Page 61 - DCOM103_COMMERCIAL_LAW

Commercial Law

Notes
by the colleague at the time of appropriation as a person cannot steal property that is not
owned by another. Property which has at one time been owned may become ownerless
by abandonment, but abandonment is not something to be lightly inferred; property is
abandoned only when the owner is indifferent to any future appropriation of the property
by others. So this mean that property would not be considered abandoned because the
owner has lost it and has given up the search for it. The more valuable the property, the less
likely it is that the owner has abandoned the hope of ever seeing it again
So in relation to Kezia case, it is most likely that death certificate comes under a valuable

property hence her colleagues had the ownership in it. And when Kezia takes the certifi cate
this verify she has possession or either control of it. This further authenticates that, when

she has the intention to use the certificate as a proof of evidence to attain extension for her
assignment.
Any assumption by a person of the rights of an owner would amount to an appropriation in
accordance to S.3(1) of the Theft Act 1968, so in relation to Kezia taking the death certifi cate
from her desk would amount to theft, but one could say she took it innocently at fi rst
instance as to take care of it, but S3 (1) also states that …where a person has come to by
the property (innocently or not) without stealing it, any later assumption of right to it by
keeping or dealing with it as an owner would also amount to appropriation. This means

that Kezia taking the certificate does amount to theft as she had the intention of using the

certificate in bid to get an extension for her assignment under mitigating circumstances.

She clarifies her intention further, when she fills in the mitigating form where she writes

that she’ll send in evidence of documentation to support her mitigation request.

In Gomez (1991) and Hinks (2001) further confirmed that the word appropriation was taken
to be neutral word with the meaning any assumption by a person of the rights of an owner
given in S.3 (1) of Theft Act 1968 would be considered theft. In the case of Morris (1983) it
was stated that, there had to be an element of adverse interference with or usurpation of
any of the rights of the owner

At this instant we have comprehended that the certificate was property of her colleague
and Kezia has appropriated it, the next element must be proved is Mens rea of Theft,
dishonesty and intention to permanently to deprive; which would illustrate Kezia’s state
of mind.

There has been a partial definition of dishonesty in the 1968 Act as there has been left some
discretion to the court. The S.2 (1) gives three situations where a defendant is not deemed
dishonest:
1. If he appropriates the property in the belief that he has in law the right to deprive the
other of it, on behalf of himself or of a third person(S.2 (1)(a)); or
2. If he appropriates the property in the belief that he would have the other’s consent if
the other knew of the appropriation and the circumstances of it; (S.2 (1)(b)) or

3. (Except where the property came to him as trustee or personal representative) if he
appropriates the property in the belief that the person to whom the property belongs
cannot be discovered by taking reasonable steps (S.2 (1)(c))

S2 (2) states that a person appropriation of property belonging to another may be dishonest
even though he is willing to pay for the property
As the above examples do not fall within Kezia case then the court would look at common
law to decide if Keiza has been dishonest. Lord Lane in R vs. Gosh (1982) said,

“... A jury first of all decide whether according to the ordinary standards of reasonable and
honest person people what was done was dishonest.”

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