LAW 2599 Lecture Notes - Lecture 6: Absolute Liability, Implied Consent, Intangible Property
23 May 2018
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DISHONESTY OFFENCES – THEFT AND ROBBERY
PQ PROCESS
Step 1: identify the legislation and its elements
1. Identify physical elements
a. See below: conduct, circumstance, state of affairs, result
2. Identify fault elements
a. See below: subjective of objective
3. Identify inherent statutory defences
4. Identify if a full fault/ strict liability/ absolute liability offence
a. Full fault: PE anD FE need to be proven- principle of contemporality needs to be satisfied
b. Strict liability: Need only prove PE. No requirement of FE to accompany PE (eg drive under
disqualification)
c. Absolute liability: Need only prove PE. No requirement of FE to accompany PE. Regardless of
mental state (eg produce child pornography – R v Clarke)
d. If uncertain if SL or AL- He Kaw Teh analysis (below)
i. If interpretation favours both SL and AL, SL is favoured as defence of RMOF is available to
D, and criminal offences are construed in favour of D when there is ambiguity
Step 2: assess the client’s liability
1. Clarify definitions
2. Voluntariness
3. Apply facts to elements
4. Apply facts to statutory defence
Step 3: Seriousness and penalty of offence
Step 4: Burden of proof of the statutory defence
Step 5: other defences? Burden of proof
1. Different for SL and AL- see blelow
Step 6: alternative charges
Step 7: whether to plead guilty or not guilty (explain grounds), negotiate alternative with police, other action
find more resources at oneclass.com
find more resources at oneclass.com
S 134(1) THEFT
* if force is used/ threatened in order to commit theft, offence becomes the more serious charge of robbery.
STEP 1: Law of dishonesty codified by CLCA as per s 133(2) CLCA (subject to one exception: conspiracy to
defraud s 133(2))
• Judgements as to severity in each case are guided by relevant case law dealing with the classification of
offence and judicial discretion
STEP 2: offence of theft/ receiving
THEFT
s 134(1) outlines the general offence of theft: a person is guilty of theft if the person deals with property
(a) dishonestly; and
(b) without the owner’s consent; and
(c) intending to either
(i) deprive the owner permanently of the
property; or
(ii) to make a serious encroachment on the
owner’s proprietary rights
RECEIVING (exists in name only, charge = theft)
s 134(5) if a person receives stolen goods, offence amounts to receiving but can be described as theft and is
punishable as a species of theft
• ‘steals’- if the person commits theft of property or obtains it by deception
• ‘stolen’ – is person is in possession of property obtained by deception can be prosecuted for plain theft
(overlap with fraud)
STEP 3: Each element is subject to further extensive definitions and explanation. s 130 provides the definitions for
interpretation.
S 134(1) ELEMENT ANALYSIS
Physical elements
1. Deals with
→ EITHER: deals; takes; obtains; receives; retains; converts; disposes of; or any other dealing
2. Property
→ real or personal including: money; intangible property; things in auction; electricity; tame or captive wild
creatures; wild creatures in the course of capture
→ R v Stewart non-exhaustive definition extends to theft of ‘anything’ provided that:
• it is tangible or intangible and is of a nature that it can be the subject of a proprietary right; and
• the property is capable of being taken or converted in a manner that would result in deprivation to
the owner
• confidential information does not satisfy this definition
3. Owned by another
→ Ownership of property includes:
• entitlement to possession or control;
• a proprietary interest in property; and
• certain legal or equitable rights with respect to the property
4. Without consent
→ s 132(1) consent of the owner or (a) the implied consent of the owner (or owners); or (b) the actual or implied
consent of a person who has actual or implied authority to consent on behalf of the owner (or owners)
→ s 132(2) person is taken to have consent when they honestly (but mistakenly) believe from the owner’s words
or conduct that he or she has the owner’s consent
→ s 132(3) however, person who knows that another’s consent was obtained by dishonest deception is taken to
act without consent
Fault elements
1. Intention to deal not implied
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
No requirement of fe to accompany pe (eg drive under disqualification: absolute liability: need only prove pe. D, and criminal offences are construed in favour of d when there is ambiguity. Step 2: assess the client"s liability: clarify definitions, voluntariness, apply facts to elements, apply facts to statutory defence. Step 4: burden of proof of the statutory defence. Burden of proof: different for sl and al- see blelow. Step 7: whether to plead guilty or not guilty (explain grounds), negotiate alternative with police, other action. * if force is used/ threatened in order to commit theft, offence becomes the more serious charge of robbery. Step 1: law of dishonesty codified by clca as per s 133(2) clca (subject to one exception: conspiracy to defraud s 133(2)) Judgements as to severity in each case are guided by relevant case law dealing with the classification of offence and judicial discretion.
