PROPERTY OFFENCES – MODEL STRUCTURE

Kevin was a used-car dealer. One day Eric came into Kevin‟s showroom to look at some cars. Kevin
showed him around and said of one particular car: „This is a good little bus. I would stake my life on her.
He went on to say that the car had only had one careful owner, a nun who used it to do the shopping for
the convent, and that there were only 5,000 miles on the clock‟. It had, in fact, belonged to a car-hire
company and been driven for 140,000 miles. Eric did not buy the car.

Kevin‟s daughter, Chardonnay, worked in a charity shop. Somebody had donated a coat to the shop.
Chardonnay got a call from her neighbor that someone had broken into her house so she picked up her
coat and rushed home where everything was safe and the burglar had not taken anything. At this point,
she noticed that she had taken the donated coat with her my mistake rather than her own coat but decided
to keep it as she liked it.

The owner of the charity shop, Redder is looking for a nanny and comes across Davina‟s CV through a
company. Davina in her CV mentioned that she has been trained at the Montefiore school for nannies.
She did indeed attend that school but failed her exams. The family hired her because at her interview she
demonstrates an affinity with the children.

While working for the family, she empties the piggy banks belonging to the children and uses the money
to invest in some shares in her boyfriend‟s company, hoping to double the money so that she can replace
their savings. She is successful and gets double the money and keeps the amount taken in the piggy banks
again.

a) If you were a prosecutor, what would your preferred charge against Kevin for lying about
the car’s mileage?

The prosecution would charge Kevin (the “Kevin”) for the offence of Fraud under Section 2 of
the Fraud Act, 2006 (the “Act”)

b) Give reasons for your choice in (a) including an explanation as to why you chose as you did
rather than choosing a different charge.

Since K has given a statement which arguably is “false”, the applicable charge should be for
Fraud. Section 2(1)(a) of the Act sets out the first element of the actus reus (the “AR”) for fraud
which is to make a “false representation”. In terms of Sections 2(3) and 2(4) of the Act, a
representation can be either “express or implied” and can be in respect of a “matter of fact or
law”. Similarly, Section 2(2)(a) of the Act defines “false” as any statement being “untrue” or
“misleading”. In view of this, K clearly made a statement of fact regarding the mileage of the car
and its previous owner being a nun which was untrue i.e. a “false statement” has clearly been
made thereby proving the AR. Accordingly, the mensrea (the “MR”) for fraud is set out under
Sections 2(1)(a), 2(1)(b) and 2(2)(b) where we need to prove three elements i.e. that K was
dishonest (i.e. dishonest according to the ordinary standards of honest people (Ivey) (to be
decided by the jury) and had a subjective intention to make a gain or cause a loss or expose
 someone to the risk of loss (in terms of Section 5 of the Act, gain or loss has to be of money or
property) and K subjectively knew that the statement was untrue or misleading.
In our case, being a car dealer, K gave the false statement with clear knowledge that it was untrue
and giving such statements to make a sale and earn profits is generally fraudulent and would be
considered as dishonest by any reasonable jury. In addition, he clearly intended to make a profit
from the sale which shows an intention to make a gain as well. In view of this, all elements of
MR are met and E should be liable for Fraud.

c) If you were Kevins defense counsel, what arguments would you raise in response to the
charge in (a)?

From a defense perspective, a strong argument can be raised that whilst E may have made a false
statement with the above mentioned MR, E never bought the car and neither was there any profit
made from his statements.

d) How would the prosecutor respond to the counter arguments in (c)?

The prosecution will rebut the abovementioned argument based on the fact that Fraud is a
conduct crime (i.e. proof of false representation being made is enough to prove the AR of the
crime) and no result has to arise from the crime. Regardless of the car being bought or not, E will
be liable for Fraud.

e) If you were a prosecutor, what would your preferred charge against Chardonnay be for
keeping the donated coat?

The preferred charge would be for theft under Section 1 of the Theft Act, 1968 (the “TA”).

f) Give reasons for your choice in (e) including an explanation as to why you chose as you did
rather than choosing a different charge.

Since there evidence of taking someone‟s property i.e. the coat, the applicable charge would be
under the TA. To prove theft, the first aspect is to prove the AR for theft under Section 1 of the
TA where the first element is to prove that the coat falls under the wide definition of property
under 4(1) of the TA “includes money and all other property, real or personal, including things
in action and other intangible property”. In our case, the coat is tangible property and will be
falling under the legal definition of property for the purposes of the TA. Secondly, it needs to be
proven that the coat belongs to someone else i.e. was owned or in legal possession of another
(Turner No II). In our case, the coat was owned by the customer who donated this therefore this
element of AR will be met. Thirdly, the coat had to be appropriated i.e. in terms of Section 3(1) Comment [AQ1]:
of the TA, “any assumption by a person of the rights of an owner amounts to an appropriation, I understand that you all will want to put in the
and this includes, where he has come by the property (innocently or not) without stealing it, any argument regarding purpose here but that is for the
defense to rebut and then prosecution to give a
later assumption of a right to it by keeping or dealing with it as owner”. The definition is very counter argument so don’t use it here. Rather just
wide as seen in Phitm and Helm where an offer of sale made for furniture which belonged to set out the basic factors.
 someone else amounted to appropriation. In our case, by deciding to keep the coat with her, C has
appropriated the coat. In view of the above, all three elements of AR are met. Comment [AQ2]:

Whilst there is the defense of consent here which

Moving forward, we need to establish the MR for theft. Firstly, dishonesty needs to be proven can be raised but we shall raise it in giving the
defense side argument later.
which is not defined under the TA but Section 2(1) of the TA sets out certain situations, which, if
exist, will negate dishonesty. We note that none of these situations apply in the present context. Comment [AQ3]:
Therefore, reliance will have to be placed on the common law definition of dishonesty which was Please remember that the three situations need not
set out initially in the Feely case but was then overruled and a new definition was set out in the be copy pasted – only write the one which is
applicable in the given situation.
Ghosh case (which was a subjective and objective test) but this was again overruled and the
present definition is set out in the Ivey case where the jury decides dishonesty according to
ordinary standards of honest people. In view of this, it is clearly dishonest to keep a coat which
was given for charity purposes with the knowledge that C was not a person who needed such
charity. Finally, it needs to be proven that C had a subjective intent to permanently deprive the
owner of the coat (Velumyl). Since C had decided to keep the coat with her when she found out Comment [AQ4]:
about the mistake, she clearly had an intent to permanently deprive the owner of the coat. In view Only put Section 6(1) (borrowing ) or 6(2) )imposing
of the foregoing, C will be liable for theft. condition) if it is relevant to the question, if not, just
apply the general definition.

g) If you were Chardonnay’s defense counsel, what arguments would you raise in response to
the charge in (e)?

From the defense perspective, the following arguments can be raised to negate liability:
(i) Since the coat was given by the owner to the charity she had relinquished her ownership
herself so the coat did not belong to her and even otherwise C took the coat by mistake;
(ii) As regards appropriation, evidence of consent was present as the coat was given to the
charity shop with consent from the owner; and
(iii) In relation to the AR and MR, both occurred at different points in time since when she
took the coat (i.e. appropriation), she was harboring from a mistake so she never was
dishonest or intended to deprive the owner permanently and the MR came later when she
found out about the mistake. Accordingly, there can be no liability in the absence of a
coincidence of AR and MR. Comment [AQ5]:

Please note that the defense only creates doubt in

h) How would the prosecutor respond to the counter arguments in (g)? respect of the elements of AR and MR. to prove or
disprove something is on the prosecution so please
just set out the rebuttables here.
In relation to (i), the prosecution would rebut the defense argument by relying on Section 5(3) of
the TA and the case of Davidge and Wain wherein it was stated that if property is given for a
purpose and a different purpose is pursued, it would be considered as belonging to the first owner.
Accordingly, pursuant to Section 5(4) of the TA (as applied in Shadrok Cigari and Moynes case),
if property is received by mistake, it should be returned as it belongs to the other. In view thereof,
since the coat was given for charity, it could be given out for free to anyone who is needy and
qualifies as a person with limited means. C would not fall under such category therefore she
cannot use the coat as her own and even if she was mistaken, when she found out, she had to
return the coat. Failing which, the property will be considered as belonging to someone else.
 As regards (ii), whilst consent was present is giving the coat, elements of dishonesty vitiates
consent and prove appropriation (as stated in the Hinks case). We have already proven dishonesty
above when C decided to keep the coat.

However, as regards (iii), we believe that the prosecution would not be able to prove coincidence.
It is clear from the facts that the AR came at the time of taking the coat whereas the MR was
formed when she found out at home that the coat was not hers and decided to keep it. We would
also like to mention that no exception to this rule can apply here as well. Therefore, C would not
be held liable for theft as this argument will not be rebutted.

i) If you were a prosecutor, what would your preferred charge against Davina be for the
statements in her CV?

The prosecution would charge Davina (the “D”) for the offence of Fraud under Section 2 of the
Act. Comment [AQ6]:

Already defined above.

j) Give reasons for your choice in (i) including an explanation as to why you chose as you did
rather than choosing a different charge.

In view of the AR and MR for fraud set out above, the statement which D gave in her CV
regarding her professional qualification is an express statement of fact which may not be true but
is clearly misleading as any person who would read such statement in the CV would assume that
the person would have completed her training and passed it. In addition, it would be considered as
dishonest to not mention this crucial fact of not passing in the CV in view of the ordinary
standards of honest people, she also had an intent to gain money from being hired and also knew
that the statement she had put in the CV was misleading. Therefore, since all elements are being
met, she will be held liable.

k) If you were Davina’s defense counsel, what arguments would you raise in response to the
charge in (i)

From a defense perspective, an argument can be raised that the family never hired D based on the
fact that she was trained in the nannies school but rather that she showed a warm affinity to
children. Therefore, the misleading statement given was not the reason why she was hired and
made the gain of employment and money.

l) How would the prosecutor respond to the counter arguments in (k)?

As discussed above, since Fraud is a conduct crime, the primary argument of the prosecution
would be that keeping the statement in the CV and presenting the same would amount to conduct
on part of D which is enough to prove the AR.

m) If you were a prosecutor, what would your preferred charge against Davina be for
emptying the piggy bank
 The preferred charge for the money would be theft under Section 1 of the TA.

n) Give reasons for your choice in (m) including an explanation as to why you chose as you did
rather than choosing a different charge?

The reason for choosing theft was because the money taken from the piggy banks would be
property which was taken without consent. In addition, the AR and MR for theft are also being
met since the money would be falling under the definition of property, it clearly belonged to the
children and D appropriated them by investing them as this was the right of the owner which she
assumed without consent. In addition, her act would constitute as dishonest and there was also an
intention to permanently deprive the children of the property as well.

o) If you were Davina’s defense counsel, what arguments would you raise in response to the
charge in (m)?

The defense would argue that D clearly invested the money with a good intent that the money
would increase in value through the investment and thereafter she did keep the money back. This
would clearly negate her intention to permanently deprive and therefore she should not be liable
for theft.

p) How would the prosecutor respond to the counter arguments in (o)?

Whilst she may have always had a good intent, the MR is based on proof of dishonesty according
to ordinary standards of honest people. In view thereof, it is clearly dishonest to take anyone‟s
money without consent even for investing the same and earning a return. Secondly, the money
that she took from the piggy bank i.e. the physical notes and coins, that would be the property and
she invested the same in the company and the money she got back and kept again were different
notes and coins so the original notes, when taken, were with an intent to deprive permanently as it
would never have been possible to keep the same notes back again.