s 220 Theft by person in a special relationship Flashcards
Is the value of the property relevant to being prosecuted?
No
What are some examples of special relationships?
1 - Lawyer: funds in their trust fund
2 - CD: money raised from the public on very strict terms
3 - Liquidator: assets of the company winding up
4 - Rent collector banks: landlord’s bank account etc.
What are the Actus Reus elements?
1- D must have received/have possession/ control over the property
2- Terms which received/obtained possession/control required them to account to/deal with the property/proceeds in accordance with the requirements of another person
3- D accounted/dealt w property/its proceeds otherwise than in accordance w those requirements
How is the 1st AR element of control determined?
1- Don’t have to own it & doesn’t have to be in their possession
2- Have to have determined how property is going to be used & dealt with
In the AR case of R v Sullivan what was held?
Need to determine who has actual control & who making decisions re: company’s property
How is the 2nd & 3rd AR elements of control determined?
1- Req s1 2 come in2 prop on terms that require them to deal w that property due to 2 requirements of s1 else
2- CL requirements fiduciary ownership to property but you’re managing it on behalf of someone else
3- Having a fiduciary relationship & managing a person’s funds doesn’t mean u have a duty 2 account
R v Scale
Wasn’t TSR as didn’t receive the cheque on terms requiring him to account for it. Had debt pay it back.
R v Kirk
Took > commission than entitled, receiving funds on behalf of a draper. Not theft as ownership went to him but got $ on terms had pay comm& expected 2 a/c for what received. Had debt to draper.
R v Prior
Companies knew the company going into receivership, so withdrew all company funds. Every time Dir uses a c’s money doesn’t create an obligation to account to c. Specific fiduciary requirements always depend on circumstances.
Nisbet v R
2 people shareholders agreement. Mr N owned land thru another company & sold it to the new company. Misused funds so convicted.
What are the Mens Rea elements?
1- D knew requirements to account or deal w the property or its proceeds; and
2- D intentionally dealt w the property or any proceeds otherwise than in accordance w those requirements
3- People must know and intentionally deal
4 - Don’t have to know that the requirements constitute a special relationship, just have to know that the requirements exist
