietary rights to these logs, meaning another party could not lawfully take them.
Identity of Owner: The specific owner does not need to be known, only that someone else owns it.
The defendant must take possession OR use or deal with property:
Taking (s): Means to move the tangible property or cause it to be moved. Any slight movement is sufficient (Case: Coslett, , moving a parcel within a van).
Section states that taking does not include obtaining possession/ownership/control with the consent of the person from whom it is obtained, even if consent is obtained by deception. In cases of deception, the appropriate charge would be "obtaining by deception," not theft.
Using or Dealing: Formerly known as "conversion" under common law.
Applies when possession was obtained lawfully, but the subsequent use or dealing is unlawful (without consent or justification).
The courts have held that consent is still essential for using or dealing to be lawful, even though s specifically excludes consent for "taking" but not "using or dealing." This is to avoid absurd outcomes (e.g., being a thief every time you read a borrowed book).
Must inherently mean conduct inconsistent with the rights of the owner. Can be continual, passive, or by omission.
Without consent of the owner (for taking/using/dealing):
Consent must be freely given.
Mens Rea Elements of Theft
Attempt to take, use, or deal (Basic Intention): The act itself must be intentional, not accidental.
Dishonestly: The defendant must know they do not have the owner's consent or authority to do what they are doing. This is a subjective assessment of the defendant's actual belief.
Without Claim of Right: Defined in Section of the Crimes Act:
Means a belief, at the time of the act, in a proprietary or possessory legal right to the property.
Narrow Scope: This refers strictly to a lawful right, not a moral justification or belief. This is a change from the previous "color of right" which allowed for moral entitlements.
Case: Cooley and Hayes: Affirmed that the belief must be in the existence of a legal right, to eliminate what was known as a "Rockingham defense" (moral justification).
Exception to Ignorance of Law: Crucially, this belief may be based on ignorance or mistake of fact or law (other than the enactment against which the offense is alleged). This is a rare exception to the general rule in Section of the Crimes Act that ignorance of the law is no defense.
Both "dishonestly" and "claim of right" are subjective tests, focusing on the defendant's actual belief.
Intent to Permanently Deprive (Section 219(2)):
Beyond a desire to simply take, the intent must be to permanently deprive the owner.
Expanded Definition (s): An intention to deal with property in such a manner that:
The property cannot be returned to any owner in the same condition (e.g., significantly altering or consuming it).
Any owner is likely to be permanently deprived of the property or any interest in it. This introduces a risk component, akin to recklessness (you knew there was a risk, and you took it).
Case: Maranga: A bar manager would take coins from gaming machines, feed them back in to try and win, then accurately bank the full amount. He was not found guilty of stealing the original coins because he did not have the intent to permanently deprive the owner of those specific coins, but rather misappropriated funds if he won.
Conditional Intent: A conditional intent to deprive is sufficient (e.g., "If this jumper fits me, I'll keep it.").
Other Unlawful Taking Offenses
Conversion of a vehicle or other conveyance (Section 226): Taking someone's vehicle for temporary use (e.g., joyriding) without intent to permanently steal it. This is a lesser offense than theft of a vehicle.
Criminal breach of trust (Section 220): Covers situations where a person has legal ownership but holds property on behalf of others and breaches that special relationship. No additional benefit needs to be gained by the offender; the breach itself is the core.
Taking or obtaining property in trade secrets (Section 230): There is debate whether this is truly a form of unlawful taking.
Dishonestly taking or using a document.
Receiving Stolen Property (Section 246)
Purpose: To deter theft by making it difficult to dispose of stolen goods, thereby disrupting the black market and preventing thieves from profiting.
Actus Reus:
The property must be stolen (illegally obtained by someone else).
The defendant must receive it (cannot be the person who committed the original theft).
Receiving includes concealing or disposing of the property as well.
Mens Rea: The "mal intent" (knowledge that the property is stolen) must exist at the time of receiving.
It is not necessary for the defendant to know how it was stolen, only that it is stolen.
Doctrine of Recent Possession: A common law rule of evidence (not a substantive rule of proof).
If a person is found in possession of stolen property very soon after the theft, there is a rebuttable presumption that they either stole it or received it.
In the absence of a reasonable explanation from the defendant, this can be sufficient evidence for a conviction. This effectively shifts the evidential burden to the defendant.