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(FLK2) Criminal Law > Property Offences > Flashcards

Property Offences Flashcards

1
Q

What are the Core Property Offences?

A

Arson:

  • Basic Arson.
  • Aggravated Arson.

Criminal Damage:

  • Basic Criminal Damage.
  • Aggravated Criminal Damage.

Stealing:

  • Theft.
  • Robbery.
  • §9(1)(a) Burglary.
  • §9(1)(b) Burglary.
  • Aggravated Burglary.

Fraud:

  • Fraud by False Representation.
  • Fraud by Failure to Disclose.
  • Fraud by Abuse of Position.
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2
Q

What are the Elements of Basic Criminal Damage?

A
  • Actus Reus : Unlawfully damaging or destroying any Property belonging to another.
  • Mens Rea : Intent or Recklessness as to damage or destruction.
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3
Q

Does the notion of Property include Animals?

A

Yes, but only those tamed, in captivity, or in the course of being reduced to possession.

This includes animal carcasses.

Wild flora and fungi is not considered Property.

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4
Q

When will Property Belong to Another?

A
  • They have a Charge over it.
  • They have a proprietary interest therein.
  • It is in their custody or control, even if they are unaware of it but it sits on their Land.
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5
Q

When is Property considered Abandoned?

A

When the Owner has voluntarily relinquished all rights, title, and interest in it, with no intention of reclamation.

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6
Q

What are the Elements of Basic Arson?

A
  • Actus Reus : Unlawfully damaging or destroying any property belonging to another by fire.
  • Mens Rea : Intent or Recklessness as to damage or destruction.
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7
Q

What constitutes a Lawful Excuse for Basic Criminal Damage or Basic Arson?

A
  • The General Defences.
  • §5(2)(a) CDA: The Defendant honestly believed the Owner would have consented to the damage.
  • §5(2)(b) CDA:
    • The Defendant acted to protect their or another’s Property;
    • Believing the need to do so was immediate and the means adopted were reasonable; and
    • Objectively speaking, undertook action capable of protecting the Property.

§5(2)(a)-(b) apply exclusively to these Offences.

Honest Belief ≠ Reasonableness. Accordingly. Voluntary Intoxication does not negate §5(2)(a).

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8
Q

What are the Elements of Aggravated Criminal Damage?

A
  • Actus Reus : Unlawfully damaging or destroying any Property belonging to another, or one’s own Property, thus causing a risk to life.
  • Mens Rea : Intent or Recklessness as to damage or destruction and the consequent endangerment of life.

Regarding the Actus Reus, it is irrelevant whether the life of another was actually endangered.

However, if such danger arises, it must do so from the ensuing damage itself.

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9
Q

What are the Elements of Aggravated Arson?

A
  • Actus Reus : Unlawfully damaging or destroying any Property belonging to another, or one’s own Property, by fire, thus causing a risk to life.
  • Mens Rea : Intent or Recklessness as to damage or destruction by fire and the consequent endangerment of life.

Regarding the Actus Reus, it is irrelevant whether the life of another was actually endangered.

However, if such danger arises, it must do so from the ensuing damage itself.

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10
Q

What are the Elements of Theft?

A
  • Actus Reus : Appropriating Property belonging to another.
  • Mens Rea : Dishonesty and Intent to permanently deprive.
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11
Q

Regarding Theft, what constitutes ‘Appropriation’?

A

Any assumption of the rights of an Owner, irrespective of the Defendant’s or Owner’s mental state.

This may be done even with the Owner’s consent, including valid gifts.

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12
Q

Regarding Theft, what is the Innocent Purchaser Defence?

A

If the Defendant, as Equity’s Darling, purchases property they later discover the Vendor was not entitled to sell, but thereafter keeps it, they will not be liable.

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13
Q

Regarding Theft, when will one be found Guilty of Stealing Land?

A
  • §4(2)(a): An authorised Vendor Appropriates the Land by dealing with it in breach of their duties.
  • §4(2)(b): A Trespasser or Guest Appropriates anything forming part of the Land, whether by severing it or after it has been severed.
  • §4(2)(c): A Tenant Appropriates the whole or part of any fixture or structure.

A Defendant will also be found guilty of picking from wild flora or fungi if it is for a reward or commercial purpose, or, if in doing so, they cut or uproot the plant.

The same rule on Animals apply.

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14
Q

What is the effect on Ownership of Transferring Property for a specific Purpose?

A

So long as the Defendant is legally obligated to retain and deal with the Property in a particular way, it belongs to the Transferor.

This does not prevent the Defendant from having legal ownership, but provides that the Property also belongs to another.

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15
Q

What is the effect on Ownership of Transferring Property to another by Mistake?

A

It is still considered to belong to another, as they are legally obligated to restore the Property under the Doctrine of Restitution.

This does not prevent the Defendant from having legal ownership, but provides that the Property also belongs to another.

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16
Q

Regarding Theft, what are the Exceptions to Dishonesty?

A
  • The Owner would consent if he knew.
  • The Owner cannot be discovered upon taking reasonable steps.
    • The Defendant need not actually take reasonable steps to discover the Owner;
    • Only to honestly believe that such action would be unfruitful.
  • The Defendant has a lawful right to deprive the Owner of the Property.

As to whether the Defendant’s belief was honest, see the Dishonesty Test in The Basics Deck.

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17
Q

Regarding Theft, what constitutes ‘Intention to Permanently Deprive’?

A

Intent to treat the Proprety as one’s own to dispose of, regardless of the Owner’s rights. This may include:

  • Ransoming the Property;
  • Rendering the Property useless;
  • Selling the Property back to the Owner;
  • Inviting to treat in a manner that risks losing the Property;
  • Borrowing or Lending for a period and under circumstances that make it equivalent to an outright taking or disposal; or
  • Parting with the Property under a condition they may be unable to fulfill, for one’s own benefit and without the Owner’s consent.

More than simply dealing with the Property is required.

Regarding Borrowing and Lending, the main consideration is whether the Property’s goodness, virtue and practical value is retained.

18
Q

What is the Legal Position on the Theft and Return of Fungible Property?

A

If one returns different items of equivalent value, an intention to permanently deprive is still present.

19
Q

What are the Elements of Robbery?

A
  • Actus Reus : Theft through the use, threat, or intention to threaten Force then and there.
  • Mens Rea : Intent to use Force to steal.

The use, threat, or intention to threaten Force must be either immediately before or during Theft.

20
Q

Regarding Robbery, what constitutes ‘Force’?

A

Any amount of physical force, applied directly or indirectly.

There is no need for the Victim to fear Force.

21
Q

Regarding Robbery, must the Person Threatened be aware of the Threat?

A

No. So long as the Defendant intends the Victim to apprehend Force to facilitate the Theft.

22
Q

Regarding Robbery, must the Threat of Force be directed to the Victim?

A

No. It can be directed toward any person, so long as it is to facilitate the Theft.

23
Q

Regarding Robbery, if Force is Used or Threatened after Theft, when may the Defendant be found Guilty?

A

When the Continuing Act Principle applies.

24
Q

Regarding Robbery, must the Person to whom the Threat of Force is made be Present?

A

Yes. Otherwise, they cannot possibly apprehend it, and the relevant Offence is Blackmail.

This is the, “then and there,” part of the Actus Reus coming into play.

25
Q

What are the Elements of §9(1)(a) Burglary?

A
  • Actus Reus : Entering into a Building, or part thereof, as a Trespasser.
  • Mens Rea :
    • Intent or Recklessness as to Trespass; and
    • At the time of entry, Intent to commit Theft, Criminal Damage, or causing GBH on anyone inside.
26
Q

What are the Elements of §9(1)(b) Burglary?

A

Actus Reus :

  • Entering into a Building, or part thereof, as a Trespasser; and thereafter
  • Attempting or committing Theft or causing GBH on anyone inside.

Mens Rea :

  • Intent or Recklessness as to Trespass; and
  • At or after the time of entry, Intent to commit Theft or cause GBH on anyone inside.

The infliction of GBH need not amount to §18 or §20.

27
Q

Regarding Burglary, what constitutues ‘Entry’?

A

Any part of the Defendant’s body entering the Building or part thereof.

28
Q

Regarding Burglary, what constitutes a ‘Building’?

A

A structure of considerable size, intended either to be permanent or to endure for a considerable time.

Habitation and business use are two frequently central considerations.

29
Q

Regarding Burglary, what constitutes a ‘Trespass’?

A

Entry without consent or in excess of authority.

Where the Defendant is not a Trespasser at the time of entry, but later becomes one, there can be no conviction for Burglary.

30
Q

What are the Elements of Aggravated Burglary?

A

Actus Reus :

  • Committing Burglary while knowingly having on one’s person:
    • A Firearm;
    • An Imitation firearm;
    • A Weapon of Offence; or
    • An Explosive.

Mens Rea :

  • Burglary.

Either §9(1)(a) or §9(1)(b) shall suffice, but the issue of when the Defendant had the weapon differs:

  • For §9(1)(a), Entry is the material time.
  • For §9(1)(b), Commission is the material time.
31
Q

Regarding Aggravated Burglary, what constitutes an ‘Imitation Firearm’?

A

Anything that has the appearance of a Firearm, whether capable of being discharged or not.

Note that airguns and airpistols are included in the definition of ‘Firearm’.

32
Q

Regarding Aggravated Burglary, what constitutes a ‘Weapon of Offence’?

A
  • Any article made or adapted for causing injury or incapacitation; or
  • Any article intended by the Defendant for those purposes.
33
Q

Regarding Aggravated Burglary, what constitutes an ‘Explosive’?

A

Any article made for explosion or intended for that purpose.

34
Q

What are the Elements of Fraud by False Representation?

A

Actus Reus :

  • Making a False Representation.

Mens Rea :

  • Dishonesty as to False Representation; and
  • Intent as to make a gain for oneself or another; or
  • Intent as to cause a loss to another or expose them to the risk thereof.
35
Q

Regarding Fraud, what constitutes a ‘False Representation’?

A

An untrue or misleading statement of fact, law, or state of mind, communicated either expressly or impliedly.

An Implied Representation may arise from the Defendant’s words or conduct, but not their silence.

36
Q

Regarding Fraud, when will a Representation as to State of Mind be proven False?

A

If it can be shown, in fact, that the Defendant did not:

  • Hold the given sentiment; or
  • Intend to follow through with certain conduct.

This is more readily proven if the Defendant is in a better position to express the belief or opinion.

37
Q

When will Overcharging be considered Fraud by False Representation?

A

When there arises an Implied Representation that the price is fair, usually because there is circumstances of mutual trust between the Parties.

Such circumstances are not inferred lightly.

Fraud by Abuse of Position is also possible under these circumstances.

38
Q

Regarding Fraud, can a Defendant make a False Representation to a Machine?

A

Yes, e.g. by illegaly impersonating someone at an ATM.

39
Q

Regarding Fraud, what constitutes Dishonesty?

A

Subjective Limb:

  • Subjective Knowledge or Belief of whether the Statement was Untrue or Misleading, and its Consequences.

Objective Limb:

  • Objective Evaluation of the Conduct as Dishonest by Ordinary Standards of Decency.

Accordingly, a clear caveat negates False Representation.

40
Q

What are the Elements of Fraud by Failure to Disclose?

A

Actus Reus :

  • Failure to Disclose Information in Breach of a Disclosure Obligation.

Mens Rea :

  • Dishonesty as to Failure to Disclose; and
  • Intent as to make a gain for oneself or another; or
  • Intent as to cause a loss to another or expose them to the risk thereof.
41
Q

What are the Elements of Fraud by Abuse of Position?

A
  • Actus Reus :
    • Abuse of one’s position as overseer of another’s financial interests.
  • Mens Rea :
    • Dishonesty as to Abuse of Position; and
    • Intent as to make a gain for oneself or another; or
    • Intent as to cause a loss to another or expose them to the risk thereof.

Abuse may constitute either an act or omission.

A Fiduciary Duty is not required, but an objective duty akin thereto is. A Judge will determine whether the facts allow for such a duty to arise, and the Jury will determine whether that in fact occurred.

(FLK2) Criminal Law (7 decks)

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