Theft S220 Flashcards
Theft by person in a special relationship:
•220(1) This section applies to any person who has received or is in possession of, or has control over, any property on terms or in circumstances that the person knows require the person to –
•(a) account to any other person for the property, or for any proceeds arising from the property; or
•(b) to deal with the property, or any proceeds arising from the property, in accordance with the requirements of any other person.
Seven years imprisonment irrespective of value of property.
Meant to be dealing with property on someone else’s behalf.
Applies to any person who has recieved…
Theft by person in a special relationship:
220(2) Everyone to whom subsection (1) applies commits theft who intentionally fails to account to the other person as so required or intentionally deals with the property, or any proceeds of the property, otherwise than in accordance with those requirements.
220(3) This section applies whether or not the person was required to deliver over the identical property received or in the persons possession or control.
Actus reus:
•Received or had possession or control over property
•The terms on which the defendant received or obtained possession or control required them to account to, or deal with the property or its proceeds in accordance with the requirements of another person
•The defendant accounted or dealt with the property or its proceeds otherwise than in accordance with those requirements
Actus reus → received or had possession or control over the property → broad → not just in possession → if you can control it even if you dont have possession → for example director of company that owns property and they own that property.
In the old days white collar crimes were rarely prosecuted under property law → mainly working class.
This provision has changed that → when we had finance company collapses → many business owners were charged and went to prison → law of theft imprisoned white collar criminals.
Terms → given money on trust and then use it for yourself for example.
Mens rea:
•The defendant knew of the requirements to account or deal with the property or its proceeds; and
•The defendant intentionally dealt with the property or any proceeds otherwise than in accordance with those requirements
Defendant knew about these requirements → and then intentionally dealt with property not in accordance with those requirements.
Dont have to know you have special relationship → but have to know the terms → i need to do x y and z with this property etc. → if you think free of obligations then no breach.
Mens rea:
•The defendant knew of the requirements to account or deal with the property or its proceeds; and
•The defendant intentionally dealt with the property or any proceeds otherwise than in accordance with those requirements
Defendant knew about these requirements → and then intentionally dealt with property not in accordance with those requirements.
Dont have to know you have special relationship → but have to know the terms → i need to do x y and z with this property etc. → if you think free of obligations then no breach.
Covers situations that are not theft under s 219:
•The defendant became the legal owner of the property but on terms requiring them to deal with it for the benefit of someone else.
•The defendant never got possession or ownership of the property – they just had control over it.
Plugging gaps in law of theft.
Covering situations where no theft because person became legal owner → for example tenants payed rent in cash, go around and collect rent, then when i got the money, person payed rent in cash, could there be theft? Cant be theft as they are intending to pass possession and title → but can be via special relationship if holding by trust to give to landlord.
Landlord instructed me to do certain things → i didn’t act in accordance to that. → became legal owner but for benefit of someone else.
For example owned or directed company → they own money → then i make them do things that breach public documents → trust deeds etc. → if you put money into company then director will do certain things with this money and use it on behalf of company → when they investigated they found that they were doing things with money in contravention → conflict of interest → lending money to other people etc. → owned by company → they had control over it → acted in breach of terms → did not use it in respect of trust documents to use it in certain ways.
Can terms be implicit → for example receiving money as a solicitor.
Can be legal owner and still be guilty under s 220.
Control = actual control:
•R v Sullivan [2014] NZHC 2501
Control → means actual control → practically looking at what can happen to the money.
STUDY COMPANY LAW!!!!!
Sullivan → who has actual control → not just formal arrangements → looking at actual control → who in practice gets to determine →
Sullivan → the mere fact that someone holds office as director does not simply prove, need a more extensive analysis → it is possible for non director to have control over use of funds → shadow director → further control may be excercised by executive who has power to do so → can be small businesses as well → for example Joe smith the Plumber → if you put money into company then assets have more protection → the company goes bankrupt, you don’t → If the house is owned by you and not the company then it cant be taken by creditors.
Sullivan → if the lower hierarchy manager is managing funds on behalf of someone else can have control even if they are not a super boss higher up in the hierarchy.
A requirement to account or deal:
•R v Scale [1977] 1 NZLR 178 – requires more than a simple debt situation.
•R v Kirk (1901) 20 NZLR 463 – received money from customers on behalf of a business – expected to account for what he received.
•R v Prior [2002] 1 NZLR 526
•Tallentire v R [2012] NZCA 610 – the company’s debenture trust deed placed restrictions on the manner directors could deal with company funds.
•Nisbet v R [2011] NZCA 285
•Whale v R [2013] NZHC 731 – generic obligations governing the manner in which business is done cannot form the basis for liability under s 220.
•McGurk v R [2015] NZCA 148
Requires more than a simple debt situation → Get the property but earmarked by someone else.
The Courts have drawn a distinction between legal and beneficial benefit → for example, borrowing money from bank, money is not earmarked for bank while i am holding it → What we are talking about is if defendant had legal ownership.
Have to use specific property for a defined purpose.
R v Scale → court held that person did not receive money on obligation to account → scale received check that was written to business → and computer wrote it wrong and sent checks to people it shouldn’t have → he paid the check into his account and used it for his own purposes → The Court said he had an obligation to repay the money but had not received it on behalf of company, just had to repay the money.
Draper → customers would pay a deposit → collect that money then give it to the draper → was filtering some of it for himself → was it breach of obligations to draper → getting money on behalf of draper → was not obliged to give draper the amount of money and do what he wanted under interim → Was held under specific terms → situation where he had obligation to deal with money in accordance to draper.
Can be expressly negotiated or convened on how the person comes to the property → are acting on behalf of employer for the employers money.
Solicitor → receiving clients funds in obligation of dealing with their money.
Liquidator → company liquidating assets → always receiving to deal with them on behalf of company → not just contractor and you can do what you want in interim → does not arise just because you have a fiduciary relationship → you have to have attachment to property.
R v Prior → realised company was bankrupt → had to pay staff → and pulled money out before it was liquidated → Court said moeny was not earmarked → and obligation had to attach to that property → has to be specific requirements attaching to the use of property in issue.
R v Tallantire → obligation on trustee’s → restrictions for what companies can do in relation to funds → if use money inconsistently in relation to trustee → not allowed to use company funds in contravention of that obligation.
Nisbet v R → Situation where man owns money on behalf of his company → wanting someone else to invest so forms a new company W limited, then arrangement with Mr warbrand, and they agree that he will invest money into w limited, nisbet will run it, and w limited will buy the land of him → and nisbet is director of W limited → moving into new company but this time they have a shareholder.
They had a shareholders agreement → and they also came to a personal arrangement that they will honour under all circumstances → w limited took a loan to buy land of other company → use GST refund to buy in agreement → Took out loan to pay W ltd gst refund instead of paying out loan
Shareholder agreement
Court held → was combination of terms in agreement and oral agreement, all of that had given obligation for MR Nisbet to account for money in the way he said he should
Whale → generic obligations vs specific requirements → example of generic is that you will carry on business in prudent or businesslike manner, or carefully → not specific → and not requirement in respect of property.
Generic obligations are not enough.
The mens rea is limited compared to theft —> no requirement of dishonesty → only have to prove you knew the terms and you knew you were breaching them → consciously dealing with money knowing what the terms were → no proven special relationship just prove the terms.
McGurk case → Company went bust → and obligation to keep personal funds from business funds → he had an obligation to manage the funds, and had to honour the legal obligation → could not deal with the money how he wanted.
