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“Dishonestly and without claim of right” – Part 1

31/05/2011

Part 1 – “Dishonestly”

The words “dishonestly and without claim of right” form an essential part of several crimes in New Zealand, especially common or garden theft.   Without them, the taking of someone else’s property would not be a crime.   They were introduced into our criminal law only in 2003 – by a major amendment to the Crimes Act 1961 which replaced in its entirety Part 10, the part of the act headed “Crimes Against Rights of Property”.

Before that, the terminology was “fraudulently and without colour of right” – old language inherited from English law.   Those expressions were not defined in the statute – their meaning had to be discovered from case-law in New Zealand and elsewhere in the common law world going back to the 19th Century.   Whereas both “dishonestly” and “claim of right” are given specific definitions.

So for a taking of someone else’s property to be theft, it must be done dishonestly and without claim of right.   Let’s start with “dishonestly”.   It might be thought that, whereas “claim of right” needs to be defined – it’s not everyday language after all, the meaning of the word “dishonestly” is obvious.   We all know dishonesty when we see it, don’t we?   We have familiar expressions like “blatant dishonesty” which we wouldn’t use if we didn’t all know and agree what dishonesty is.  Isn’t it simply conduct – or thoughts – which everyone knows to be wrong?   And which should therefore be punished by the criminal law?

Well no, it’s not that simple.   Let’s take an obvious case for starters – shoplifting.   The person who goes into a shop, picks up some goods and walks out without paying has committed theft, no question.   He (or she) has acted “dishonestly and without claim of right” in taking someone else’s property.

But what about finding something?   Say you’re walking along the street when you spot a $5 note on the footpath.   You pick it up, trouser it and later spend it.   Is that also theft?   It wasn’t your property and, being folding stuff, it obviously belonged to someone else – nobody in their right mind throws away a $5 note.

The answer might be that in the first scenario everyone would agree that the taking was illegal whereas in the second case not everyone would agree.   Some people – perhaps many people – would say that it’s not wrong to keep and spend a $5 note found on the street.   Why not?   Well, because there’s no possibility of finding the true owner of the note so if that person can’t be found the finder may as well have it – “finders keepers”.

This can be called a “moral” distinction – we apply moral precepts to what in each of these two cases is the necessary action for theft, the taking of someone else’s property.   But whose morality?   The answer here would be “collective morality” – the norms which by common assent a given community imposes on each of its members.  You might think that this is a pretty sound and sensible way of marking the boundary between lawful and unlawful conduct.

But it’s not the law in New Zealand.   By virtue of the statutory definition, it’s clear that both the shoplifter and the finder of the $5 note have acted “dishonestly”.   The word is defined (in section 217 of the Crimes Act) as follows –

“dishonestly”, in relation to an act or omission, means done or omitted without a belief that there was express or implied consent to, or authority for, the act or omission from a person entitled to give such consent or authority

No problem here with the shoplifting case – no-one could plausibly claim to believe that they had the shop-owner’s consent to take the goods without paying.   But what about the finding case?   Could the finder hold the belief that the owner of the $5 note – perhaps after discovering its loss – had given permission to the finder to keep it?   More to the point, would a court accept that the finder had such a belief when he or she picked up the note and pocketed it?

Notice that there is no room for the operation of  “collective morality” here.   It doesn’t matter what you or I, or society in general, might think as to the finder’s morality.   The test of “dishonestly” is simply whether the person charged with the crime believed they had the owner’s permission to take the property.   Of course, belief  is a state of mind and therefore a matter of fact to be decided on case-by-case basis.   So, is it possible that a court would accept that the finder of the $5 note had that belief even though it also accepted that the true owner had not given the necessary consent?

It is of course perfectly possible to believe in something which isn’t true – we do it all the time!   And it’s not relevant to liability for theft whether the belief is reasonable.   Any doubt on this score was despatched by the New Zealand Supreme Court in 2008, in Hayes v The Queen (a “benefit fraud” case).   Reasonableness is an objective standard – what “ordinary people” in the place of the defendant might think.   But its role in the definition of “dishonestly” is limited to this – the finder’s claimed belief (as to the owner’s consent) might be so implausible – so unreasonable – that the court would simply refuse to accept it had been held at the time of the taking.

Which, I would suggest, would be the case with the found fiver.   Any one of us selected at random – I suggest – would pick up and keep the note without believing we had the owner’s consent to do so.   Neither would we think to hand it in at the nearest police station or make inquiries in the vicinity or check the “lost and found” notices in our local newspaper.   We would believe all such measures to be a waste of time.   But would we – could we – believe that the owner had simply abandoned their proprietary interest in the note, thus leaving us free to treat it as our own?   I think not.

Perhaps, you might say, the owner would have given such consent if asked – since he or she would have accepted that they would never see the note again.   But what if, say, the owner had been a child given the money as a birthday present, or a poor person for whom $5 was a lot of money?    And what if instead of $5 it had been a $50 note?    Would such an owner give the necessary consent to the finder?

Let’s say you were the finder.   You may have believed that in keeping the found $5 you were not being dishonest .   Applying a “collective morality” test, you may well have been right – society would not hold you accountable.   But applying the test of “dishonestly” in New Zealand law you were being dishonest.   Whatever your state of mind, if you’re being “honest” with yourself, you did not believe you had the owner’s consent to keep the money.

Which brings us to the second limb of the test in New Zealand.   Whether, even though you acted “dishonestly”, you nevertheless had a “claim of right” to the found fiver.

We’ll look at that in part 2.

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