LAWS1206 Lecture Notes - Lecture 16: Corporation Sole, Locum, Travel Agency
Week 12: Property offences
Monday, 15 May 2017
09:05
PE - Appropriating property (FE of conduct)
FEs- Dishonesty + intention to permanently deprive
PE – Belonging to someone else (FE of circumstance in which conduct occurs)
FE – Recklessness as to whether it belongs to someone else ( by application of s 22)
S305 clarifies 301(1)
Significance of section 301(1)
Significance of sub-sections in section 305 in clarifying or modifying the
general principle in s 301(1):
1. Multiple people to whom property belongs (s 305(1)).
2. Trusts - s 301(1) and s 305(2).
3. Situations where there is a legal obligation to retain and deal with property in a
particular way (s 305(4)) – Hall [1972] 2 All ER 1009; Meech [1973] 3 All ER
939; Wakeman v Farrar [1974] Crim LR 136).
Significance of sub-sections in section 305 in clarifying or modifying the
general principle in s 301(1):
…
4. Mistake - where there is a fundamental mistake and a legal obligation to
make restoration of property (s 305(5) and s 305(6)). That is, there must be
BOTH:
(a) a fundamental mistake as defined in s 305(6) – nb the
modification of the old common law under Ilich (1987) 162 CLR
110;
AND
(b) a legal obligation to make restoration – see Attorney-General’s
Reference (No 1 of 1983) [1984] 3 WLR 686.
Significance of section 301(1): the whole of chapter 3
301 Person to whom property belongs for ch 3
(1) Property belongs to anyone having possession or control of it, or having any
proprietary right or interest in it (other than an equitable interest arising only from an
agreement to transfer or grant an interest, or from a constructive trust).
(2) This section is subject to section 330 (Money transfers).
Note Section 305 (Person to whom property belongs for pt 3.2) affects the meaning of
belongs.
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find more resources at oneclass.com
Read it subject to s305
Meaning of s301(1)
Having a proprietary right/interest in the thing (generally)
But s301(1) extends to temporary belonging/control,
Note the ordinary everyday meaning we attach to the concept of a person’s
“ownership”: something “belongs to” A - ie A “owns” it - when A has a “proprietary
right or interest” in that thing.
The definition in s 301(1) extends the ordinary meaning of the concept for
the purposes of Chapter 3 to also include either (temporary) possession or
(temporary) control over property.
So long as ANY one of the possible definitions of belonging to another is
in place, property “belongs” to that other person under the s 301(1) definition. So,
any one of the following will do:
Possession of the property OR
Control of the property OR
Having a proprietary right in the property OR
Having a proprietary interest in the property.
Read that in conjunction with appropriation
Assuming a right of ownership without any consent
If a third party comes and takes that thing, the third party is
potentially stealing from two parties, from who it belongs and who it has
control
S305 person to whom property belongs for PT 3.2
1) If property belongs to 2 or more people, a reference to the person to whom the
property belongs is taken to be a reference to each of them. (if it belongs to one
person, have to think about all the possible owners)
(2) If property is subject to a trust—
(a) the person to whom the property belongs includes anyone who has
a right to enforce the trust; and
(b) an intention to defeat the trust is an intention to deprive any such
person of the property.
(3) Property of a corporation sole belongs to the corporation despite a vacancy in the
corporation.
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find more resources at oneclass.com
(4) If a person (A) receives property from or on account of someone else (B) and is
under a legal obligation to B to retain and deal with the property or its proceeds in a
particular way, the property or proceeds belong to B, as against A.
(5) If a person (A) gets property by someone else’s fundamental mistake and is under a
legal obligation to make restoration (in whole or part) of the property, its proceeds or its
value—
(a) the property or its proceeds belong (to the extent of the obligation and as
against A) to the person entitled to restoration (B); and
(b) an intention not to make restoration is—
(i) an intention to permanently deprive B of the property or proceeds;
and
(ii) an appropriation of the property or proceeds without B’s consent.
(6) In this section:
fundamental mistake, in relation to property, means—
(a) a mistake about the identity of the person getting the property; or
(b) a mistake about the essential nature of the property; or
(c) a mistake about the amount of any money, if the person getting the
money is aware of the mistake when getting the money.
money includes anything that is equivalent to money.
Examples of things equivalent to money
1. a cheque or other negotiable instrument
2. an electronic funds transfer
Note An example is part of the Act, is not exhaustive and may extend, but does not
limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s
132).
Multiple owners
3 people have proprietary interests in a painting, all paid money for it,
2 people sell it to a third party, A and B consent buut they did not console with
C who was on holiday
304(1), Doris has appropriated property even though now he has proprietary
interest, at the moment of appropriation, it is still a property belonging to someone else
Only mens rea is not obvious,
304 , 301(1) and 305(1) in working out who property belongs to
Property must belong to someone else at the time of
appropriation: who does property belong to ?
Here it's still belong to Cam
If moment of appropriation is the crucial moment,
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Pe belonging to someone else (fe of circumstance in which conduct occurs) Fe recklessness as to whether it belongs to someone else ( by application of s 22) 939; wakeman v farrar [1974] crim lr 136). Significance of sub-sections in section 305 in clarifying or modifying the general principle in s 301(1): mistake - where there is a fundamental mistake and a legal obligation to make restoration of property (s 305(5) and s 305(6)). Both: (a) a fundamental mistake as defined in s 305(6) nb the modification of the old common law under ilich (1987) 162 clr. And (b) a legal obligation to make restoration see attorney-general"s. Significance of section 301(1): the whole of chapter 3. Note section 305 (person to whom property belongs for pt 3. 2) affects the meaning of belongs. Having a proprietary right/interest in the thing (generally) Note the ordinary everyday meaning we attach to the concept of a person"s.
