LWZ114 Criminal Law: Comprehensive Notes on Property Offences (Week 9)

THE CONCEPT OF PROPERTY AND PROPRIETARY RIGHTS

• Distinction Between Property and Things:     * We commonly mistake 'property' for physical 'things' such as a book, a car, or land.     * Example: If a person is the author of a book, they do not automatically own every physical copy of that book existing in the world.     * 'Property' does not refer to the object itself; it is a description of a legal relationship with a thing.     * It refers to a degree of power recognized in law that can be permissibly exercised over the thing.     * The concept is often elusive and is traditionally treated as a 'bundle of rights,' as established in $Yanner v Eaton (1999) 201 CLR 351$.     * Property rights are referred to as 'proprietary' rights or interests.

• Types of Property:     * Real Property: Refers to property rights in land.         * Fixtures: Things attached to land such as buildings or trees; these are considered part of the real property.         * Chattels: Things that are reasonably removable; these are categorized as personal property.     * Personal Property: Property rights in things other than land.     * Chose in Action: Property rights over incorporeal (intangible) things, including:         * Intellectual property: Rights in artistic works, confidential information, and inventions (e.g., patents, copyright, trademarks).         * Financial instruments: Shares, stocks, and securities.         * Future rights: Rights to property rights in the future (e.g., rights under a contract).         * Trust rights: Rights held under a trust.

• Quirks of Property:     * Responsibilities: Property can entail responsibilities as well as rights. A landowner has many legal responsibilities attached to the land. If property is purchased or inherited, these responsibilities are inherited or purchased alongside the rights.     * Licence vs. Property: Historically, a 'licence' (the right to use property in a certain way) was a personal right that could not be sold. However, modern legislation allows for certain licences to be bought and sold.

• Bundle of Rights (Permitted Actions):     * Possess, occupy, or control the property.     * Improve, alter, damage, or destroy the property.     * Use the property for a purpose.     * Exclude others: The right to prevent others from using the property is central to the concept of 'private property' in English common law.     * Grant rights: Temporarily or permanently granting others the exercise of property rights, either separately or jointly.     * Alienate or dispose: Permanently giving away or selling property rights.     * Transfer or inherit: Moving the rights to another party.

• Property Terminology:     * Legal Interest: A clearly defined kind of right, such as ownership or a contractual right.     * Equitable Interest: Entitlements recognized by courts even if no legal right exists (e.g., being a beneficiary of a trust).     * Vested: Property rights that a person possesses now, as opposed to in the future.     * Chose: The traditional legal term for a bundle of rights in personal property (rhymes with 'snows').

• The Nature of Money:     * Money/currency is a special type of recognized property known as 'legal tender.'     * It is a standardized measurement of the value of a legal right that can be bought and sold.     * Having $\$1$ means having a legal right to $1$ unit of value recognized in a specific country.     * Proof of this right can exist as coins, notes, or bank accounting records.     * It facilitates trade when parties do not possess objects of precisely equal value.

LEGISLATIVE FRAMEWORK: PART VII PROPERTY OFFENCES

• Overview of Part VII (ss 209-257):     * Division 1: Theft and related offences (robbery, burglary, shoplifting, receiving, joyriding).     * Division 2: Deceptions, dishonesty, and blackmail.     * Division 2A: Identity crime.     * Division 3: Money laundering.     * Division 4: False accounting and false statements.     * Division 5: Bribery and secret commissions.     * Division 5A: Cheating at gambling.     * Division 6: Criminal damage.     * Division 7: Forgery.

• Legislative History:     * Inserted via the Criminal Code Amendment (Property Offences) Bill 2022.     * Key Dates: Introduced on $01/09/2022$; passed on $13/10/2022$; commenced on $30/04/2023$.     * Research Resources:         * Explanatory Speech: Accessible via territoriesstories.nt.gov.au (search: collection=debate* AND date=2022-09-01).         * Explanatory Statement/Memorandum: Accessible via legislation.nt.gov.au (Bills > By Session > Fourteenth (2020-) > Bill no. 60).     * Purpose: To convert the code to Part IIAA and to modernize and rationalize property offences.

KEY STATUTORY DEFINITIONS

• Meaning of Property (s 210):     * Property means all real or personal property, including:         * (a) Money.         * (b) Things in action or other intangible property.         * (c) Electricity.         * (d) A wild creature that is tamed, ordinarily kept in captivity, or is being reduced into the possession of a person.         * (e) Human body parts: Any organ, part of a human body, blood, ova, semen, or other substance extracted from the human body.

• Services and Supply (s 209):     * Services: Includes any rights (including rights/interests in property), benefits, privileges, or facilities, but excludes rights/benefits that constitute the supply of goods.     * Supply:         * For goods: Sale, exchange, lease, hire, or hire-purchase (including re-supply).         * For services: To provide, grant, or confer.

• Person to Whom Property Belongs (s 211):     * (1) Property belongs to anyone having possession or control of it, or having any proprietary right or interest in it.     * Exclusion: It does not include an equitable interest arising solely from an agreement to transfer or grant an interest, or from a constructive trust.     * (2) Joint Ownership: If property belongs to $2$ or more persons, a reference to 'the person to whom property belongs' refers to all of them.

• Self-Defence (s 43BD(2)(a)(iii)):     * An act of self-defence is considered lawful if performed to protect property from unlawful appropriation, destruction, damage, or interference.

• Appropriation (s 212):     * (1) Any assumption of the rights of an owner to ownership, possession, or control without the owner's consent.     * (2) Late Assumption: If a person comes by property (innocently or otherwise) without theft, a later assumption of rights (keeping or dealing with it as owner) without consent constitutes appropriation.     * (3) Good Faith Exception: If property is transferred to a person acting in good faith, a later assumption of rights the person believed they were acquiring is not appropriation, despite defects in the transferor's title.     * Owner's Rights at Common Law: Includes using, destroying, damaging, selling, pledging, lending, borrowing, retaining, or refusing to return property.

DISHONESTY AND TRESPASS

• Definition of Dishonesty (s 43AGA):     * (1) Conduct is dishonest if it is dishonest according to the standards of ordinary people.     * (2) Absolute liability applies to the physical element of the conduct.     * (3) Dishonesty is a matter for the trier of fact (jury or magistrate).     * Legal Context:         * This mirrors the test in $Peters v The Queen (1998) 192 CLR 493$.         * It differs from the Model Criminal Code but is consistent with the Corporations Act 2001 (Cth).         * It involves assessing the defendant's subjective state of mind (knowledge, intention, belief) against objective community standards.         * Historically, the English case $R v Ghosh$ required a two-limb test (objective dishonesty and the accused's realization of that dishonesty), but the High Court in Peters adopted the single objective standard of 'ordinary decent people.'     * Functions of 'Dishonesty': Allows fraud to be framed broadly to cover human ingenuity. Example of questionable dishonesty: Making a false statement to obtain stolen property from a thief to return it to the true owner.

• Dishonesty Specific to Property (s 214):     * (1) Not dishonest if the person believes the property is lost AND the owner cannot be discovered.     * (2) This exception does not apply to trustees or personal representatives.     * (3) A person may be dishonest even if they are willing to pay for the property.

• Trespass:     * Not defined in statute; uses the common law definition.     * Can be trespass to land or trespass to goods/chattels (interference/damage).     * Elements:         * Voluntary act.         * Enters or remains on land or engages in direct interference (e.g., dumping items over a fence).         * Property belongs to another.         * Lack of lawful authority.         * Lack of consent: Note that an implied licence may exist for legitimate purposes ($Halliday v Nevill (1984) 155 CLR 1$).         * Lack of necessity.

CORE PROPERTY OFFENCES: THEFT AND ROBBERY

• Theft (s 217):     * Elements:         * (a) The person appropriates property.         * (b) The property belongs to another; the person has knowledge of this circumstance.         * (c) The act is done with the intention of permanently depriving the owner.         * (d) The conduct is dishonest.     * Fault Element: Subsection (1)(c) is the specific fault element for the appropriation.     * Penalty: Imprisonment for $10$ years.

• Supermarket Cases (Common Law Jurisdictions):     * Price Switching: Switching a lower price label onto goods is theft once the lower price is paid ($R v Morris [1984] AC 320$).     * Concealment: Concealing a cassette in trousers is evidence of asportation (taking away) and intent to steal ($Basset v L (1984) 112 LSJS 167$).     * Pre-Checkout Intent: If it is proved a person has no intention of paying, the offence is complete even before passing the checkout ($Humes v Townsend (1989) 4 WAR 196$).

• Robbery (s 218):     * Defined as 'aggravated theft' comprising theft plus violence or threats.     * Elements:         * (a) Commit theft.         * (b) Use force OR threaten to use force 'then and there' on another person.         * (c) Conduct in (b) is done with the intent to commit theft or escape the scene.         * (d) Force/threat occurs when committing theft, immediately before, or immediately after.     * Penalty: Imprisonment for $14$ years, or life for an aggravated offence (e.g., in company, using a weapon, or causing harm).

BURGLARY AND RELATED OFFENCES

• Entering Building with Intention to Commit Offence (s 220):     * (a) Enter or remain in a building.     * (b) Intend to commit an offence (excluding offences against the Trespass Act 2023).     * (c) Is a trespasser; is reckless regarding being a trespasser.     * Standard of Proof: Proof of entry (a) and trespass (c) is evidence of the intent (b).     * Fraud/Mistake (s 220(4)): A person is not a trespasser solely because they entered for a non-intended purpose or through fraud/misrepresentation/mistake.     * Penalty: Imprisonment for $4$ years.

• Burglary (s 221):     * (a) Enter or remain in a building.     * (b) Intend to commit an indictable offence or an offence against s 188(1) (Assault).     * (c) Is a trespasser; is reckless regarding being a trespasser.     * Penalty: Imprisonment for $14$ years.

• Circumstances of Aggravation for Burglary (s 222):     * The defendant must be reckless regarding these circumstances:         * (a) Building is a dwelling-house and offence is at night.         * (b) Offence committed in company with others.         * (c) Possession of a firearm or dangerous/offensive weapon.         * (d) Building is a dwelling-house and possession of a firearm/weapon.

• Damaging or Interfering with Property as Trespasser (s 224):     * (a) Intentionally enters a building.     * (b) Is a trespasser (reckless as to that circumstance).     * (c) Intentionally damages or interferes with the building or property within.     * Penalty: Imprisonment for $7$ years.

• Going Equipped for Theft (s 225):     * (a) In a place other than home.     * (b) Possesses an item.     * (c) Intends to use the item for theft or a related offence (Robbery s 218, Burglary s 221, etc.).     * Penalty: Imprisonment for $3$ years.

RECEIVING, SHOPLIFTING, AND MAKING OFF WITHOUT PAYMENT

• Receiving Stolen Property (s 226):     * (a) Intentionally receives property.     * (b) Property is 'stolen' and the person knows or believes it is stolen.     * (c) Conduct is dishonest.     * Definition of Stolen Property: Appropriated property, or property obtained before the section commenced via an indictable offence (even if committed outside the Territory).     * Penalty: Imprisonment for $10$ years.

• Shoplifting (s 227):     * (a) Appropriates property.     * (b) Property is for retail sale and worth less than $\$500$.     * (c) Intention of permanently depriving the owner.     * (d) Conduct is dishonest.     * Strict Liability: Applies to the retail value threshold of less than $\$500$.     * Penalty: $50$ penalty units or $6$ months imprisonment.

• Making Off Without Payment (s 228):     * (a) Supplied with goods or services (Strict Liability).     * (b) Immediate payment is required/expected; person knows this.     * (c) Intentionally makes off without paying.     * (d) Conduct is dishonest.     * Exclusion: Not an offence if the supply of goods/services was unlawful.     * Penalty: Imprisonment for $2$ years.

DIVISION 6: CRIMINAL DAMAGE

• Definitions of Damage (s 238):     * (a) Destroying property.     * (b) Causing physical loss through interference (abandoning or removing restraints).     * (c) Causing loss of use or function.     * (d) Defacing property.     * (e) Documents: Obliterating or rendering illegible.     * (f) Animals: Harming or killing.     * (g) Plants/Land items: Severing from land.

• Definition of Property for Damage (s 239):     * Refers to real or personal property of a tangible nature.     * Includes tamed/captive wild creatures.     * Includes human body parts/substances extracted from the body.

• Causing Result (s 240):     * A person 'causes' damage if their conduct substantially contributes to it.

• Damage to Property (s 241):     * Elements: The person causes damage to property belonging to another.     * Fault Elements:         * (a) Intentionally causes damage to property belonging to that person or another; OR         * (b) Is reckless as to causing damage to property belonging to that person or another.     * Penalty: Imprisonment for $10$ years.