51 TOPIC: PROPERTY OFFENCES
PART 1: THEFT
1. THEFT
[Defendant] will be charged with theft. To be found guilty, the prosecution must prove BRD that [defendant] dishonestly appropriated property belonging to another with the intention to permanently deprive (s72 CA).
1.1 Property
[Defendant] cannot be guilty of theft if he/she has not appropriated property. Property includes money and all other property, real or personal, including things in action and other intangible property (s71(1) CA).
1.1.1 Money or personal property
The facts indicate that [defendant] has taken [insert specific amount of money or item], which is [money/personal property]. This clearly comes within the definition of property in s71(1) CA.
1.1.2 Real property i.e. land
The prosecution will argue that [defendant] appropriated [insert land], which is real property within the definition of s71(1) CA. Land and things forming part of land can only be stolen in the circumstances specified in s73(6) CA. a) Where D is authorised to sell or dispose of land belonging to another; b) Where D severs something from the land; c) Where a tenant appropriates a fixture or structure let to be used with the land.
This will/will not be satisfied, as [insert facts].
1.1.3 Intangible property
The facts indicate that [defendant] has taken [insert item], which is intangible. This will only come within the definition of property in s71(1) CA if it is a chose in action.
Choses in action (property) Other intangibles (not property) § Debts (Lloyd) § Electricity (Low v Blease). However, fraudulent § Cheques (Parsons) – include both tangible property abstraction, wastage, use, diversion or consumption (the physical paper) and a chose in action. of electricity is punishable as theft through s107 § Electronic funds transfers (EFT) (Preddy). State Electricity Commission Act. However, since an EFT entails the creation of a new § Confidential information (Oxford v Moss). chose in action, it cannot be property belonging to § Phone services (Akbulut v Grimshaw) another.
52 1.1.4 Animals
Animals, whether tamed or untamed, are regarded as property (s73(7) CA). However, they can only be stolen in the circumstances outlined in s73(7) CA.
® Where the animal has been tamed or kept in captivity; ® Where the animal has been reduced into possession and has not been lost or abandoned; ® Where a person is in the course of reducing the animal into possession.
This will/will not be satisfied, as [insert facts].
1.2 Belonging to another
For [defendant] to be guilty of theft, the property must have belonged to another (s72 CA). The prosecution will argue that this is satisfied, as [insert facts].
® Property ‘belongs’ to anyone who has possession or control of it, or who has any other proprietary right or interest in it (s71(2) CA). ® Accordingly, property may ‘belong’ to multiple people at one time. ® The prosecution only needs to prove that someone other than D had property rights, not the identity of the person who held those rights.
1.2.1 Property belonging to D
If [defendant] has complete ownership, possession and control of the property, he/she cannot steal it (Greenberg). This includes where another person has exercised an unlawful right to the property (Meredith). However, if another person has a lawful right to possession, control or a proprietary right to the property, [defendant] may be guilty of theft (Turner).
Relevant cases:
® R v Turner: D was having his car repaired at a mechanics, and took the car back without paying. This was held to be theft, as the mechanic had a lawful claim to possession/control. ® R v Meredith: D left his car parked on the road. The Police unlawfully towed and detained the car. D forcibly removed the car from the impound lot. He was held not guilty of theft, because the police did not have a lawful claim to possession/control.
On balance, the property will/will not be regarded as belonging to another, as [insert facts].
1.2.2 Intermingled property
[Defendant] will argue that he/she cannot be found guilty of theft, because [insert property] has become intermingled with his/her own property. Per Greenberg, where property is intermingled it becomes something new, and cannot be property belonging to another. This will/will not apply to the facts, as [insert facts].
53 1.2.3 Property on trust
Per CA s71(2) CA, trust property ordinarily belongs to the beneficiaries of the trust. However, where there are no beneficiaries, the property subject to the trust belongs to anybody who has a right to enforce the trust (s73(8) CA).
1.2.4 Property under an obligation
The facts indicated that [defendant] holds [insert property] subject to an obligation.
Where property is held under an obligation to retain and deal with the property in a particular way, it will be regarded as belonging to the beneficiary of the obligation (s73(9) CA). However, where there are no specific instructions as to how the money should be dealt with, it will not be property belonging to another (Hall).
[Insert property] will/will not be property belonging to another, as [insert facts].
Relevant cases:
® R v Hall: D was a travel agent who received funds from a client to book them a holiday. Instead, D appropriated the money. He was held not guilty of theft, as there were no specific instructions on how to deal with the money, therefore s73(9) did not apply. ® R v Meech: V gave D a forged cheque and asked him to cash it and pay the money into V’s bank account. D, realizing it was forged, cashed the cheque and then faked a robbery to appropriate the money. He was held guilty of theft, as he breached specific instructions on how to deal with the money. ® Re Attorney-General’s Reference: D was a hotel manager with an exclusive contract with a brewery to only sell their products and share the profits. D sold different beer and kept the profits, in breach of the agreement. However, there was no theft, as there was no separately identifiable property which D was under an obligation to restore.
1.2.5 Mistaken payment
The facts indicate that [defendant] was the recipient of a mistaken payment of [insert amount]. Where a person obtains property by mistake and is under an obligation to make restoration, the property will be regarded as belonging to another to the extent that the other party is entitled to restoration (s73(10)) CA.
® Since [defendant] was aware at the time that he/she was not entitled to the money, it will be property belonging to another (Gilks). ® Even though [defendant] was unaware at the time that he/she was not entitled to the money, it will be property belonging to another if he/she became aware and did nothing to remedy the overpayment (s73(10) CA).
1.2.6 Property of a corporation sole
Property of a corporation sole is the property of the corporation, even if the person is dead or the position is vacant (CA s73(11)).
54 1.2.7 Abandoned property
Property no longer belongs to a person who has intentionally relinquished all ownership rights (c.f. lost property).
1.3 Appropriation
For [defendant] to be guilty of theft, the prosecution must also prove that [defendant] appropriated [insert property] (s72(1) CA). [Defendant] will have appropriated the property if he/she assumed the rights of an owner (s73(4) CA), meaning he/she took on the right to do something which the owner has the right to do by virtue of their ownership (Stein v Henshall).
® Includes where D came across the property innocently and later assumed the rights (e.g. by keeping) (s73(4) CA) ® Does not include a BFPFVWN that the property has been stolen (s73(5) CA) ® Low threshold – D need not have assumed all the owner’s rights (Stein v Henshall; W v Woodrow)
The prosecution will argue that this is satisfied, as [insert facts].
1.3.1 Consent
However, [defendant] will argue that [victim] consented to the appropriation, as [insert facts]. In Victoria, there can be no appropriation of property where [defendant] had the consent of the owner (Roffel, adopting the approach of the House of Lords in Morris).
The prosecution will argue that Roffel was wrongly decided and should be overruled (per Callinan J in McLeod, applying Brooking J’s dissent in Roffel). The prosecution will argue that the approach of the House of Lords in Lawrence should be applied instead, whereby consent is not a relevant consideration when determining whether appropriation has occurred. However, since the House of Lords overturned the Lawrence approach in Gomez and the Roffel approach was left open by the majority of the High Court in McLeod, this argument is unlikely to succeed.
Alternatively, the prosecution will argue that the consent was induced by fraud, deception or false representation and therefore cannot absolve [defendant] from the appropriation (Baruday; Roffel). This will/will not be satisfied, as [insert facts].
Relevant cases:
® Lawrence (UK): D was a taxi driver. V, an Italian student who spoke little English, did not understand how much the fare was and offered his wallet to D to take what was owed. D took an amount exceeding the fare. The court held that consent was irrelevant to the appropriation (and even if it was relevant, it would be vitiated by fraud). ® Morris (UK): D switched food labels in a grocery store to obtain a cheaper price. Taking the food off the shelf did not constitute appropriation (implied consent). The court held that consent is relevant to appropriation, but since switching the labels was outside of this consent, appropriation was satisfied. ® Gomez (UK): D paid for goods with a forged cheque, which the manager accepted (not realizing it was forged). The House of Lords upheld the Morris approach (consent is relevant to appropriation) but found that V’s consent was not real or genuine (vitiated by D’s fraud).
55 ® Roffel: D and his wife were sole Directors and shareholders of a company. D drew cheques for private expenses to defraud creditors. Since D was the “directing mind and will” of the company, and he consented, there was no appropriation. ® McLeod: D was the sole Director and shareholder of a company. He used more than $2.2m invested funds for his own benefit and was charged with fraudulently taking company property for his own use (a NSW offence) rather than theft. The court held that the self-interested or self-motivated consent of the shareholder could not represent genuine consent, but left open the correctness of Roffel since it was not relevant to the statutory provision under consideration. ® Baruday: D made a fraudulent workers comp claim, which was payed out. However, the consent was vitiated by fraud, therefore D was liable for appropriation.
On balance, [victim] did/did not consent to the appropriation, therefore [defendant] will/will not be held to have appropriated [insert property].
1.4 Intention to permanently deprive (IPD)
For [defendant] to be guilty of theft, the prosecution must prove that he/she intended to permanently deprive the owner of the property when they appropriated it (s72(1) CA). This will be determined subjectively, on the basis of [defendant]’s intentions, rather than on the basis of whether [owner] was actually permanently deprived.
® Must be more than “mere borrowing” (Lloyd; Warner). Taking something for a definite, if imprecise, period of time will not amount to permanent deprivation (Warner). ® However, borrowing or lending will be theft where it is “for a period and in circumstances making it equivalent to an outright taking or disposal” (s73(12) CA). ® IPD will be satisfied if D’s use of the property will cause it to “lose all character giving it value as property”, even if D intended to return the property (Parsons). ® IPD will be satisfied under the Pawning Principle if D parted with someone’s property under a condition as to its return which he/she may not be able to perform, and he/she did so for his/her own purposes and without the owner’s consent (s73(12)-(13) CA).
Relevant cases where IPD not made out:
® Warner: D borrowed a neighbor’s toolbox without permission, intended to return it at an unspecified time. ® Dardovska: D took documents to show to the police, intending to return them afterwards. ® Lloyd: D took films to make pirate copies, intending to return the master copy afterwards. IPD not made out, as the rule from Parsons was not satisfied (i.e. property still had value).
On balance, the intention to permanently deprive will/will not be satisfied, as [insert facts].
1.4.1 Conditional intention
[Defendant] will argue that he/she did not have an IPD, as he/she only intended to appropriate the [insert property] if [insert condition]. However, the prosecution will argue that IPD is still satisfied, as [insert facts].
56 ® If D appropriates property belonging to another, intending or leaving it open to return it if it does not serve his/her purpose, but treats it as their own in the meantime, this will still amount to IPD (Sharp; c.f. Easom) ® Per s73(12) CA, where a person treats the property as their own regardless of the owner’s rights, in circumstances making it equivalent to an outright taking or disposal, IPD will be satisfied, even if they did not mean for the owner to permanently lose the thing itself. ® If D promises to return the property in exchange for payment, this will be treated as IPD under the ransom principle (Dardovska). ® If D only intends to return the property after it had undergone a fundamental change of character, this will amount to IPD under the essential quality principle (Dardovska; Lloyd).
On balance, IPD will/will not be satisfied.
1.5 Dishonesty
For theft to be satisfied, the appropriation must have been dishonest. [Defendant]’s appropriation will be regarded as dishonest unless one of the circumstances in s73(2) CA is satisfied.
Dishonesty has no residual meaning beyond the statutory definition (Salvo; Bonollo; Brow). The prosecution may argue that dishonesty should be decided with regard to the standards of ordinary, honest people, since the High Court in Peters was sympathetic to the UK approach articulated in Feely and Ghosh. However, since the court in McLeod emphasised that the Victorian approach should still apply to Victorian legislation, this is unlikely to succeed.
1.5.1 Legal right
Per s73(2)(a) CA, [defendant]’s appropriation will not be regarded as dishonest if he/she appropriated the property in the belief that he/she had a legal right to deprive the owner of the property, on behalf of himself or a third party. This must be a belief to a right in law, not merely a belief in a moral right (Langham). It is irrelevant whether D’s belief is mistaken, so long as it is genuinely held.
[Defendant] will argue that this is satisfied, as [insert facts].
On balance, this will/will not be satisfied. Accordingly:
® [defendant] was not acting dishonestly and theft will not be made out, although [defendant] may be charged for using force to obtain the property; or ® [defendant] was acting dishonestly and theft may be made out.
1.5.2 Consent of owner
Per s73(2)(b) CA, [defendant]’s appropriation will not be regarded as dishonest if he/she appropriated the property in the belief that the [insert owner] would have consented to the appropriation had they known of it and the circumstances. [Defendant] will argue that this is satisfied, as [insert facts].
On balance, this will/will not be satisfied. Accordingly:
57 ® [defendant] was not acting dishonestly and theft will not be made out; or ® [defendant] was acting dishonestly and theft may be made out.
1.5.3 Owner could not be discovered
Per s73(2)(c) CA, [defendant]’s appropriation will not be regarded as dishonest if he/she appropriated the property in the belief that person to whom the property belongs could not be discovered by taking reasonable steps.[Defendant] will argue that this is satisfied, as [insert facts].
On balance, this will/will not be satisfied. Accordingly:
® [defendant] was not acting dishonestly and theft will not be made out; or ® [defendant] was acting dishonestly and theft may be made out.
1.5.4 Unreasonable beliefs
The prosecution will argue that [defendant]’s belief was unreasonable, as [insert facts]. However, [defendant]’s beliefs do not have to be reasonable, so long as they are honestly or genuinely held (Salvo; Dardovska). Dishonesty is subjective, therefore the jury should only be concerned with [defendant]’s subjective beliefs.
1.5.5 Willingness to pay
[Defendant] will argue that their appropriation was not dishonest, as they were willing to pay for the property. However, willingness to pay is not itself sufficient to preclude dishonesty (s73(3) CA).
1.6 Contemporaneity
For the charge to succeed, the actus reus and mens rea of the of the offence must be contemporaneous (Greenberg). This will/will not be satisfied, as [insert facts].
1.7 Consequences
On balance, [defendant] will/will not be found guilty of theft. As such, he/she will have committed an indictable offence punishable by a maximum sentence of 10 years imprisonment.