Theft S219

Question 1

Property offences

Answer 1

•Theft offences
•Obtaining by deception
•Robbery
•Burglary
•Blackmail

Tricky area of law

Based on codification of ancient common law in a different society and then we have poked in modern concepts → so can be counter intuitive at times.

Has not changed since codified in 1893 (Theft) → then grafted on the provision →modern concepts of ownership and plug gaps in the way theft operated.

Question 2

Origins of the law on theft:

Answer 2

•In feudal times possession was more important than ownership
•State was not thought to have a particular interest in protecting private property (the role of the civil law). It was concerned with the maintenance of public order.

•Should every property infringement have a criminal justice response?

English property offences evolved during fuedal times → in fuedal times no modern ideas of ownership → was to possess and use property → not like it is now.

Original law → take something away from someones possession → taking possession CA s219

Theft → infringe modern property rights.

Law of theft → A taking of physical property → then using and dealing with that property (modern ownership concept).

Old provision → state did not have obligation to protect property, private owners need to protect it → still have insurance, safeguarding, → and these things require owner to bear the cost to safeguard property

In old days → theft was not for preserving property → if someone took your property you would deal with it → but before protecting property when it leads to physical violence → can escalate → if i sneak it from you it is not something that can lead to violence.

So if taken with consent no theft → even if owner was fooled or fraud → because no physical confrontation → but today that is archaic → state has to protect our property.

The system of Private property in NZ is not equal → 10% of NZrs own 59% of the country’s assets →

40% middle class own 39% →

Then 50% of NZ that own 2%.

Should the state be enforcing property rights → benefits supporting a small amount of people →

Property is not equal → egalitarian society.

The police dont respond to every property offence → unless it is worth alot. → no need to expend police resources.

Question 3

Two types of theft:

Answer 3

•Theft (s 219)
•Theft in a special relationship (s 220)

Original theft provision s219.

220 → plugs gaps into 219.

Question 4

Section 219(1):

Answer 4

“(1) Theft or stealing is the act of, -
(a) dishonestly and without claim of right, taking any property with intent to deprive any owner permanently of that property or of any interest in that property; or
(b) dishonestly and without claim of right, using or dealing with any property with intent to deprive any owner permanently of that property or of any interest in that property after obtaining possession of, or control over, the property in whatever manner.”

General offence of theft → act of dishonestly or without claim of right…

Taking any property → possession thing.

Using or dealing → about infringing ownership rights.

Question 5

Two forms of theft:

Answer 5

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

Taking of property, and using or dealing with it.

If consent then no taking of property → dealing with it without taking.

Question 6

Section 219(1):

Answer 6

“(1) Theft or stealing is the act of, -
(a) dishonestly and without claim of right, taking any property with intent to deprive any owner permanently of that property or of any interest in that property; or
(b) dishonestly and without claim of right, using or dealing with any property with intent to deprive any owner permanently of that property or of any interest in that property after obtaining possession of, or control over, the property in whatever manner.”

Question 7

Actus reus:

Answer 7

•The thing must be “property”
•It must be owned or possessed by someone
•Taken from someone’s possession or used or dealt with
•The taking or using or dealing is without consent (of the person in possession or the owner)

Actus reus for theft → the item must be property, must be owned or possessed by someone other than offender (can have multiple owners and steal from co owner), take from someones possession, or use or deal with that property.

Taking or using and dealing → has to be without consent.

Question 8

Mens rea:

Answer 8

•Intend to take, use or deal with the property
•Dishonesty
•Without claim of right
•With intent to deprive the owner permanently of that property or of any interest in that property
•
No need to prove benefit to defendant or loss or damage to victim. Property does not need to be valuable (although relevant to maximum sentence)

Working through the actus reus elements

Mens rea → have to intend to take use or deal
Dishonest
No claim of right

Dont have to prove benefit in any way or victim had some loss → and the property does not need be valuable → but valuability does effect the sentence.

S223 → sentencing, value of property → up to $500 → three months → over $1000 → max is seven years.

Livestock or animals → s222A

Actus reus elements (work through)

Question 9

Property: Section 2:

Answer 9

•“includes real and personal property, [money, electricity,] and any estate or interest in any real or personal property, and any debt and any thing in action, and any other right or interest.”
•
•
•
•Davies v Police (2007) 23 CRNZ 818

Property is defined non exhaustively (relatively)

It includes real and personal property → money, electricity, and any estate or interest….

Under old days → property had to be tangible and movable, → if its not physical or movable cant do it.

But now it can be incorporeal → like a chosen action or a debt → a contract →

It still has to be property according to civil law → but property is extremely broad.

Davies → stole internet usage → can only use internet at work for work matters → used it to download porn → Court said data transmitted using internet services, as measured in megabytes is property → and different from the information conveyed from that → megabytes are a thing in action and are therefore property.

Question 10

Dixon v R [2015] NZSC 147:

Answer 10

•Was footage from a closed circuit television in a bar “property”?
•Court of Appeal said digital files are “pure information” and information is not property.
•Supreme Court disagreed: The digital files are property and not simply information. They are identified, have a physical presence (alter the physical state of whatever medium they are stored on) and a value and can be transferred to others.
•Fundamental characteristic of property is that it is something capable of being owned and transferred.

Dixon v R → law on property expands the law on theft →

Dixon → minor member of royal family came to nz to play rugby, and caught in security camera in a bar who was not his wife → Dixon downloaded (employed at pub), and downloaded security file to sell it → does a data file fit into property in s2 → CA appeal disagreed → Said information is not property → these files are purely information → even if copyrighted not property → just gotten information → would be super broad if information.

The bytes cannot be distinguished from information → Stored sequence of bytes to show the thing on the monitor → if include information would disengage freedom of speech → went up to SC → and SC disagreed.

SC → Said it wasnt prepared to say information is not property → and said digital files were property → fell within → property rather than information → as they could be identified, had a value, could be transferred → had physical presence but not that can be detected by unaided senses.

Question 11

No property in a dead body:

Answer 11

•Takamore v Clarke [2012] NZSC 116
•Police v Williams [2018] NZDC 20650

Takamore → no property in a dead body → mana or dignity of human beings → humans cannot be treated as proeprty.

R v kelly → English CA → can steal preserved body parts → royal college of surgeons stored these parts → accepted that corpse can be stolen, but parts of body can be property, if → for example had been dissected, preserved, for teaching purposes, stopped being part of the body. HUman labour turned them to property.

Value in terms of transplant etc. →

Not clear if this followed in NZ

One case said in nz that this was not followed (UK case)

In Police v Williams → defendant attended exhibition which had plasticised dead bodies, and took two toes, which became severed, put them into his pocket → charged with theft, and improperly dealing with dead body → justice hastings → both charges cant exist → either a body or not a body → the police chose to drop the theft charges.

Rules around animals → cant steal shellfish, unless in marine farm etc → if in sea without clear markers then cant steal them → things that are contained and are not etc.

Question 12

Section 218: Owned:

Answer 12

“(1) For the purposes of this Part, a person is to be regarded as the owner of any property that is stolen if, 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.”

Ownership → additionally to property it must be owned by someone.

For purposes of this part…

BRoad definition of property → have right to take it, and have an interest in it might be owning the property.

Question 13

R v Saxton [2009] NZCA 498: customary rights:

Quick scenario to consider:

Answer 13

•I pawn a diamond ring with a pawnbroker: I give them possession of the ring and make a pledge
•I fail to meet the pledge conditions
•I take the ring back
•Have I stolen from the pawnbroker?

Saxton → greenstone and pumaro by father and son, claiming to take it because daughter was in relo with local hapu → trial judge said owned by customary rights by ngai tapu → and not given daughter allowance to take it

Went to CA → found that customary rights had been overturned by legislation → but didnt overturn the notion that property rights could be based in customary rights.

Various pieces of legislation.

The court even endorsed that customary rights not extinguished by statute still exist → and could potentially cover the law on theft.

Scenario →

The answer is yes.

Question 14

Co-owners:

Answer 14

•Section 218(2) “An owner of any property may be guilty of theft against another owner of that property.”

Confirms that a owner may be guilty of theft against another owner → given a security interest → i have entitled them to hold it, if i take it, even though i am legal owner i have destroyed their security right → i am stealing it even though i am the owner of that ring.

Question 15

Abandoned property?:

Answer 15

•Williams v Phillips (1957) 41 Cr App R 5

Abondoned property → difference between thing that is abandoned → and a thing that is lost which still has an owner and can be stolen.

WAllet → most likely owned by someone

Battered down wallet no money → most likely abandoned.

Can steal from someone unknown.

Before abandoned → have relinquish all claims → and nobody has proprietary interest in it.

Stuff left on streets for rubbish collectors

Williams v phillips → Employed by local council to go around picking up rubbish, but were recycling → separated out things like rags, wool etc → they said nobody owned it the owners had abandoned → the householders retained (court), possession of items until picked up by council, and they were acting like council → they left it out only for council → until the council takes it it is the householders.

So property is unlikely to be abandoned.

Question 16

Lost property:

Answer 16

•Hibbert v McKiernan [1948] 2 KB 142 (English case)
•Intended to exclude others from interfering with the balls
•It had a degree of power over the balls which was sufficient to give effect to such intent
•
•R v Ellerm [1997] 1 NZLR 200

When it is lost people can still retain ownership in it → Hibbert v Mckiernan → private golf club, and members could play golf, and lost their balls → defendants trespassed on club grounds, found golf balls and sold them → Court said club had special interest in golf balls, even though abondonded → because it was sitting on their land and intended to exclude others → and they had security guards to stop people coming in which emphasises this point. → they had a property interest.

R v Ellerm → Remu logs which had been abandoned by logger or operator of sawmill which had previously existed on the sawmill of this lake → tourist development, person doing tourism, got the logs out and recovered them from bed of lake → and the Court said that the Crown had ownership in those logs even though they didnt know it existed. → because it had stewardship over the seabed under the Conservation Act. → had proprietary interest → so theft to take them.

Question 17

A taking or using or dealing:

Answer 17

•Unlawful interference with possession = a taking. No taking if the accused got possession with consent.
•Possession or control lawfully obtained but the goods subsequently misappropriated in contravention of the victim’s legal rights of ownership = using or dealing. Under previous law was called conversion. No conversion if the accused originally got ownership as well as possession or control because they cannot steal from themselves.

Property, is it owned.

Then taking physical possession without consent, or using or dealing without consent

Taking → getting possession without consent, no ttaking if owner consents, even if they have been lied to and consenting under fraud.

If you do get possession lawfully → and then use it inconsistently against the rights of the owner → then that is a using

If When you take possession → you also get ownership → so if ownership passes with possession then there cant be a theft → because cant steal from yourself → if they get ownership, → cant deal inconsistently with your own rights.

When physical possession passes, does ownership pass as well?

Question 18

A taking: section 219(4):

Answer 18

•For tangible property, theft is committed by a taking when the offender moves the property or causes it to be moved.

Tangible property if dealing with taking → movement can be slight → cases where earing got out of ear tangled in others hair.

Move from one persons truck to another → any slight moving can be a taking.

For taking to constitute a theft —> it must be without consent → even if consent with fraud then not theft.

Question 19

Without consent: section 219(3):

Answer 19

•“In this section, taking does not include obtaining ownership or possession of, or control over, any property with the consent of the person from whom it is obtained, whether or not consent is obtained by deception.”
•
•Consent obtained by fraud = consent
•Consent must be freely given: Parker [1991] NZLR 365

If someone consents under threat of violence, coercion vitates consent → cosnent has to be freely given →

Question 20

A using or dealing:

Answer 20

•Police v Subritzky [1990] 1 NZLR 717
• R v Russell [1977] 2 NZLR 20
•Police v Moodley [1974] 1 NZLR 644
•Broom v Police [1994] 1 NZLR 680

Common law of theft was built around taking property → but added a using or dealing.

Using or dealing used to be conversion → inconsistent with ownership rights.

If you come into possession with consent, can commit theft by dealing with that property with the mens rea for theft → as long as you dont come into ownership → because if owner you cant deal with it inconsistently with yourself.

Conversion

Subritzky → walking with four year old home, daughter had played with dolls tram, and let child play with it, and said sorry i was meaning to take it back, here it is → but played with it a lot → no longer new and couldnt be sold → came into possession unwittingly → became aware afterwards → no mens rea for taking → but when she allowed played with it. That was a using or dealing after coming into possession with it lawfully.

R v Russel - Defendant hired an air compressor from air hire centre with a false name → painted over the air hire centers logo and didnt return it → they had recorded his licence plate → police talked to him → then found it outside their property → him painting it → so using and dealing amount to a theft.

Moodley → handled a book, staying on the premisses of bookshop and police manual, and threw it into a drawer → and was found that was not sufficient to prove he was using it as his own, the police owned it → under no obligation to return it to the police

Broom → defendant seen a reward offered for a bike, contacted the owner saying reward money, got the bike off the person who had offered it to him, broke it up into pieces, and made owner go through elaborate shade → and left money under rock etc → the Court said no theft, had got owner agreement, to get his bike back, → wasnt using and dealing inconsistent with right to owner.

Question 21

Mistakes:

Answer 21

•Unilateral – the person handing over the property has made a mistake but the person receiving it has not
•Mutual – both parties have made the mistake
•
•Question = does ownership pass with possession? If so, no theft.
•Governed by the civil law on property. Ownership generally passes with possession when this is intended.

Does ownership pass with possession → because if yes, then then there can be no theft, possession with consent and then ownership with consent.

Determining when title or ownerhsip passes is for the common law →

i
f personal property → ownership passes with possession if that is the intention of the parties → if giving something to keep them transferring. → if giving something to borrow then no ownership transfer.

Question 22

Fungibles:

Answer 22

•The units are interchangeable – eg money
•Ownership assumed to pass with possession
•
•Money (operating as currency), produce, petrol

Special rules for fungibles → petrol for example, one litre of petrol is the same as another litre → it is assumed here that title passses with possession →

Money is a currency so medium of exchange rather than simply a physical object → then if used as currency than also assumes that title passess with possession.

So if i give you $20 dollars saying buy pies from pie shop → then they give back $20 → im not saying this is not the $20 i gave you, any $20 is the same as any other $20 → all there was was a civil debt relationship.

If you give anyone money → even if not intending to give that currency amount forever → you have given them those physical notes → and they cant steal them → best that can happen is that they owe you that money under civil law → If they don’t pay you they are not stealing form you → because you transferred that papers title over when you handed it over

Question 23

Runaway millionaires:

Answer 23

•Peter Watts and Anonymous, “Getting Lost in the Borderland of Theft: R v Gao and R v Hurring” (March 2013) 19 NZBLQ 31

Case where people charged with theft → peter watts argued that it was wrong even though charged with theft/

Mr Gow applied for overdraft of $100,00 but given $10 million dollars by mistake → Mr Gow, and Mr Herring, and saying you have made a mistake → they transferred to overseas bank accounts → and then withdrew cash in a series of eftpos transactions then they fled they fled the country → and then she came back with child they broke up → and he was extradited back to nz and then convicted of theft.

Peter watts → who is personal property lawyer and civil lawyer argued this was wrong → because when bank transferred money it was making a mistake about how much it should transfer, but totally intended to give them that money, and title passed with possession → owed $10 million dollars but were not stealing from the bank.

SECOND LECTURE TO CATCH UP:

Runaway millionares → Gao and Herring → transferred $10 million dollars instead of the $100,000 dollar overdraft that Mr Gao had requested → both convicted of theft

Peter watts and other academics criticised this decision → as even though there was a mistake it was an earlier mistake which affected the contract with the bank → but when transferred there was complete intent to transfer $10 mil.

The amount transferred was exactly the amount requested → Peter expert in civil law → that means the title in the 10 mil passed to MR gao and he just had a civil obligation to pay that money back

So wrongly charged with theft.

Question 24

s 5(4) of the Theft Act 1968 (UK):

Answer 24

“Where a person gets property by another’s mistake, and is under an obligation to make restoration (in whole or in part) of the property or its proceeds or the value thereof, then to the extent of that obligation the property or proceeds shall be regarded (as against him) as belonging to the person entitled to restoration, and an intention not to make restoration shall be regarded accordingly as an intention to deprive the person of the property or proceeds.”

S5 (4) of the Theft Act was enacted to get around the above

If there is a mistake in relation to the specific transaction and it is sufficiently fundamental to the intention to pass title to the specific goods that are passed over to the particular person that they were given to → this might be enough to vitiate a transfer in title.

Question 25

When will a fundamental mistake vitiate the passing of title?

Answer 25

•Mistake as to identity of transferee
•Mistake as to the quantity of the thing handed over
•Mistake as to the identity of the thing handed over
•
Illich v R [1987] HCA 1
Police v Dronjak [1990] 3 NZLR 75

The leading case for this is Illich and the Queen in HC aus → Case where a locum vet was paid $530 more than he was owed → and when he kept this he was charged with theft.

And the majority of the HC of australia looked at when a fundamental mistake will vitiate the passing of title.

They said there were three mistakes that were so fundamental even if title was intended to pass that intention would be vitiated by the nature of the mistake.

These were → a mistake as to the identity of the transferee → think giving it to one giving it to another

Mistake as to the quantity of the thing handed over → think giving one thing and handing two

Or mistake as to the identity of the thing handed over → intend to hand over one thing and you accidentally give someone the wrong thing

These are mistakes that are so fundamental that title doesn’t pass with possession

The majority in Illich added a qualification in relation to money → because money is a currency → and said that special rules apply to money

Because with money property passes with possession → you might want the value back but dont want to actual paper or metal you passed over

So The Majority held that so long as the transaction was bona fide a for value → property and money paid as currency passess over with possession even if there is a mistake as to the quantity of the money handed over.

So that is a qualification for to this rule on fundamental mistake in relation to money →

In this case → it was money paid in Bona fide and no mistake as to the identity of the transferee, or identity of the money → then the property was handed over →

That followed that the vet might have owed the money that he has overpaid but cant be guilty of theft for retaining it

Police v Dronjak → A person went into a shop and wanted to buy a car stereo and ended being two stickers on car stereo → one was right price and one was for a significantly lower price

So basically defendant went to the checkout and presented the box to the checkout operator with the low price showing not the correct price → and he was charged lower price, and he paid it then left the store

Question was was it a theft? → Court said it wasn’t → he was given possession with consent → so not a taking without consent → checkout operator had intended to pass title of the thing when he went through checkout →

No fundamental mistakes either → no mistake as to the identity of the thing handed over, no mistake quantity (one car stereo), and checkout operator knew he was a customer

Mistake was as to the value of the thing being purchased and that wasn’t enough to vitiate the passing of title.

What the judge did do was substitute a conviction of obtaining by deception → because he had deceived by presenting the object to them as though the lesser price was the price.

Question 26

Electronic transfers:

Answer 26

•Wilkinson [1991] 1 NZLR 403
•
•Nothing passes between the parties
•One chose in action is extinguished by the bank
•Another chose in action is created by the bank

Electronic transfers

There was a case of Wilkinson → which still stands for its discussion on electronic transfers

CA in Wilkinson said that when there is an electronic transfer when you transfer money to someone else electronically through bank transfer

Nothing actually passes between the parties →

For example that the accused borrows money from the victim → the victim transfers money to the accused via bank transfer →

the Court in Wilkinson said nothing actually passed from the victim to the accused.

What actually happens is the victim has a chosen action with the bank → agreement with the bank that they are entitled to present a demand to the bank for a certain amount of money.

That is the amount of money that they have in the bank.

That is a chosen action or a contract with the bank when i come up and ask for this amount of money you will give it to me or send it where i want

So when the victim makes an electronic transfer to the accused is they give instructions to the bank to change their contract with that bank → to reduce the amount of money they can demand from the bank → and form a new contract with the accused → that the accused can have access to that amount of money from the bank.

So in other words → there are various contracts happening but nothing tangible is happening → one chosen action that the victim has with the bank is extinguished and replaced by another →

And another chosen action is created by the bank with the accused.

So that is really important to remember for the law of theft → because the defendant does not get the property of the victim

So instead the position of each party with regard to their contractual rights to the bank changes

So that means it can’t be a theft → there is no property unless there is a theft from the bank → because there is no property that passes between the accused and the victim.

If the bank hands over property to the accused with the permission → intending to hand that amount of property over → there is no mistake that property title in that money passes with the consent of the bank → so there can be no taking without consent

There is no using or dealing without consent → because once they get that money they are the owner of that money

Mens rea elements of theft.

Question 27

Working through the mens rea elements:

Question 28

Theft: Mens rea:

Answer 28

•Dishonestly
•Without claim of right
•With intent to permanently deprive the owner of that property of any interest in that property

Theft → elements above.

Question 29

Dishonestly: section 217:

Answer 29

•“done or omitted without a belief that there was express or implied consent to, or authority for, the act or omission from a person entitled to give such consent or authority.”

What is meant by dishonesty → section 217 →

The prosecution has to prove that the accused → does not believe that they have legal authorisation or entitlement → either they knew they hadn’t had authority → or hadn’t thought about the matter → because that would be consistent with not having the necessary belief.

This test is subjective → it talks about belief which means the defendants actual belief → whether or not the belief is reasonable is just an evidentiary → the test is subjective

It must be established that they did not have this belief in fact.

Question 30

Under the old law dishonestly = fraudulently:

Answer 30

•R v Feely [1973] QB 530 (English case):
•“It is possible to imagine a case of taking by an employee in breach of instructions to which no one would, or could reasonably, attach moral obloquy; for example, that of a manager of a shop, who having been told that under no circumstances was he to take money from the till for his own purposes, took 40 p from it, having no small change himself, to pay for a taxi hired by his wife who had arrived at the shop saying that she only had a five pound note which the cabby could not change. To hold that such a man was a thief and to say that his intention to put the money back in the till when he acquired some change was at the most a matter of mitigation would tend to bring the law into contempt. In our judgment a taking to which no moral obliquy can reasonably attach is not within the concept of stealing either at the common law or under the Theft Act 1968.”

By way of history → prior to these amendments which took place in 2003 → the requirement was fraudulent rather than dishonest → and it was interpreted in a far wider way → than this new narrow definition of dishonesty

Fraud → understood as requiring moral dishonesty → which meant that the defendant could not be liable for theft if they thought they were morally justified in departing from their legal obligations even if they did not have permission to do what they were doing.

The concept of moral obloquy → We can see that in R v Feely → using what they mean by the concept of moral obloquy with this example

The court said it’s possible to imagine a case of a taking by an employee in breach of instructions to which no one could or would attach moral obloquy

For example → that of a manager of a shop that under no circumstances was he to take money from the till for his own purposes took 40 pents from it having no small change himself to pay for a taxi hired by his wife who had arrived at the shop saying she only had a 5 pound which the cabby could not change.

To hold that such a man was a thief in to say that his intention to put the money back in the till when he required some change was at most a matter of mitigation → would tend to bring the law into contempt

In our judgement a taking to which no moral obloquy can reasonably attach is not within the concept of stealing either at the common law or under the theft act

That was different back in the day → what that was saying was you could technically do a theft → you could take something without permission → but if it was the right thing to do in the circumstances and nobody would judge you for it → it wouldn’t be a theft.

This concept of fraud was designed to get rid of thefts which were legalistic thefts but nobody would morally consider to be thefts.

So borrowing a small amount of money → intending to pay it back because caught short in circumstances that nobody would blame you for doing that → Today that would be a theft → because shop assistant knows that they have not got permission → dont believe they have gotten permission to get that money

It might be different if they honestly thought that the employer had given them permission → would not be different if they thought that had the employee had asked they would be given permission → because that is premised on the idea that you know you havent asked them and you havent got permission.

So that is really changed → expanded the law of theft → changing that definition.

Question 31

Claim of right: Section 2:

Answer 31

•“’ in relation to any act, means a belief at the time of the act in a proprietary or possessory right in property in relation to which the offence is alleged to have been committed, although that belief may be based on ignorance or mistake of any matter of law other than the enactment against which the offence is alleged to have been committed.”

Second element is that there is not any claim of right

A claim of right is set out and defined in s2 of the CA to mean → in relation to any act a belief at the time of the act → or a right or possessory right in property in relation to which the offence is alleged to have been committed.

Although that belief can be based on ignorance or mistake of any matter of law other than the enactment against which the offence is alleged to have been committed

Basically what that means is you have to believe you have a property interest of some kind → does not have to be legal ownership in the property.

Question 32

Old definition:

Answer 32

•“means a belief that the act is lawful, although that belief may be based on ignorance or mistake of fact or of any matter of law other than the enactment against which the offence is alleged to have been committed.”
•
•R v Murnane, Land and Leason

The above was very different from the old definition again → many expansions of the law of theft via law reform

The previous definition amended in 2011 → just required an honest belief that what you were doing was lawful → did not have to be a belief → however wrong → that you had a property interest in the particular item of property → just had to have a belief that doing what you were doing with the property was lawful.

In both cases → this mistake can be based on a mistake of fact or a mistake of law → as long as it is not a mistake of law in relation to the enactment against which the offence is alleged to have been committed.

In other words → we are talking about the law of theft → as long as it is not a mistake on the law of theft → as long as you are not thinking for example that this is not theft → to mistakenly think the law of theft is different and that it allows you to do what you did is not a sufficient mistake on which to base your claim of right.

Previous definition was much broader → and it was changed in relation to this case of R v Murnane →

Murnane → three defendants → damaged a government intelligence facility that they believed was being used to assist illegal military action → they believed that information was being sent to the US → or this was a conduit for information to the US which the US was using to commit atrocities → in the Iraq War.

So they went in and damaged this to stop the US from getting this information so it couldn’t continue with its behaviour.

They believed that this behaviour on their part was justified → because they thought they were acting in defence of others according to international law →

Higher laws reflected in international conventions relating to torture in the conduct of war → and also thought they had a defence of necessity in the criminal law

They believed what they were doing was the correct thing to do and was justified. → either in criminal law or these international broader conventions.

The courts said this was an honest belief but this was mistaken → they did not have a legal defence but that didn’t matter.

So what happened was → the legislature changed the definition so they would not be able to assert a claim of right under the new law → because they knew that this wasn’t their property → and they weren’t property interest in this property → claiming a broader defence for damaging someone else property.

There has to be a nexus between the defendant’s beliefs and the actions charged → In other words → the claim of right has to be a belief that justifies the accused criminal actions.

The fact that the defendant believes that someone owes them property or monetary compensation isn’t a belief that they are entitled to retain property belonging to that person that accidentally comes into their possession

Has to be a belief in a proprietary interest in the property that you actually have.

Burt v Police → The Court summarised the requirements to assert a claim of right → defendant must have a belief in a proprietary or possessory

Question 33

Burt v Police [2012] NZHC 2551:

Answer 33

•(a) a belief in a proprietary or possessory right in property;
•(b) the belief must be about rights to the property in relation to which the offence is alleged to have been committed (not some other property);
•(c) the belief must be held at the time of the conduct alleged to constitute the offence; and
•(d) the belief must be genuinely held but need not be reasonable.

Burt v Police → The Court summarised the requirements to assert a claim of right → defendant must have a belief in a proprietary or possessory right in the property → that is a belief that means they think they have an element of ownership in the property → or a right to retain or claim possession of it.

Does not have to be legal ownership → some kind of proprietary or possessory interest. →

belief must be about rights to the property in relation to which the offence is alleged to have been committed. → this particular property → not some other property you are using this property to make a point with.

The belief must be held at the time of the alleged offending → and the belief must be genuinely held → must be honest → and does not have to be reasonable.

Question 34

Police v Minhinnick [1978] NZLJ 199:

Answer 34

Older case → Police v Minhinnick → Hard to decide the same way as above →

Case in which defendant took a very rare medal (from Rotorua City Council) → from a museum → medal awarded to a British officer who participated in the Taranaki wars → defendant was Ngati Rua Ngui → descendant of many of the people who had been killed in those wars and had their lands confiscated.

So huge trauma for Ngati Rua Ngui’s people → and the British man had been awarded a medal for participation in those wars.

When defendant looked at the medal he said → he felt his ancestors asking him to bring the medal and bury it with them where the battles had occurred → so they could forgive the people who had taken that land

The overwhelming emotion in him made him take it → he said that it gave him the right and OBligation to take that medal → and so he took it and he disposed of it in the way he believed he had been instructed to do so.

The magistrate said → the honesty of his purpose gave him a colour of right was at the time defined in section 2 of the CA → to mean a belief that the act was justifiable → the question today is not whether the act is justified in this bigger sense → it is question to whether you have a proprietary or possessory right → to that property.

Some people said could argue he wasn’t fraudulent because nobody would attach moral obloquy to what he did → was not for personal benefit → for much bigger spiritual and healing reasons.

But the way Honesty has been defined → he knew he didn’t have the permission of the museum → So the new law defined it in quite a narrow way → so you could no longer argue moral obloquy argument.

So Really you would have to find a property interest sourced in Maori customary law → if you were going to run this case and arrive at the same result.

Question 35

R v Langham (1984) 36 SASR 48
(South Australia)

Answer 35

You can make a mistake → believe you have a proprietary interest in property but not believe you have the right to take it in the way you do.

Langham (SA) → accused bought a crossbow from a sports shop for a lot of money → then realised he didn’t want it → he also was having financial difficulties → needed to move out of his flat etc.

So he tried to take it back to the shop → the shop said even though it was in the same condition as when he bought it → they didn’t give refunds they would give him store credit → credit to buy something else in same store.

So he went away → then came back → he used his credit to purchase a gun → then he menaced the manager and made the manager give him the remainder of his store credit in cash right down to the cents he was owed.

He had been charged with robbery → it was held by the Court that → robbery is theft with an assault → it was held by the Court that → his honest belief that he had a right to this cash claim of right and proprietary interest → meant that there was no theft involved → so was just charged for the assault component of what he had done.

Charged for threats with gun → downgraded from a robbery to an assault.

A claim of right → can be based on a mistake of law → but it can’t be based on a mistake about the enactment against which the offence is alleged to have been committed.

Generally a mistake of law can’t provide a defence in criminal law → so this is an exception to that rule.

But can’t make a mistake as to the law of theft → but could make a mistake as to title in civil law → and that would ground a claim of right.

For example in Brown and Edney v police → there were contractors who had laid down a concrete driveway → and then there was a dispute about payment → so they went back and dug up part of the concrete that they laid down.

And they were charged with criminal damage → they believed they still owned that concrete → (they thought) that title in that concrete didn’t pass to people who owned the land until they had been paid → They were wrong about that → because the title in the concrete immediately passed to the landowner whether or not they were paid →

What they were owed was just a civil debt → but nonetheless in civil law they were entitled to the benefit of that as a claim of right → because they were asserting a proprietary interest in the concrete → they thought they still owned it.

And that was enough to ground a claim of right (in the civil law).

Question 36

Intent to permanently deprive: 219(2):

Answer 36

•An intent to deprive any owner permanently of property includes an intent to deal with property in such a manner that –
•(a) the property cannot be returned to any owner in the same condition; or
•(b) any owner is likely to be permanently deprived of the property or of any interest in the property.”

Final aspect of the law of theft (mens rea component).

Intention to permanently deprive the owner → of the property of their interest → defined in section 219 (2) → to be an intent to deal with property in such a manner that

The property cannot be returned to any owner in the same condition;

Any owner is likely to be permanently deprived of the property or of any interest in the property.

That extends the previous law → not just an intention to never return the item to the owner → can also be an intention to use it in such a way that you are risking that it won’t be returned to the owner → or that it will be damaged or changed in some way.

So that section is broad enough to cover wear and tear → but it will be a question of judgement as to whether wear and tear is sufficient to change the condition of the property.

Subritski → women allowed child to continue using toy pram → so no longer looked brand new and could not be sold → that was sufficient to change the condition of that pram.

Previously → unauthorised borrowing was a real problem in relation to the law on theft → because if the person taking the property said they were planning to return the property back to the owner → they did not have the intention to permanently deprive the owner.

The exception to that is money → because even if intending to return the value you are generally not intending to return the exact same notes or coins → so forcing a substitution of different notes and coins.

So even if you have an IOU in relation to money → you will have an intention to permanently deprive the owner because you are giving them different paper or metal.

Law on theft is literal → mechanics of what is happening → not our idea of what is happening in relation to the value of currency.

In the old days → when someone was joy riding → borrowed car and drove till all petrol ran out → that would not amount to theft because they were planning to return the car or return it to the driver at some point → so would be liable for the theft of petrol usually.

So legislature enacted s226 of the CA. → created offence of conversion.

Under new definition for intention to permanently deprive (what amounts) → if planning to drive that car in such a way that you are risking that car being damaged or destroyed. → then that would amount to an intention to permanently deprive the owner → if only planning to drive it around sedately and eventually return it to the owner would still not have this aspect of the mens rea.

Question 37

S 226: Conversion of vehicle or other conveyance:

Answer 37

(1)Every one is liable to imprisonment for a term not exceeding 7 years who, dishonestly and without claim of right, but not so as to be guilty of theft, takes or uses for his or her own purposes or another persons purposes –
(a)any vehicle, ship, or aircraft; or
(b)any part of any vehicle, ship or aircraft; or
(c) any horse.
(2)Everyone is liable to imprisonment for a term not exceeding 2 years who attempts to commit the offence in subsection (1) of this section, or who, dishonestly and without claim of right, interferes with or gets into or upon any vehicle, ship or aircraft.

Could not be charged of theft of the car but could be charged with conversion of the car.

Can see that → that covers person who dishonestly and without claim of right but not so as to be guilty of theft → takes or uses → a vehicle → ship, aircraft or horse → even if planning to return that .

Question 38

Is there a theft?:

Answer 38

•Khylee is Hanna’s best friend and they have the keys to each others’ houses. Hanna goes to Khylee’s house but she is not there. She drinks half a bottle of scotch that is in the liquor cupboard, takes $20 from the kitty jar, and leaves a note saying “IOU half a bottle of scotch and $20. Hanna,” on the table.

Property, owned or possessed.

Money → fungible property

Property → expansive definition

Fungible → interchangeable things.

It is owned by Khylee.

Has it been taken from Khylee’s possession or used or dealt with → drunk scotch and taken 20 bucks so yes.

Has it been without Khylee’s consent? → Factually ambiguous → nature of friendship, implicit consent?, keys, → type of friendship depends → what are the implicit rules of the relationship → in the crim courts Khylee wasn’t having that sort of relationship.

Keys, and friendship may be implicit consent.

Intend to use… property → satisfied.

Has she done this dishonestly? → section 217 → Done or omitted without a belief (hannas honest belief) that there was express or implied consent → if hanna thought she had consent then she is not dishonest.

Then we have to establish no claim of right. → unlikely that she thought the scotch or $20 was hers, or she had some sort of right to it.

Did she intend to permanently deprive? → permanently deprive the scotch → she said i owe you half a bottle of scotch and $20. → does intend → because not giving her back the same scotch → forced a substitution of scotch without her consent.

With Fungibles we think interchangeable but law thinks they are not interchangeable.

But with money → did she have intent to deprive permanently of money. → she forced a substitution of that money without her consent. → because even if she pays it back it will be a different $20 from the one she had. → forced substitution without consent.

Would have been different if she had given Khylee the money. → transfer of title → if Khylee had given money over, title to that $20 would pass. → equivalent of value → title to that $20 would pass → if taken without consent then title hasn’t passed because she hasn’t given away title.

Would likely apply to scotch as well → With fungibles you don’t want this back so you pass over possession → so as long as you get the equivalent then it does not matter.

If we hand over a fungible → we are giving title away just want the equivalent value back → but different for thing that is not a fungible.

If title passess with possession then no use of dealing afterwards →

Question 39

Is there a theft?:

Answer 39

•Khylee is Hanna’s best friend and they have the keys to each others’ houses. Hanna goes to Khylee’s house but she is not there. She drinks half a bottle of scotch that is in the liquor cupboard, takes $20 from the kitty jar, and leaves a note saying “IOU half a bottle of scotch and $20. Hanna,” on the table.

Property, owned or possessed.

Money → fungible property

Property → expansive definition

Fungible → interchangeable things.

It is owned by Khylee.

Has it been taken from Khylee’s possession or used or dealt with → drunk scotch and taken 20 bucks so yes.

Has it been without Khylee’s consent? → Factually ambiguous → nature of friendship, implicit consent?, keys, → type of friendship depends → what are the implicit rules of the relationship → in the crim courts Khylee wasn’t having that sort of relationship.

Keys, and friendship may be implicit consent.

Intend to use… property → satisfied.

Has she done this dishonestly? → section 217 → Done or omitted without a belief (hannas honest belief) that there was express or implied consent → if hanna thought she had consent then she is not dishonest.

Then we have to establish no claim of right. → unlikely that she thought the scotch or $20 was hers, or she had some sort of right to it.

Did she intend to permanently deprive? → permanently deprive the scotch → she said i owe you half a bottle of scotch and $20. → does intend → because not giving her back the same scotch → forced a substitution of scotch without her consent.

With Fungibles we think interchangeable but law thinks they are not interchangeable.

But with money → did she have intent to deprive permanently of money. → she forced a substitution of that money without her consent. → because even if she pays it back it will be a different $20 from the one she had. → forced substitution without consent.

Would have been different if she had given Khylee the money. → transfer of title → if Khylee had given money over, title to that $20 would pass. → equivalent of value → title to that $20 would pass → if taken without consent then title hasn’t passed because she hasn’t given away title.

Would likely apply to scotch as well → With fungibles you don’t want this back so you pass over possession → so as long as you get the equivalent then it does not matter.

If we hand over a fungible → we are giving title away just want the equivalent value back → but different for thing that is not a fungible.

If title passess with possession then no use of dealing afterwards →

Question 40

Is there a theft?

Answer 40

•Hanna skates to the local dairy and buys some chocolate. She hands over $10 and receives the chocolate and what should be $8 in change. The shop assistant mistakenly thinks that Hanna has given him $20 and he gives her back change for $20 – one $10 note, one $5 note and the rest in coins. However, he makes a further mistake and gives Hanna two $5 notes instead of one because they happen to be stuck together.

One $10 note then accidentally given her two five dollar notes when supposed to give 1.

It is property → money.

It is owned and possessed by someone → yes.

Is it taken or used or dealt with → possession has passed from shop owner to Hanna.

Has passing of possession been without consent of the owner? → Illich → owner has given consent, then the question becomes, have the made a fundamental mistake which vitiates their consent? → title passes also with money with possession →

Is the shop owners mistake vitiated consent to passing of possession or title?

In illich → three mistakes that were so fundamental → mistake as to identity of transferee (not giving it to hannah). Second → mistake as to quantity of thing handed over. Third → mistake as to the identity of what he is handing over, not money?

Not mistake as to the paper → handed over 1 $10 note → but mistake was the 2 $5 notes, as he handed over 2 →

Handed over the $10 with consent → and handing over possession also title → so hasn’t committed theft

Money bona fide and for money → Illich → not vitiate transfer of title of transaction bona fide and for value.

Question 41

Is there a theft?:

Answer 41

•Hanna goes out drinking and at some point cannot remember anything that happens over the course of the evening. When she wakes up she notices that she is wearing a gold watch. She cannot remember how she got it but decides that she likes it and will keep it. Security footage at one of the night clubs that she visited shows her taking it off a person who has passed out in the corner of the club.

Property. Owned and possessed → yes.

Is there taking without consent → intent to permanently deprive owner (mens rea) → when she decided to not give it back she meant to permanently deprive.

Person never gave it → zubritsky → theft can occur in one of two ways → can take possession without consent → but even if you came into possession innocently, can commit theft by what you do with it → made no effort to find the owner.

Basically she is using it inconsistently with the owner’s right.

Owner hasn’t given permission to deal with it this way.

Intention to permanently deprive → yes.

No owner permission

No possessory thought of right → but if she did then claim of right.

Question 42

Is there a theft?:

Answer 42

•Hanna goes to the Otara flea market and buys a pirated copy of a Disney movie. Hanna stops into work and downloads some music onto her memory stick. Her employers have told her on numerous occasions that she is not to use her internet at work for personal use.

Car is property → yes.

Owned or possessed → yes.

Does the mechanic have any ownership right over the car → ownership rights defined broadly → does the person have possession or control, interest in the property, right to take possession or control, → security interest → deal is cant pick it up until after repairs → proprietary right → does not own the car in law → has ownership rights in terms of the car.

Has Milton taken the car → has extinguished ownership rights without the mechanic’s permission → destroyed security interest → extinguished the security right → and that is the payment.

Mens rea? → he knew the mechanic hasnt given permission → did he have intent to permanently deprive → yes security interest.

Did he think he had the right → possessory right? → was their a claim of right → because he owns it → but the fact that he sneaked the keys without the mechanic looking goes against him.

Question 43

Is there a theft?

Answer 43

•Milton drops his car off to be repaired at the garage and is told that it will cost $5,000 to fix. He knows that he will be expected to pay before he picks up the car and that he does not have that amount – however, he really needs his car for his repair business and hopes he will come up with the money somehow. When he goes to pick up the car several days later, he takes advantage of the garage mechanic being distracted on the phone, picks up the key from the counter and drives out of the garage without paying for the repairs.