In order for Mike to be found guilty of theft, it is necessary for the prosecution to prove without reasonable doubt, all the necessary elements of the offence under s.1 of the TA 1968 and TA 1978. The first element is the actus reus, which is the appropriation of property belonging to another, and the second are the mens rea elements which are dishonesty, and the intention to permanently deprive.
Mike has received an overpayment from his former employer and decided to keep the money and fly to Australia to visit his son. The issue that arises is whether this constitutes theft. "Property includes money" within the terms of s.4 (1) and that it belongs to another (former employer) under s.5 (1). Now it needs to be considered whether there has been an appropriation. There is a limited definition of "appropriation" in s.3. This makes clear that the D may appropriated property if there is an "assumption" of the rights of the owner and that this may occur "without stealing" if the property is later kept or dealt with. On the facts of this case the D alleges that the money has been sent to his account. Under s.5 (4), since the money has been paid to his account by mistake, Mike is under the obligation to make restoration of the money or its equivalent value. His omission to do so indicates that the actus reus elements are satisfied.
The prosecution must prove a dishonest intention to permanently deprive. It is clear that Mike has an intention to permanently deprive under s.6 (1) as he intends to treat the money as his own and there is no intention to return it, he would be unable to return it because he is currently unemployed. As for "dishonesty," the problem is that there is no definition of "dishonesty" in the Act. Instead, s.2 provides for situations where the D's appropriation is not to be considered dishonest. It is unlikely that Mike could rely on either s.2 (1) (a), (b) or (c). Nonetheless, it is evidence that the... [continues]
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