Theft by Conversion (Module)

Question 1

What is the elements of Theft by Person in a Special Relationship?

Answer 1

s220 CA61

(1) This section applies to any person who has received or is in possession of, or has control over, any property on terms on in circumstances that the person knows, require that person -
(a) to account to any other person for the property, or for any proceeds arising from the property; or
(b) to deal with the property, or any proceeds arising from the property, in accordance with the requirements of any other person
(2) Everyone to whom subsection (1) applies commits theft who intentionally fails to account to the other person as so required or intentionally deal with the property, or any proceeds arising from the property, otherwise than in accordance with those requirements
(3) This section applies whether or not the person was required to deliver over the identical property received or in the person’s possession of control
(4) For the purposes of subsection (1), it is a question of law whether the circumstances requires any person to account or to act in accordance with any requirements.

Question 2

What does the difference of theft and obtaining by deception hinge on?

Answer 2

The concept of possession and ownership.

If someone has gained something by deception, the owner or a person with a special interest in the property has freely given the offender possession and/or title (albeit voidable title).

If someone has gained property by theft, they have taken it without the owners knowledge or consent so they only have possession of the property and not title.

Question 3

What is the crux of theft?

Answer 3

The ‘Taking’ does not include obtaining ownership, possession of or control over any property with the consent of the person from whom it is obtained.

Question 4

When may there be an offence under s220?

Answer 4

If the defendant has intentionally:

• failed to account to any other person for the property received by the defendant
• failed to account to any other person for the proceeds of property received by the defendant
• dealt with property received by the defendant otherwise than in accordance with the requirements of some other person
• dealt with the proceeds of the property received by the defendant otherwise than in accordance with the requirements of some other person

Question 5

What is the penalty for an offence against s220 CA61?

Answer 5

s223(a) CA 61

Maximum 7 years imprisonment regardless of the value

Question 6

What are the two core elements of proof required for an offence under s220 CA61?

Answer 6

• that he or she have received property on terms or in circumstances which, to the defendant’s knowledge, affect what the accused may do with the property or proceeds or require the defendant to act in accordance with the requirements of another person, and
• that the defendant intentionally departed from the relevant obligation

Question 7

What are the two mental elements of an offence under s220 CA61?

Answer 7

Adams on Criminal Law

• First the defendant must know that the acquisition of the property was on terms of requirements which require the defendant to account for the property or its proceeds, or to deal with the property or its proceeds in accordance with the direction of another person. This requirement is met if the defendant is aware there are terms of some kind affecting his or her freedom of action; it should not be necessary that the precise details of those obligations be known.
• Secondly the defendant must have intentionally departed from his or her obligations. There is no requirement that the accused be shown to have acted dishonestly or without claim of right. The mere fact of intentionally failing to perform one’s obligations is sufficient for liability.