s 29(1) Theft

Question 1

What is the definition of theft?

Answer 1

Taking any property or using or dealing with any property after getting possession or control over it

Question 2

Is there a need to prove benefit to the D for theft?

Answer 2

No

Question 3

Is there a need for loss or damage to the victim for theft?

Answer 3

No

Question 4

What are the AR requirements?

Answer 4

1- The item in issue must be property

2- It must be owned or possessed by someone other than the defendant

3-Taken from someone’s possession and/or use or deal with it

4-The owner or the person in possession must not consent to the taking or the using and dealing

Question 5

In the 1st AR requirement, how is property defined?

Answer 5

S 2

Real &

personal property (money, electricity) or

any estate or interest in real or
personal property &

any debt &

any thing in action &

any other right or interest.

Question 6

What does the case Davis v Police say about the definition of property?

Answer 6

Internet is property as it can be measured in megabytes.

Cannot be charged as theft in a special relationship as no FD & internet was only managed in the interest of the employer.

Question 7

What does the case Dixon v R say about the definition of property?

Answer 7

Digital files are not information (which is not property), as identified, have a physical presence etc

Question 8

What do the cases Takamore v Clare and Police v Williams say about the definition of property?

Answer 8

No property in a dead person.

Question 9

In the 2nd AR requirement, how is property defined?

According to s 218, what is the definition of owned?

Answer 9

1) at the time of the theft, that person has –
(a) possession or control of the property; or
(b) any interest in the property; or
(c) the right to take possession or control of the property.

Question 10

What did obiter dicta in the CA case R v Saxon say about ownership?

Answer 10

If customary rights had existed, they would be covered on the law on theft

Question 11

In reference to property, how do you know if it is abandoned?

Answer 11

Hard to find due to extremely broad definition of ownership

owner has relinquished all claims & interest to control the property.

No one is interested in it or taking ownership of it

Question 12

What case is abandoned property?

Answer 12

Williams v Phillips
Rubbish still owned by owners then corporation

rubbish collectors who privately sold some stuff from the rubbish. Court held that it was theft as it was still owned by the owner before ownership was passed to the corporation when they picked it up.

Question 13

People can be charged with theft from a person unknown?

Answer 13

Yes

Question 14

What are the cases where theft was held but property seemed to be abandoned?

Answer 14

Hibbert v McKiernan
Private golf club had an interest due to power over balls.

R v Ellerm
Crown had property/possession of abandoned rimu logs

Question 15

How is taking, using or dealing defined?

Answer 15

Under s 218 (4)

Question 16

What is taking?

Answer 16

tangible property = offender moves/causes to move the property

Consent obtained by fraud = consent

Question 17

What does the case Parker say about taking?

Answer 17

Consent must be freely given

Question 18

What is using or dealing?

Answer 18

1. Requires a using or dealing with the property after obtaining possession over the property by any means whatsoever
2. A using or dealing similar to conversion (conversion was the word that used to be used in the statute)

Question 19

What does the Police v Subritsky case say about using?

Answer 19

D went to a toy shop, didn’t notice her child take pushchair. Next day pushchair was not able to be put back in the shop. Allowing her child to continue using the pushchair without paying for it was the issue.

Question 20

What are the 2 types of mistakes in theft?

Answer 20

Unilateral mistake: only person handing over the property made a mistake

Mutual Mistake: both parties have made the mistake

Question 21

When is a mistake vitigated in the Ilich v R case?

Answer 21

A mistake will vitiate the passing of title when mistake is :

to the identity to the transferee

to the quantity of the thing handed over (mistakes as to quantity as in relation to money do not vitiate transfer of title if the transaction is bona fide and for value.)

to the identity of the thing handed over
Qualification: if there is a mistake as to the quantity of money if the transfer is real, genuine and for value, the property passes with possession irrespective of whether a mistake in relation to the quantity of money has occurred.

Question 22

What case did academic Peter Watts say was decided incorrectly in terms of mistake?

Answer 22

R v Gao

Decided incorrectly as there couldn’t be a theft because the transfer was done without mistake. Each transfer was legitimate, it was merely the amount that was wrong.

Question 23

What case was about title being transferred with no mistake to identity and no mistake to quantity?

Answer 23

R v Dronjak

Could not be convicted of theft as the intention when he was sold the property was to give him title. No fundamental mistake that vitiated the title. D couldn’t use/deal with property inconsistently as they were the owner. No mistake as to identity and no mistake as to the quantity.

Question 24

What case about electronic transfers about mistake?

Answer 24

R v Wilkinson

Didn’t involve a transfer of rights of property as nothing passed between the parties since it was an electronic transfer. This means that there could be no transfer of possession and whatever money D got belonged to them so they couldn’t use it inconsistently with the rights of the complainant.

Question 25

How is the 1st MR element of dishonesty defined?

Answer 25

s 2

Done or omitted without a belief that there was an express or implied consent to, or authority for, the act or omission from a person entitled to give such consent or authority

Question 26

What is needed to satisfy dishonesty?

Answer 26

1- Whether or not the D actually believed that they actually had the authority to do what they did with the authority.

2 -This must be an honest belief

THIS IS SUBJECTIVE

Question 27

What is required for a claim of right?

Answer 27

1- Must be proven by prosecution that there is no claim of right

2- Honest belief of proprietary right in that property = claim of right and does not have to be reasonable

3- Claim of right can only be based on mistake on civil property rights

4- Should be a nexus between the belief and the property

Question 28

What does case Burt v Police stipulate for claim of right to be found?

Answer 28

a. Belief in a proprietary or possessory right in property
b. Belief must be about the rights to the property in relation to which the offence is alleged to have been committed
c. Belief must be held at the time if the conduct alleged to constitute the offence
d. Belief must be genuinely held but need not be reasonable

Question 29

What case deals with honest belief?

Answer 29

Police v Minhinnick

Took medal to bury with ancestors so they could forgive the landwars. It was found that he had an honest belief so could not have committed theft.

Question 30

How is the MR element of intention to deprive the owner of any interest in the property state?

Answer 30

1- If property not returned in same condition, owner likely to have been permanently deprived of the property or any interest in the property

2- Criminalises dealing with the property in a way it is likely to be damaged and that the owner will not want it back

Question 31

What offence deals with intention to deprive the owner of any interest in the property?

Answer 31

S 226

conversion of vehicle or other conveyance;