Theft and deception PDF

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Break down of each element for theft and deception ...

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Theft and deception Theft

Theft The offence has the following three elements which the prosecution must prove beyond reasonable doubt: Crimes Act 1958 s74). Actus reus 1. The accused appropriated property belonging to another; Mens rea 2. The accused did so with the intention of permanently depriving the other of the property; and 3. The accused acted dishonestly (Crimes Act 1958 s72). Basic definition of theft s72 (1) A person steals if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it. (2) A person who steals is guilty of theft; and "thief" shall be construed accordingly. Theft – Appropriation s73(4)-s73(5) Assumed rights: Assumed any of the rights of the owner (Crimes Act 1958 s73(4)); 1. A person "assumes the rights" of an owner by taking on the right to do something which the owner has the right to do by virtue of his or her ownership (Stein v Henshall ) Apply – examples of taking right of the owner  Ownership: "appropriation" can involve anything the owner has a right to do: taking, using, damaging, extinguishing, lending, retaining or offering to sell another person’s property (or any of their property rights (Stein v Henshall )  Damaging must be extensive or substantial 2. Adversely interfered with or usurped the owner’s rights in some way (Roffel v R [1985] VR 511). 3. Not theft if a person is transferred property: Innocent acquisition of property with consent or without dishonesty 1. If the accused came by the property innocently, but later assumed a right to it by keeping or dealing with it as an owner, s/he will have appropriated it (Crimes Act 1958 s73(4)). 2. However, if s/he purchased the property (or any "right or interest" in property) in good faith for value, but received a defective title, his/her assumption of the owner’s rights are deemed not to be theft (Crimes Act 1958 s73(5)). Consent 1. The accused will therefore not have appropriated property if s/he acted with the owner’s consent (R v Morris [1984] AC 320; Roffel v R [1985] VR 511). 2. he owner’s consent will only prevent an act from being considered an "appropriation" if that consent was real. If the consent was induced by fraud, deception or false representation, the accused will be regarded as having appropriated the property, despite the owner’s purported consent R v Baruday

Obtain property by deception

Obtaining property by deception It is an offence to obtain property by deception (Crimes Act 1958 s81). Four elements must be satisdied 1. The accused obtained property belonging to another; 2. The accused did so with the intention of permanently depriving the other of the property; 3. The accused used deceit to obtain the property; and 4. The accused obtained the property dishonestly

Elements Theft and OPD Property

Property Property is defined in s 71(1) of theCrimes Act 1958 (Vic) as including, ‘money and all other property real or personal including things in action and other intangible property.’ Must exist already: property must exist before it can be stolen. (Akbulut v Grimshaw) Confidential information: in England it has been held that confidential information is not property (Oxford v Moss (1978) 68 Cr App R 183),  Copyright: Copyright is property (R v Lloyd [1985] 1 QB 829).  Unauthorised phone calls: Not theft because property must exist before it can be stolen. (Akbulut v Grimshaw) – might change now for pepaid phones  Specimen (blood urine): It is property theft to steal samples R v Rothery  Electricity: While electricity is not property under this definition ( Low v Blease [1975] Crim L R 513), fraudulent abstraction, wastage, use, diversion or consumption of electricity is punishable as theft through the combined effect of State Electricity Commission Act 1958 s 107 and Electric Light and Power Act 1958 s 51 (repealed).  Animals:  Wild creatures, tamed or untamed are regarded as property S73(7)  Not property:  ‘Real property’ (immovable property – house and fixtures) is not theft. S73(6) Belonging to another Property "belongs" to anyone who has 1. Possession or s 71(2) Possession of property will arise in a situation where a person can keep the property in an area where there is a lawful right to exclude others from it.  Includes physical possession (using it)  and constructive possession (arises where a person is deemed to be in possession but they no longer have physical possession of it.) In law to prove this arises where the person has knowledge of the existence +ability to control. 

Theft and OPD belonging to another

2. control of it, or s 71(2) Control involves being in the physical or actual control or possession of the property. 3. who has any other proprietary right or interest in it s 71(2)  

Whether a person has a proprietary right or interest is a question of civil property law (R v Walker [1984] Crim LR 112). Dont need to est who: The prosecution needs only to establish that someone other than the accused had property rights that were appropriated. There is no requirement that the prosecution prove who actually held those rights (Lodge v

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Lawton [1978] VR 112). Abandoned property: where owner abandoned their rights to property it cannot be stolen Hibberd v McKernan Missing property: will be stolen Can steal own property: It does not matter if the accused has property rights in the relevant property. If someone else also has property rights in it (e.g., a partner), the property "belongs to another" and can be appropriated (R v Bonner [1970] WLR 838). Cant steal own property: where A has possession/control and proprietary interest they cannot be committed of theft. R v Greenberg

Equitable interest property does not "belong" to a person who only has an equitable interest in that property, if that equitable interest arose from an agreement to transfer the property or grant an interest in it (Crimes Act 1958 s71(2)). Property that belong to people who are not the owners Section 73 of the Crimes Act 1958 describes four special cases where property is deemed to "belong to" people who might not otherwise be regarded as property owners. These cases are where the property is: 1. Subject to a trust (s 73(8));  Although trust property will ordinarily "belong to" the beneficiaries of the trust (due to the application of Crimes Act 1958 s71(2)), in some cases there will not be any beneficiaries (e.g., a purpose trust).  In such cases, the property subject to the trust is deemed to belong to anybody having a right to enforce the trust (Crimes Act 1958 s73(8)). 2. Money held under a fiduciary obligation (s 73(9)) – mostly money  Section applies to legal obligations arising from contract, law of restitution, trust or fiduciary duties.  Not contractually obligated unless clear: This provision applies only where the accused was required to deal with the particular property (or its proceeds) in a particular way. A mere contractual obligation to provide a service in return for payment is not sufficient ( R v Hall ) – Need to specify that the money give will be used for a particular service  Money handed over to another person in a bailment situation and the bailer retains ownership (‘ward principle’) 3. Property received by mistake (s 73(10)); R v Gilks Criteria:  person (the "receiver") received property by the mistake of another;  The receiver was not aware at the time that a mistake was being made, or had not yet decided to dishonestly retain the property;  There is a legally enforceable obligation to restore the property/proceeds.  The mistake was not "fundamental" (i.e. it did not concern the identity of the receiver, or the nature or volume of the property); [4] and What they must do:  The receiver is under an obligation to return the property.  Intention not to make restoration is regarded as an intention to permanently deprive. 4. The property of a corporation sole (s 73(11)) The property of a corporation sole is regarded as belonging to the corporation, notwithstanding any vacancy in the corporation (Crimes Act 1958 s73(11)).

OPD/OFD – obtain

Theft Dishonesty

Obtain: Property  The accused "obtains" property by deception if s/he obtains ownership, possession or control of it (Crimes Act 1958 s81(2))  The accused does not need to have obtained the property for him or herself. This element will be satisfied if s/he obtained the property for another person, or enabled another person to obtain or retain the property (Crimes Act 1958 s81(2)).  Where the accused deceives someone with the intention of obtaining property, but fails to obtain the property, s/he may be guilty of attempting to obtain property by deception (R v Kalajdic [2005] VSCA 160; R v King [1987] QB 547). Financial advantage:  The accused does not need to have obtained the financial advantage for him or herself. This element will be satisfied if s/he obtained the financial advantage for another person (Crimes Act 1958 s82(1). See, e.g., Richardson v Skells [1976] Crim LR 448; Anile v The Queen [2018] VSCA 235R, [187]).  Where the accused deceives someone with the intention of obtaining a financial advantage, but fails to obtain the financial advantage, s/he may be guilty of attempting to obtain a financial advantage by deception (R v Kalajdic [2005] VSCA 160; R v King [1987] QB 547). Dishonesty – Mens Rea Theft   

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OPD and OBD – Deception

The accused’s appropriation of property belonging to another will only be theft if it is "dishonest" (Crimes Act 1958 s72(1)). Dishonesty has a special meaning when used in Division 2 of the Crimes Act 1958. It means that the accused acted without any claim of legal right (R v Salvo Not dishonest In Victoria, section 73(2) restates this general definition in the context of theft, and adds two deeming provisions. It provides that a person’s appropriation is not to be regarded as dishonest if the person believed that: a. S/he had a legal right to deprive the owner of the property; or b. The owner would have consented to the appropriation if s/he had known of it and the circumstances surrounding it; or c. The owner could not be discovered by taking reasonable steps. The term "dishonestly" in s72(1) has no residual meaning beyond this statutory definition (R v Salvo

Property 1. The third element requires the accused to have obtained the property by deception (Crimes Act 1958 s81(1); R v Salvo [1980] VR 401). 2. For this element to be met, the prosecution must prove that:  The accused made a representation by words or conduct;  The representation was about existing or past facts or law;  The representation was false;  The accused knew the representation was false, or was reckless as to whether it was true or false;  The accused intended to obtain the property by making the representation;  The false representation was believed by the victim (who was thereby deceived); and  The accused obtained the property as a result of the deception.

3. The jury must be unanimous about the particular representation which the accused made (Magnus v R (2013) 41 VR 612; R v Brown (1984) 79 Cr App R 115; R v Holmes [2006] VSCA 73). 4. As "deception" has the same meaning in relation to the offence of obtaining a financial advantage by deception as it does for the offence of obtaining property by deception (Crimes Act 1958 s82(2)), cases decided in relation to that offence will be applicable to s81.

Obtaining financial advantage by deception

Obtaining financial advantage by deception Crimes Act 1958 s82 The offence has the following three elements: 1. The accused obtained a financial advantage for himself or herself or another; 2. The accused used deceit to obtain the financial advantage; and 3. The accused obtained the financial advantage dishonestly (Crimes Act 1958 s82. See, e.g., R v Vasic (2005) 11 VR 380; Anile v The Queen [2018] VSCA 235R, [187]). Financial advantage  It occurs where A obtains a more favourable economic, monetary or commercial position that does not fall under s71(1) Crimes Act but does not require the advantage to the detriment of another Fisher v Bennet - Services - Debts – restaurant supplying food on the basis A has the money and will pay for it DPP v Ray - Extend Credit R v Lambie / R v Vaisc - deferring payment of a debt - Obtaining credit facility/loans (deferred liability) R v Kovacs / R v Vaisc  The Act does not define "financial advantage". The words should be given their plain meaning, and should not be narrowly construed (R v Walsh (1990) 52 A Crim R 80; Mathews v Fountain [1982] VR 1045).  

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Debt: When a debt or charge for which the accused is or may become liable (including one which is not legally enforceable) is reduced or in whole or part evaded or deferred; Borrow by way of overdraft/policy: When the accused is allowed to borrow by way of overdraft or to take out any policy of insurance or annuity contract, or obtains an improvement of the terms on which he is allowed to do so; and Earn remuneration: When the accused is given the opportunity to earn remuneration or greater remuneration in an office or employment, or to win money by betting (see, R v Vasic (2005) 11 VR 380)....