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Definition
| The appellant had been convicted on ten counts of obtaining by false pretences and five counts of using a document with intent to defraud. The accused was a principal in a business partnership which imported machinery and vehicles from Japan and other countries. It was alleged that the accused had falsely represented that the machinery was the unencumbered property of the partnership in order to persuade the financier to advance funds against that security. The money in question was a credit entered in or facility made available from a bank account operated by the partnership. The sole issue was whether the appellant had obtained anything capable of being stolen. Section 217 of the Crimes Act 1961 set out what was capable of being stolen and included movables which were the property of any person. The concept of a ``movable'' in the context of the law of theft, as opposed to succession and conflicts of laws, applied only to physical things rather than to chose in action |
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| Davies downloaded music and pornography at work using his employer�s internet connection. He was charged with stealing internet usage, the property of his employer, to the value of $205. The trial took place in July�2005. By June�2006 no judgment had been given and Davies applied for a stay on the ground of delay, having previously made several inquiries as to when judgment would be forthcoming. On 30�June, the Judge gave judgment convicting Davies of theft. The District Court refused the application for a stay and convicted and sentenced the accused. Davies appealed against conviction and also filed an application for judicial review of the decision to refuse a stay. Mr Grindle contended that internet usage is not property for the purposes of s�2 and, specifically, is not a chose in action or any other right or interest. He accepted that the term chose in action describes all personal rights of property which can only be claimed or enforced by action and not by the taking of physical possession, and that the Poster�Factory and Telecom were parties to a contract under which the Poster�Faktory purchased a quantity of megabytes per month. He also accepted that megabytes are a thing in action, capable of being stolen in the same way that units of electricity can be stolen. Internet usage, however, is not a thing in action. It simply describes an action or activity � that is, using the internet. Mr Smith noted in response that Mr�Grindle conceded in the District Court that internet usage is a chose in action. And he contended that Judge�Moore aptly stated that internet usage is measured in megabytes. I agree. In this context, internet usage describes data transmitted to and from a customer�s internet address using its internet service provider�s network, and the quantities of data are measured in megabytes. The information could perhaps have been framed more precisely as internet usage being data transmitted to and from the Poster�Faktory�s internet address, but as expressed it sufficiently identified what had allegedly been stolen, and helpfully distinguished the quantity of data, with which the charge was concerned, from information (such�as music or images) comprised or conveyed in the data. The firm�s rights under the contract are a chose in action, which Lord�Fitzgerald defined in Colonial Bank v Whinney as �incorporeal rights which are not visible or tangible or capable of manual delivery of actual enjoyment in possession in its ordinary sense, and which, if denied, can be enforced only by action or�suit�. Alternatively, Mr Grindle argued, the only megabytes belonging to the Poster Factory were the ones that it had prepaid Telecom for, while Mr Davies had been charged with usage in respect of the amount that exceeded the monthly limit. By exceeding the limit he may have incurred an obligation on behalf of his employer, but he did not deprive the Poster Faktory of anything since it had an unlimited supply of megabytes available to it. There is nothing in this point; infinite capacity might have been available, but that which was used was nonetheless property in which the Poster Factory had an interest, having acquired a contractual right to it and having incurred a contractual obligation to pay for it one way or another. |
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| It seems that mere information does not qualify for protection as intangible property. a university student took an examination paper before the examination and copied it before returning the paper to its original location. He was not found to have committed theft. In the eyes of the law, the university had not been deprived of any property. There are a number of issues that may relate to including information in the definition of theft. |
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| Parker v British Airways Board |
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Definition
| Where chattels are abandoned on a occupied land then it is likely that the occupier will acquire possession before the chattel is found. This can occur in one of three ways |
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| The appellant was a developer in possession of a licence to remove willows and exotic vegetation from the lake edge of Lake Brunner and to place sand to form beaches at a bay on the lake. Throughout 1994 he commenced a significant commercial tourist development on the shores of the lake. The development site was formerly a timber mill. The lake reserve between the appellant's land and the lake was owned by the Grey District Council and the bed of the lake administered by the Department of Conservation. In the course of the development, the appellant recovered rimu logs from the bed of the lake which he converted to his own use. He was charged with theft pursuant to s 220 of the Crimes Act 1961. The Crown alleged that the logs which had been taken from the lake bed only (as distinct from the foreshore or reserve areas) were the property of the Crown and the appellant therefore had no right to them. The appellant's defence was based on a number of propositions. First, that the Crown could not prove the boundary of the lake and therefore could not prove the logs to have been taken from Crown property. Secondly, if the logs were proved to have come from the lake bed, then they had been abandoned by the previous owners and the Crown could not therefore be said to be the owner. He was convicted. On appeal, the appellant argued that the evidence in respect of the above two points should have left the jury in sufficient doubt as to support a conviction. He added a third argument, namely, that the indictment had not sufficiently specified which logs had been taken from which points in the lake and therefore his defence was compromised by lack of the specificity required by s 329 of the Crimes Act 1961. The owner or occupier of land who had manifested a sufficient intention to exercise control over the land and the things which might be on the land had rights over chattels on that land (even if they were not attached to or imbedded in the land). Those rights might be categorised as a "special property" in the chattels or as possession which gave rise to the presumption of ownership. The words in s 220 "the owner, or any person having any special property or interest" encompassed persons having a wide range of proprietary and other interests in things capable of being stolen. The words must be taken to extend to lawful possession as, for example, in a bailee and also to the interest of an owner or occupier of land exercising actual control over what was on it. Even if the interest was something less than legal ownership no miscarriage of justice could flow from that in this case |
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Definition
| Implicit in all this is that a person can steal his or her own property |
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Definition
| Propoerty not abandoned when it was simply put out for rubbish collection |
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Definition
| Property not abandoned when an animal was buried. |
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| D took a piece of scrap metal from a site abandoned by the owner B, who had brought it off the occupier E. The English Court of Appeal found that even thought the ownership had been abandoned by B, ownership would have reverted to E as the occupier of the land, since E had manifested an intention to exclude tresspassers by fencing off the site. D was convicted of theft. |
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Definition
| Later acts may still be part of the theft by taking; you can have an interrupted but continuing act |
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Definition
| not necessarily decided same way in NZ. The appellant, H, was friendly with D, a man of limited intelligence. Over a six-month period, D withdrew sums totalling about �60,000 from his building society account, and those sums were deposited in H's account. H was subsequently charged with various counts of theft. At trial, the prosecution contended that H had influenced and coerced D to withdraw the moneys from his account. H made a submission of no case to answer, contending that the moneys were a gift to her from D, that the title in the moneys had passed to her and that in those circumstances there could be no theft. That submission was rejected by the judge, and D was convicted. Her appeal against conviction was dismissed by the Court of Appeal which held, on the basis of House of Lords authorities, that there could be an 'appropriation' within the meaning of s 1(1)a of the Theft Act 1968 even if the owner had consented to the property being taken. On appeal to the House of Lords, H contended that there could be no appropriation unless the owner retained some proprietary interest, or the right to resume or recover some proprietary interest, in the property. Alternatively, she contended that 'appropriates' in s 1(1) should be interpreted as if preceded by the word 'unlawfully', so that only an act which was unlawful under the general law could be an appropriation. Held that for the purposes of s 1(1) of the 1968 Act, a person could appropriate property belonging to another even though that other person had made him an indefeasible gift of property, retaining no proprietary interest or any right to resume or recover any proprietary interest in the property. A conclusion to the contrary would be would be inconsistent with previous House of Lords decisions. If it had been demonstrated that, in practice, those decisions were calculated to produce injustice, there would have been a compelling reason to revisit the merits of their holdings. That, however, was not the case, and in practice the mental requirements of theft were an adequate protection against injustice. |
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Definition
| Held that failing to return a toy taken innocently by D�s child was held to be theft by conversion |
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Definition
| The appellant, who had agreed to act as agent for S whilst the latter was in Australia, was found guilty on six counts and was convicted on all of them but discharged on two. In respect of count 1 he was convicted of stealing a cheque payable to S with which he opened a new account in the name of S as instructed by S, but he gave a specimen signature in his own handwriting. The appellant subsequently drew on this account and stated that he used these moneys for certain trips and in so doing was acting within his authority. Counts 2, 3 and 4 were in respect of moneys which he had received on terms requiring him to account to S for them and had fraudulently converted to his own use. The appellant in evidence admitted that he had not paid mortgage instalments which he had agreed to do out of moneys received for S, and that he had not paid other moneys into S's bank account. The appellant said that he had been told that S was not coming back from Australia and that as he maintained he had a claim against S he had entrusted the money he had received for S to G to hold until he found out what S proposed to do about his (the appellant's) claim |
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Definition
| Dronjak had been to Maximart, a department store, to purchase a car stereo radio priced at $695.83. On presentation of the item at the checkout the original price sticker was concealed from the checkout assistant and a sticker of $38.88 exhibited on the item. The checkout operator rang on the lesser sum, a mistake known to Dronjak. He was subsequently charged with theft. There was no finding of fact by the District Court Judge that Dronjak had added the second label, nor any finding of fact that he intended to commit theft at the time he carried the stereo to the checkout counter. He was convicted of theft and was fined $200 with costs. He appealed. Dronjak argued that he could not be guilty of theft because, in terms of s 220(2) of the Crimes Act 1961, he had obtained ownership of the radio with the consent of the checkout assistant. He further argued that if he had been correctly found guilty of the offence he should have been discharged without conviction pursuant to s 19 of the Criminal Justice Act 1985. The police submitted that if Dronjak was not guilty of an offence under s 220 of the Crimes Act he was guilty of an offence under s 246 of that Act in that he obtained the radio by false pretence, and that the Court should, in exercise of its powers under s 121 of the Summary Proceedings Act 1957, amend the conviction to one under s 246. No theft occurred when Dronjak carried the radio to the checkout counter as he was taking it without colour of right. At the checkout counter he obtained property or ownership of the radio by tendering the requested sum of money for a purchase even though that ownership had been obtained by mistake on the part of the checkout assistant. There was therefore no theft in terms of s 220(2) of the Crimes Act when he picked up the box containing the radio and walked out of the store with it. By maintaining silence in the face of a mistake known to him and by deliberately refraining from drawing the checkout assistant's attention to the mistake Dronjak had obtained title to the radio and he had therefore obtained it by a false pretence in terms of s 246 of the Crimes Act. This was a proper case under s 121 of the Summary Proceedings Act to amend the conviction to one of an offence under s 246.There were no grounds for interfering with the sentence imposed by the District Court Judge. As there was no great difference between the two offences, the same penalties as were imposed in the District Court were imposed on the conviction under s 246 |
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Definition
| if a person puts a valuable ring in desk draw, and that desk is then sold by the executor without knowledge of the existence of the ring, the buyer may not keep the ring on finding it since it was not included in the sale. |
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Definition
| A company referred to as M S D used a computer for producing cheques in a form ready for signature in relation to payment of its creditors. Due to an error in programming the computer it produced a cheque for $6,348.20 in favour of the appellant's firm which was signed and sent to him. The appellant paid the cheque into his firm's bank account being aware that M S D was not indebted to his firm. M S D did not discover the error for two or three months and during that time the appellant used the credit in the firm's bank account arising from the payment in of the cheque to pay some of the firm's creditors. |
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Definition
| The proprietor of a nursing home induced two old ladies to endorse cheques made out to them by signing on the back, and then paid the cheques into his own account. The victims had not known that they were endorsing cheques, but merely thought that they were signing pieces of paper. |
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Definition
| D was a driver for a haulage company. he was instructed to collect a one-ton load of pig meal from P. P, when loading the meal, inadvertently loaded an additional eight sacks. When D discovered the error, he appropriated the eight sacks and sold them. P remained the owner of the excess eight sacks, and therefore D committed theft |
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Definition
| D received and paid into his bank account a cheque which was inadvertently made out to him, but obviously intended for someone else with the same surname. He was convicted of stealing the cheque. |
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Definition
| a dishonest cashier acted in collusion with D by �selling� the goods to her at a price below the authorise price. In such a case, the cashier does not have authority to pass title on V�s behalf, and the goods are stolen by D when she takes them out of the shop. |
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Definition
| Appellant, whose duty as the servant of a dairy company was to take its cream to a railway station for transport, was authorized to give a pint of the cream once a week to a railway porter who helped him to load the cream. On one of these occasions appellant was persuaded by the porter to give him eight pints of cream, and he did so, remarking "This sort of thing will get me the sack," and that lie would never do such a thing again for anybody. Appellant was convicted on an information charging him with the theft of the cream, and in support of his appeal fron the decision on a point of law it was argued that there was no evidonce of mens rea, and that appellant had derived no profit or gain from the transaction.That the element of gain does not enter into the definition of theft in the Crimes Act. 1908 and the conviction was justified. |
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Definition
| Mere �borrowing� not enough |
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Definition
| D found a letter containing important business information. He wrote to the sender demanding money for its return, and threatening to send copies to interested persons if money was not paid. D was convicted of theft |
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Definition
| ��������� D recovered a stolen bike, and negotiated its return in response to an advertisement by the owner, in which a reward was offered. D�s conviction for theft was set aside on appeal , on the grounds that he has no intention of perminantly depriving the owner. |
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Definition
| Cannot be returned in the same condition. � While �same� suggests �identical�, it is submitted that the alterations must be significant rather than trivial. (e.g. takes V�s horse, intending to kill it and return the carcass |
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Definition
| ��������� film projectionist borrowed films and passed them to E, who made and sold copies of the films. Notwithstanding that the commercial value of the original films was thereby diminished, it is submitted that they should not be accounted stolen. |
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| Likely to be permanently deprived. Court of Appeal said that an outcome is considered likely when �such as could well happen�. Not necessary that it is more likely than not. |
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| Claim of right. Change made in 2003 to make clear moral justification not included. � Must be a positive belief that D�s conduct is lawful � NOT enough D believes in entitlement to a something obtained by conduct not believed to be lawful |
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| s 4 (2) Crimes Amendment Act (No 3) 2011 |
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Definition
| Changed the definition, was prompted by R v Murnane, Leason and Land. � Now requires that the defendant have, at the time of the act alleged to constitute the offence, a belief in a proprietary or possessory right in the property in relation to which the offence is alleged to have been committed |
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| � Does not need to believe that they have express permission to negate dishonesty in regards so s217 |
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| the court held that the earlier cases were wrongly decided in so far as they suggested that a person who deliberately took money knowing he had no right to do so was guilty of theft even though he quite honestly intended and expected to repay it. It is clear that the court saw no difference between the words "fraudulently" and "dishonestly". The judgment puts the matter in the following way: "We find it impossible to accept that a conviction for stealing, whether it be called larceny or theft, can reveal no moral obloquy. A man so convicted would have difficulty in persuading his friends and neighbours that his reputation had not been gravely damaged. He would be bound to be lowered in the estimation of right thinking people. Further, no reference was made by Winn LJ to the factor of fraud which Lord Goddard CJ in Reg v Williams [1953] 1 QB 660 had said had to be considered. It is this factor, whether it is labelled 'fraudulently' or 'dishonestly', which distinguishes a taking without consent from stealing" |
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| A pecuniary advantage is gained where the defendant evades or defers payment of a debt or obligation |
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| Alexander v Ministry of Social Development |
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Definition
| A person may obtain a pecuniary advantage where a proper reduction in payment or entitlement is avoided |
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Definition
| There is a pecuniary advantage when the benefit is received, and there is no need for the prosecution to prove the accused was not entitled to it. |
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| A �use� in terms of s228(2) may be a simple single action. Here he used a falsely filed document |
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Definition
| A �use� in terms of s228(2) may continue over a period of time. court was dealing with a prospectus sent to clients which stated that they were going to use invested money to search for a sunken ship containing a substantial amount of gold but they simply took the funds |
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Definition
| Unsuccessful attempts to use are still attempts to use |
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Definition
| Represntation may be by conduct |
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Definition
| Presenting to a bank a cheque or withdrawal slip on person's own account to a bank implied represents that the bank is legally indebted to the customer for the amount shown on the cheque or withdrawal slip. Also � Sufficient that the deceptive representations was one of the reasons, but not the only one |
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Definition
| representations by conduct in entering unconditional contract to purchase land. Also the deception must be an effective cause of the obtaining. |
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Definition
| Post-dated cheques represent that at the date on the cheque, it will be met |
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Definition
| Silnce not normally a representation except Where D�s conduct gives rise to an implied representation that is false, and which D silently fails to refute |
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Definition
| The failure to disclose a change of circumstances or intention may amount to a distinct deception where the original representation is repeated, or may be regarded as continuing � order food and leave without paying |
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Definition
| Probably a failure to disclose a change in circumstances is not, in itself, a false representation. Filed insurance for stolen car. Later found out that it was stolen by her boyfriend, who arraigned for it to be stolen, without her knowledge, for her benefit. She did not disclose this information to the insurer |
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Term
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Definition
| A false pretence is false, even if it is one that no ordinary person would believe |
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Definition
| If V is unaffected by the deception, there has been no obtaining �by� the deception, even if V believes the representation. � Prosecution ideally should produce direct evidence that V relied on false representations and handed over the property as a result |
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Definition
| If V knows of the lie, but hands over the goods anyway, there is only an attempt, and no complete offence |
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Definition
| If pretence is too remote from actual cause of V's decision to hand over property, D may not be liable. D obtained a teaching post through forged teacher�s certificate; but was held that her salary was obtained as a result of performing obligations and not by the deception |
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Term
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Definition
| if the pretence increases chances of the future event affecting V's decision, pretence is not too remote |
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Term
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Definition
| Reliance on a representation may be established by inference where this is appropriate |
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Definition
| The things obtained can include services but it is restricted to services that have an element of financial benefit. |
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Term
| (a minor) v DPP, R v Nazif |
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Definition
| Recklessness means that D must have a positive belief that the circumstance is lacking; in the context of s 240 D is reckless unless they positively believe that their statement is true |
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Definition
| Prosecution must identify one or more particular representations on which it relies and jury must be agreed as to it. Where there were multiple false representations, each must be alleged separately |
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Definition
| Must be received from another person for s246 |
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Definition
| Possession may be established by showing that (1) the goods are either in D�s immediate physical custody, or located at a place which D has control. And (2) that D had an intent to possess the goods |
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Term
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Definition
| If D lacks actual custody, may still be found to have �control�- normally in the case of a agent or servant acting under D�s direction (s246) |
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Definition
| The thing received must be something that was itself unlawfully obtained, not its proceeds or a substitute |
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Term
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Definition
| The proceeds can sometimes be received when they themselves have been obtained from a crime; such as money received from selling drugs. ...Not necessary that D is aware of the particular manner in which the thing was obtained, so long that they are aware that it was, or may have been, obtained by a crime |
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Term
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Definition
| Provided that the evidence shows that the property was obtained by theft or other crime, even acquittal of the particular person charged with committing that theft is irrelevant to the charge of receiving |
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Term
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Definition
| it is essential to prove that the property was stolen, or obtained by some other crime; thus if the person charged with originally stealing the property is acquitted on the grounds of legal incapacity there has been no crime, thus the receiver cannot be convicted |
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Term
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Definition
| If restored to original owner, but returned to location where found to trap a would-be receiver. The purchaser is not guilty of receiving |
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Term
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Definition
| If owner unaware of recovery and no agency exists between the owner and police, the goods remain stolen |
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Term
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Definition
| subsequent dealing after obtaining knowledge may amount to theft by dealing |
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Term
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Definition
| In essence, requirement satisfied where D accepts, or assumes, and has no serious doubts, that the goods he received were obtained by a crime. In some case it will be sufficient that the D was willfully blind |
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Term
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Definition
| Where claim of right is advanced, the defence need only extend to the claim to the property, and need to extend to a belief of entitlement to take the property in the manner in which it was taken |
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Definition
| If no robbery because no theft, there may still be liability for assault |
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Term
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Definition
| For the threat for robber the focus is on the D's conduct not its effect on the victim. The words "threats of violence" are to be given their ordinary meaning, which is a manifestation of an intention to inflict force unless the property is handed over |
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Definition
| Seems to support the English Courts powitino that overcoming someones balance would be sufficieint force for robbery. the defendant�s conviction for robbery was upheld. The defendant had grabbed the complainant�s handbag and she had tried to keep hold of it. Her hand became twisted around to the point where it hurt and she let go. �for there to be violence under s234 more force than the minimum necessary for assault is required but less than the infliction of bodily injury will suffice���t is enough to constitute violence under s234 if�the actions of the defendant forcibly interfere with personal freedom or amount to forcible or violent action or motion producing a very marked or powerful effect tending to cause bodily injury or discomfort.� |
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Term
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Definition
| the Court held that a sufficient implied threat for robbery could be found from the inherently violent circumstances of the appearance of the accused where the complainant was in a vulnerable position. |
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Definition
| ��������� What will be required is that the threat was made with intent to extort the property |
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Term
| Harman's Case, R v Newell |
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Definition
| Violence (or threats) preceding or at the same time as the theft will be enough for it to be robbery. |
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Term
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Definition
| For aggravated robbery the persons must be physically present, they must each share an intention to rob (which requires each intend to steal using their collective force should that be called for), and they must each play some definite part to accomplish the design |
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Term
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Definition
| For aggravated robbery � There is no requirement that the victim of the robbery be aware of the presence and participation in the robbery of each offende |
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