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Theft by a person in a special relationship (Section 220 Crimes Act 1961)

[Note: This question trail assumes that Mr Jones authorised Mr Smith to receive the proceeds of the sale of his house.]

Charge 1: Theft by a person in a special relationship under section 220 of the Crimes Act 1961

The Crown must prove each element of the offence. That is called the burden of proof. The Crown carries that burden. Also, the Crown must prove each element beyond reasonable doubt. That is called the standard of proof. It means you must be sure that each element is proved.

1.

Are you sure that Mr Smith was in control of the proceeds of the sale of Mr Jones’ house?
 

If no, find Mr Smith not guilty.

If yes, go to question two.
2.

Are you sure that Mr Smith was subject to an obligation to account to Mr Jones for the proceeds of the sale?
 

[Note: This is a question of law for the judge and can be left out of the question trail for the jury. Where the factual basis of the alleged obligation is contested it will be necessary for specific factual questions to be put to the jury. Where it is not, the judge may make a finding that the obligation exists: See Nisbet v R [2011] NZCA 285, [2011] 3 NZLR 4 at [14]–[17].]

If no, find Mr Smith not guilty.

If yes, go to question three.

3.

Are you sure that Mr Smith knew that he was obliged to account to Mr Jones for the proceeds of the sale?
 

If no, find Mr Smith not guilty.

If yes, go to question four.
4.

Are you sure that Mr Smith repaid the debt he owed to the bank using the proceeds of the sale of Mr Jones’ house?
 

If no, find Mr Smith not guilty.

If yes, go to question five.
5.

Are you sure that Mr Smith intentionally entered into that transaction with the bank to repay the debt he owed?
 

If no, find Mr Smith not guilty.

If yes, go to question six.
6.

Are you sure that when Mr Smith used the proceeds of the sale of Mr Jones’ house to repay the debt he owed to the bank, he intentionally breached his obligation to account to Mr Jones?
 

If no, find Mr Smith not guilty.

If yes, find Mr Smith guilty.