Theft
Table of Contents
Table of Contents
2
Policy statement and principles
5
What
5
Why
5
How
5
Overview
6
Theft or stealing defined
6
Key points related to theft
6
Theft related definitions
6
Health and safety duties
7
Other related information
7
Offences
9
Table of offences and penalties
9
Value of stolen property (not known, inclusive of GST or held under lien or property is a cheque)
9
Police powers
10
To arrest
10
Warrantless powers under the Search and Surveillance Act 2012
10
Search of arrested or deta ned person
10
Spec a ru es about search ng persons
10
Search after arrest
10
Other search power that may ass st
10
Stopp ng/search ng veh c es
11
Stopp ng veh c e for purpose of arrest ng an offender
11
Detent on of veh c e occupants
12
Search of occupants of veh c e
12
Power to se ze property
12
Matters of ownership
13
Owner of stolen property
13
Abandoned property
13
Person or persons unknown
13
Theft by asserting ownership
13
Theft against another owner
13
Who can commit theft?
13
How to prove theft
14
Theft of live stock, other animals, wild creatures and shellfish
15
Theft of livestock and other animals
15
Theft of parts of killed animals
15
Theft of wild creatures kept in confinement
15
State of conf nement def ned
15
Theft of shellfish
15
Theft by spouse or partner
16
Introduction
16
Effect of Property (Relationships) Act 1976
16
Court orders
16
Re at onsh p property
16
Prov ng offence of d spos ng of fam y chatte s by spouse or partner
16
Theft by person in special relationship and criminal breach of trust
17
Theft by person in special relationship
17
What you must prove
17
Criminal breach of trust
17
Theft, receives or obtains by fraud a controlled drug
18
Related information
18
Computer theft/crimes
19
Theft by finding
20
Theft from a person with an interest in property
21
Any interest in that property
21
Theft from lien holders
22
Introduction
22
What is a lien?
22
Parts of a house
22
Claiming a lien
22
Cont nuous possess on
22
What f there are other nterests n the property?
22
Offences
22
Trade Me complaints/theft
24
Failure of passengers to pay passenger/public transport service fare
25
Landlord and tenant disputes
26
General
26
Can a landlord seize or dispose of property?
26
Repossession and hire purchase
27
Introduction
27
Requests to attend a repossession
27
Basic rules about repossessions under Credit Contracts and Consumer Finance Act 2003
27
Rules applying at time of repossession
27
Trespass
28
Procedure if requested to attend a repossession
28
Related information
29
Dealing with theft
30
At the scene
30
Victim and witness interviews
30
When you receive the file
30
Investigation of the complaint
31
Suspect
31
Case completion
32
Shoplifting
33
Shoplifters not to be charged with burglary
33
On arrival at the scene
33
Interviewing the suspect
33
The follow up
34
Distributing photographs of shop thieves
34
Animal/stock thefts
35
Initial action
35
Interviewing the victim
35
Examining the farm
35
Obtaining further information
36
Notifications and suspect enquiries
36
Related documents
36
Electricity thefts
38
Initial action
38
Executing the warrant
38
Enquiries
38
s.6(c) OIA
The
Policy statement and principles
What
This chapter outlines what constitutes theft, Police powers in connection to theft, related offences and good practice for investigating
a theft.
Why
Theft has a negative impact on communities. Investigating theft offences provides an opportunity to:
‑ target and catch thieves
‑ support and reassure community
‑ seize, return, and seek restitution of victims’ stolen property
‑ ensure people can be safe and feel safe
‑ give crime prevention advice
‑ gain the confidence and trust of all.
How
Police will:
‑ exercise warrant and warrantless powers to stop vehicles, detain vehicle occupants, enter and search places, vehicles or things,
and seize stolen property under the Search and Surveillance Act 2012
‑ be guided by the policy in the ‘Charging decisions’ chapter
‑ use discretion with applying powers to arrest for theft without warrant under section 315(2) of the Crimes Act 1961.
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The
Overview
Theft or stealing defined
Theft or stealing is the act of:
‑ dishonestly and without claim of right, taking any property with intent to deprive any owner permanently of that property or of
any interest in that property; or
‑ dishonestly and without claim of right, using or dealing with any property with intent to deprive any owner permanently of that
property or of any interest in that property after obtaining possession of, or control over, the property in whatever manner.
‑ (s 219(1))
Key points related to theft
Key points in this chapter for constabulary employees to be aware of:
‑ theft comprises several offences under the Crimes Act 1961 and section 11(1)(a) of the Misuse of Drugs Act 1975 with some theft
offences having graduated penalties depending on the value of the property stolen
‑ the power to arrest for theft exists without warrant under section 315(2) of the Crimes Act 1961
‑ although powers to stop vehicles, detain vehicle occupants, enter and search places, vehicles or things, and seize stolen
property under the Search and Surveillance Act 2012, there is
no power to search a person for stolen property
‑ shoplifters who enter onto premises with a predetermined intention of committing a crime are not entering “without authority”.
Consequently, shoplifters must not be charged with burglary
‑ a person may commit theft of another person’s property even though those persons were married to each other, or in a de‐facto
relationship or a civil union at the time of the theft
‑ it is not theft for a passenger to fail to pay passenger/public transport service fare
‑ when asked to attend a repossession, you must consider whether:
‑ Police presence necessary or appropriate to prevent a breach of the peace
‑ the repossession is lawful.
Theft related definitions
This table provides definitions for terms relevant to theft offences. (Section references relate to the Crimes Act 1961 unless otherwise
stated).
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The
Term
Definition
Claim of
'Claim of right', in relation to any act, means a belief at the time of the act in a proprietary or possessory right in property
right
in relation to which the offence is alleged to have been committed, although that belief may be based on ignorance or
mistake of fact or of any matter of law other than the enactment against which the offence is alleged to have been
committed. (s2)
For example, a man leaves a clock at the jeweller's for repairs. When he returns to pick it up, he points out what he thinks
is his clock and takes it home. When he looks more closely, however, he realises his mistake. The man has claim of right
against a charge of theft or attempted theft, because he believed he had a lawful reason for taking the clock home. He
would, however, go on to commit an offence against section 219(2) if he then sold the clock knowing it was not his.
Note: Claim of right is a defence to a charge of theft.
Obtain
'Obtain', in relation to any person, means obtain or retain for himself or herself or any other person. (s217)
Property
'Property' includes real and personal property, and any estate or interest in any real or personal property, money,
electricity, and any debt, and any thing in action, and any other right or interest. (s2)
Note: Intangible property can be stolen.
Dishonestly '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. (s217)
Taking
In the theft or stealing section, 'taking' does not include obtaining ownership or possession of, or control over, any
(s219
theft property with the consent of the person from whom it is obtained, whether or not consent is obtained by deception.
or stealing) (s219(3))
When is
For tangible property, theft is committed by a taking when the offender moves the property or causes it to be moved with
theft
intent to steal it. (s219(4))
committed?Note: It is not necessary to prove that the suspect succeeded in getting away with the goods.
Intent to
An intent to deprive any owner permanently of property includes an intent to deal with property in such a manner that:
deprive
‑ the property cannot be returned to any owner in the same condition; or
‑ any owner is likely to be permanently deprived of the property or of any interest in the property.
s219(2)
Using or
The words should be given their normal meaning when interpreting whether an act is theft or stealing under section.
dealing
s219(1)
with
Health and safety duties
The expectation of the Commissioner and the Health and Safety at Work Act 2015 is that persons in the workplace will take reasonable
care to ensure that their acts or omissions do not adversely affect the health and safety of other persons, comply as far as they are
reasonably able to with any reasonable instruction that is given to adhere with the Act and its regulations.
A key enabler is the application of the TENR‐Operational threat assessment in the workplace.
See also ‘Health, safety and wellbeing’ for keeping our communities safe, and ensuring our people are safe and feel safe.
Other related information
For further information, see, as appropriate, these chapters:
‑ Association offences
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The
‑ Attempts
‑ Burglary and allied offences
‑ Deception
‑ National Recording Standard (theft coding guide)
‑ Receiving
‑ Repossession agents/employees (in the 'Dealers and traders' chapter)
‑ Robbery
‑ Search
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The
Offences
Table of offences and penalties
This table outlines offences under the Crimes Act 1961 or as indicated that relate to theft.
Offence
Penalty
Category
Theft by person in special relationship
7 years imprisonment
Category 3 offence
(ss220 & 223(a))
Theft of livestock and other animals
7 years imprisonment
Category 3 offence
(s220A)
Theft of property exceeds $1,000 in value
7 years imprisonment
Category 3 offence
(s223(b))
Theft of property exceeds $500 but does not exceed $1,000 in value
1 year imprisonment
Category 2 offence
(s223(c))
Theft of property does not exceed $500 in value
3 months imprisonment
Category 2 offence
(s223(d))
Theft of parts of killed animals
(b) 7 years
Category 3 offence
(ss221 & 223(b), (c) or (d))
(c) 1 year
(d) 3 months
Category 2 offence
imprisonment
Category 2 offence
Theft by spouse or partner
(b) 7 years
Category 3 offence
(ss 222 & 223(b), (c) or(d))
(c) 1 year
(d) 3 months
Category 2 offence
imprisonment
Category 2 offence
Criminal breach of trust
7 years imprisonment
Category 3 offence
s229
Theft/receiving/obtains by fraud a controlled drug
7 years imprisonment
Category 3 offence
s11(1)(a), (b) or (c) ‐ Misuse of Drugs Act 1975
Note: While section 219 defines theft, section 223 actually creates the offence and provides a penalty for it and is therefore the correct
section to reference a charge to.
Value of stolen property (not known, inclusive of GST or held under lien or property is a
cheque)
If the exact value is not known, it is enough to say within which value range it falls; for example, less than $500. However, this value
range must be specified on the Information and proved in court.
The value of a thing from a retailer combines the retail price inclusive of GST. See Police v Pure [2020] NZHC 330.
Where a person steals their own property that is being held under lien, the sum specified in the charge is the full value of the property ‐
not the sum of the debt owed.
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Police powers
To arrest
For any theft, you can arrest without warrant under section 315(2) of the Crimes Act 1961.
Warrantless powers under the Search and Surveillance Act 2012
There is no power to search a person for stolen property.
Search of arrested or detained person
If you have reasonable grounds to believe a person has the stolen/received property on or about them, you may arrest them and use
section 88 of the Search and Surveillance Act 2012 to search for the stolen/received property. You must name the item you are looking
for in the search.
Should you not find the stolen/received property as a result of a rub‐down search, section 88 of the Search and Surveillance Act 2012
allows you to conduct a more intimate search of the suspect including a strip search. See 'Searching people' in the 'Search' chapter
regarding strip searches.
Special rules about searching persons
You must also comply with section 125of the Search and Surveillance Act prior to commencing the search. You must:
‑ identify yourself by name or unique identifier
‑ state the reason for the search
‑ state the search is taking place under the Search and Surveillance Act 2012
‑ if not in Police uniform, produce evidence of your identity.
Search after arrest
If the person is arrested you may also use:
‑ section 83 of the Search and Surveillance Act 2012 ‐ to search a place for the stolen/received property if you believe that
evidential material will be concealed, altered, damaged or destroyed (CADD)
‑ section 84 of the Search and Surveillance Act 2012 ‐ to search a vehicle for the stolen/received property.
Both sections 83 and 84 require you to comply with the obligations outlined in section 131 of the Search and Surveillance Act 2012
prior to entering the place or vehicle. You must:
‑ identify yourself by name or unique identifier
‑ state the search is taking place under the Search and Surveillance Act 2012
‑ state the reason for the search
‑ state your intention to enter and search the place or vehicle
‑ if not in Police uniform, produce evidence of your identity.
Other search power that may assist
There is no warrantless search power to enter a private place to search for stolen/received property, however, section 8 Search and
Surveillance Act may assist.
Section 8 of the Search and Surveillance Act 2012 allows you to enter a place or vehicle without warrant to search for and arrest a
person who has committed an offence punishable by imprisonment (theft/receiving). You must
believe:
‑ that the person is there; and
‑ the person will leave to avoid arrest; or
‑ the stolen/received property will be concealed, altered, damaged or destroyed.
Note: Section 8 does not allow you to search for the stolen or received property.
Once you have arrested the suspect you may then rely on sections 83 and 84 of the Search and Surveillance Act 2012 to search the
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place or vehicle for the stolen/received property.
Note: While searching for the suspect in the place or vehicle you may come across the stolen/received property. As it came into your
plain view while conducting a lawful search, you can seize the property pursuant to section 123 of the Search and Surveillance Act 2012
if you have reasonable grounds to believe that you could have seized the item(s) under any search warrant that could have been
obtained under the Search and Surveillance Act or any other search power exercisable.
Section 8 requires you to comply with the obligations outlined in section 131 of the Act prior to entering the place or vehicle. You must:
‑ identify yourself by name or unique identifier
‑ state the search is taking place under the Search and Surveillance Act 2012
‑ state the reason for the search
‑ state your intention to enter and search the place or vehicle
‑ if not in Police uniform, produce evidence of your identity.
See
‘Applying section 8
’ in 'Part 5 ‐ Carrying out search powers with or without warrants' of the 'Search' chapter for further
information.
Stopping/searching vehicles
There are separate powers in the Search and Surveillance Act 2012 to assist with searching vehicles. Consider section 29 ‐ allows you to
search a vehicle
in a public place if you
believe that any stolen property is in or on it (note, the power to search does not explicitly
include a power of entry to a place do so).
If the vehicle is mobile then you need to use section 121 of the Search and Surveillance Act 2012 to stop the vehicle.
Once the vehicle has stopped you must comply with section 129 of the Act. You must:
‑ identify yourself to the driver
‑ state the reason for the search
‑ state the search is taking place under the Search and Surveillance Act 2012
‑ if not in Police uniform produce identification.
Section 131 of the Search and Surveillance Act 2012 must be complied with prior to entering the vehicle to commence the search. You
must:
‑ identify yourself by name or unique identifier
‑ state the search is taking place under the Search and Surveillance Act 2012
‑ state the reason for the search
‑ state your intention to enter and search the vehicle
‑ if not in Police uniform produce identification.
Stopping vehicle for purpose of arresting an offender
Under section 9 of the Search and Surveillance Act 2012 you may stop a vehicle for purpose of arresting an offender if you have
reasonable grounds to
suspect a person in the vehicle has committed an offence punishable by imprisonment (theft/receiving) or
reasonable grounds to believe that the person is in or on the vehicle.
Note: You must comply with the obligations under section 129 of the Act.
After using section 9 of the Act to stop the vehicle, then under section 10 you may require the details of any occupant you have
reasonable grounds to
suspect has committed an offence punishable by imprisonment.
You may also under section 10:
‑ search the vehicle to locate the suspect
‑ search the vehicle for the stolen/received property, if:
‑ the suspect has been arrested or
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‑ the suspect was seen fleeing the vehicle prior to arrest.
Prior to entering the vehicle to conduct a search under section 10 of the Act you must comply with subsection 2 of that section (advise
the driver of the reason for the search unless the driver is the person you reasonably suspect of having committed the offence and
intend to arrest) and the obligations under section 131.
Detention of vehicle occupants
Occupants of the vehicle may be detained under section 118 of the Search and Surveillance Act 2012 for the purpose of determining
any connection between the occupants and the reason for the search.
As they are detained they must be advised of their rights under the New Zealand Bill of Rights Act 1990 in accordance with the 'Chief
Justice's Practice Note on Police Questioning'. See also the 'Rights caution' chapter in the Police Manual.
Note: An opportunity to consult and instruct a lawyer will be given after the search is completed.
Search of occupants of vehicle
Should you not locate the stolen/received property in the vehicle, consider whether the property could now be in the possession of
one of the occupants.
To search an occupant of the vehicle you must satisfy section 119 of the Search and Surveillance act 2012 in that you must have
reasonable grounds to
believe the stolen/received property is on that person.
Note: There is no power to search all occupants.
Power to seize property
You may seize anything that is the subject of the search or that may lawfully be seized:
‑ under section 110(d) if it is found in the vehicle
‑ under section 125(j) if it is found on a person.
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Matters of ownership
Section 218(1) of the Crimes Act 1961 refers to all matters of ownership.
Owner of stolen property
For the purposes of Part 10, a person is to be regarded as the owner of any property that is stolen if, at the time of the theft, that
person has:
‑ possession or control of the property, or
‑ any interest in the property, or
‑ the right to take possession or control of the property.
Note: To be capable of being stolen, the property must have an owner.
Abandoned property
Abandoned property cannot be stolen, although property that appears to be abandoned is often still owned by someone. For example,
household rubbish is not abandoned. Its ownership passes to the local authority if the authority wishes it to. If the rubbish collector
takes it for their own use, they are guilty of theft. Wil iams v Phil ips (1957) 41 Cr App R 5 refers.
Person or persons unknown
The owner need not be identifiable or even ascertainable. While it is usual to name the owner when charging, this is not essential. A
person can be convicted of theft of "the property of a person or persons unknown" if:
‑ the suspect has no title or right to the property, or
‑ the property is owned by someone else, or
‑ the circumstances indicate that the property is stolen. Such circumstances may include:
‑ the way in which the suspect kept the property, or
‑ the nature, quantity and condition of the property, or
‑ the lack of adequate explanation from the suspect.
See 'Doctrine of recent possession' in the 'Receiving' chapter.
Property can be stolen from the possession of a bailee or carrier of goods, even though the true owner cannot be traced.
Theft by asserting ownership
It is theft to use property, without its owner's authority, as security against a loan, whether or not the creditor gains possession. For
example, a man who was left in charge of his friend's boat and included it in his list of assets when obtaining a loan, committed theft.
By listing the boat as his own asset, he "asserted ownership". Dunbar and Rogers v Arnott [1960] 2 QB 244 refers.
Issues may arise as to whether property can be considered to have been “used or dealt with” if its physical status is unaffected but the
accused has entered into transactions regarding it. Under the previous law entering into a transaction affecting property where the
terms of the transaction were inconsistent with the rights of the true owner of the property was a conversion (see e.g. R v Dunbar
[1963] NZLR 253 (CA); R v Nottingham [1992] 1 NZLR 395). Such transactions or attempted transactions should be considered to come
within the “deal with” element of the definition of the offence. Theft will include any act which is inconsistent with the rights of the
owner and without authority: Maihi [1993] 2 NZLR 139, 141, (1992) 9 CRNZ 304, 306; McNichol v Police (1990) 6 CRNZ 603, 605; although
as Maihi illustrates, a mere decision to convert is not enough without some conduct as well.
Theft against another owner
An owner of any property may be guilty of theft against another owner of that property.
(s218(2))
Who can commit theft?
Theft can be committed by, for example:
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‑ the owner of a property item, against a person with the right to possession and control of the property
‑ a lessee, against their reversioner
‑ any joint owner, or tenant in common of, or partner in any thing, against the other people with an interest in it
‑ any director, officer or member of any body corporate, against that body.
How to prove theft
You must prove the suspect:
‑ dishonestly and without claim of right
‑ took any property
‑ with intent to deprive any owner permanently of that property or of any interest in that property
or
‑ dishonestly and without claim of right
‑ used or dealt with any property
‑ with intent to deprive any owner permanently of that property or of any interest in that property
‑ after obtaining possession of, or control over, the property in whatever manner.
In addition, you must prove
‑ the property was capable of being stolen
‑ ownership by any person(s)
‑ the value of the property.
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Theft of live stock, other animals, wild creatures and shellfish
Theft of livestock and other animals
A person commits theft and is liable to imprisonment for a term not exceeding 7 years if they steal any livestock or any other animal
that is the property of any other person. (s220A)
Note: Livestock includes animals such as cattle and sheep. The offence also extends to the theft of companion animals such as pet
dogs, cats or birds. Section 220A recognises that animals are sentient beings (able to experience feelings) and that their theft is not the
same as theft of inanimate property.
Theft of parts of killed animals
Under section 221 of the Crimes Act 1961, every one commits theft if they kill any animal that is the property of any other person with
intent to steal the carcass, skin, or plumage, or any other part, of the animal.
From the absence of any specific provision, theft of a tame animal is possible in any circumstance; while theft of a wild animal is only
possible where the circumstances of its taking or killing come within section 218(3) or (4) in relation to wild living creatures).
Theft of wild creatures kept in confinement
All living creatures wild by nature, such as are not commonly found in a condition of natural liberty in New Zealand, are, if kept in a
state of confinement, capable of being stolen, not only while so confined, but after they have escaped from confinement s218(3).
All other living creatures wild by nature are, if kept in a state of confinement, capable of being stolen so long as they remain in
confinement, or are being pursued upon escaping from confinement ‐ s218(4).
'State of confinement' defined
A wild living creature is in a state of confinement so long as it is in an enclosure designed to prevent escape, or otherwise secured, and
to allow its owner to take possession of it when they please ‐ s218(5).
Theft of shellfish
Shellfish of all types are capable of being stolen when in oyster beds, marine farms, layings, and fisheries that are the property of any
person and that are sufficiently marked out or shown as such property (s218(6)). See also section 101A of the Fisheries Act 1983 for an
offence of taking, removing etc. of farmed aquatic life.
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Theft by spouse or partner
Introduction
Under section 222 of the Crimes Act 1961, a person may be convicted of theft of another person's property even though those persons
were married to each other or in a defacto relationship or a civil union at the time of the theft.
Effect of Property (Relationships) Act 1976
Court orders
A husband or wife commits theft if they take, or convert, or otherwise deal with the property of their spouse, after an order has been
made under section 25 of the Property (Relationships) Act 1976. Under this section, the Family Court or High Court can make orders
regarding the status, ownership, vesting or possession of any specific property. The spouse against whom the order is made loses
rights previously held.
Under section 25(3) of the Act, the court may, at its discretion, make such an order even if the couple are still living together. Provided
all the ingredients of theft could be proved, this means the party losing previous rights can be charged with theft. Even if there are no
orders in place and one spouse or partner sells a jointly‐owned asset that could be an offence in light of section 218(2) of the Crimes
Act 1961 (an owner may be guilty of theft against another owner).
Relationship property
The definition of 'property' in s 2 of the Crimes Act 1961 includes an interest in any real or personal property. Where a couple have
property which is 'relationship property' under section 8 of the Property (Relationships) Act 1976, each spouse may be considered to
have an interest in the property, and thus either can steal the property from the other by depriving the other of his or her interest in it.
Proving offence of disposing of family chattels by spouse or partner
You must prove the suspect:
‑ knew that proceedings were pending under the Property (Relationships) Act, and
‑ without the leave of a judge of the High Court or a District Court judge or a Family Court judge or registrar, or the consent in
writing of the other party
‑ sold, charged, or disposed of any of the family chattels, or
‑ (except in an emergency) removed from the family home or homes any of the family chattels which are household appliances or
effects or which formed part of the furniture of that home or those homes.
(s45 Property (Relationships) Act 1976)
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Theft by person in special relationship and criminal breach of trust
Theft by person in special relationship
Theft by person in special relationship' under section 220 of the Crimes Act 1961 does not apply to persons committing theft against
their employer (previously referred to as 'theft by a servant' prior to the Crimes Amendment Act 2003). The fact that someone has
committed theft against their employer is an aggravating feature of the offence of theft for the purposes of sentencing, as the
relationship between employer and employee involves an element of trust. For this reason it should always be mentioned in the
Summary of Facts or in evidence that the offence was committed against an employer.
Section 220 relates to a theft where the defendant and the complainant are in a
fiduciary relationship. This means that there is a
legal
obligation of trust between the parties, such as the treasurer of a club. A person who is placed in such a position of trust has a strict
duty to deal with the property on the terms that give rise to that position.
What you must prove
You must prove the suspect:
‑ received or was in possession of, or had control over, any property on terms or in circumstances that the person knows and
requires the person:
‑ to account to any other person for the property, or for any proceeds arising from the property; or
‑ to deal with the property, or any proceeds arising from the property, in accordance with the requirements of any other
person
and
‑ intentionally failed to account to the other person as so required; or
‑ intentionally dealt with the property, or any proceeds of the property, otherwise than in accordance with those requirements.
Note: This applies whether or not the person was required to deliver over the identical property received or in the person's possession
or control.
It is a question of law whether the circumstances required any person to account or to act in accordance with any requirements.
Criminal breach of trust
Criminal breach of trust is an offence under section 229.
You must prove the suspect:
‑ was a trustee of any trust
‑ dishonestly and contrary to the terms of that trust
‑ converted anything to any use, not authorised by the trust.
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Theft, receives or obtains by fraud a controlled drug
Under section 11 of the Misuse of Drugs Act 1975, every person commits an offence against the Act and is liable on conviction to
imprisonment for a term not exceeding 7 years who:
‑ steals a controlled drug; or
‑ with intent to defraud by any false pretence, either directly or through the medium of any contract obtained by the false
pretence, obtains possession of or title to a controlled drug, or procures a controlled drug to be delivered to any person other
than themselves; or
‑ receives a controlled drug obtained by any offence, or by any act, wherever committed, that, if committed in New Zealand,
would constitute an offence, knowing that the controlled drug had been dishonestly obtained or being reckless as to whether or
not the controlled drug had been stolen or so obtained.
Note: These provisions apply to section 11 offences:
‑ section 246(2) to (5) of the Crimes Act 1961 in respect of proceedings for an offence of receiving a controlled drug
‑ sections 219. 220, 222, 240 and 246(2) to (5 of the Crimes Act 1961 with such modifications as may be necessary for construing
an offence of theft of, receiving or obtaining by fraud a controlled drug.
Related information
See:
‑ the 'Drugs' chapter for drug related offences, their ingredients, procedures and instructions for handling controlled drugs and
searching people for drugs, as well as general advice on other drug related matters
‑ the 'Search' chapter for general advice with searching people, places, vehicles or things.
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Computer theft/crimes
See ‘Elements of offences involving computer systems’ in the 'Deception' chapter for guidance concerning computer crime.
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Theft by finding
A person can be guilty of theft who, on finding an article, is aware of who the owner is, or has reasonable grounds to believe the owner
could be found, but still:
‑ takes possession of it with intent to use it, and
‑ does not take reasonable steps to return it or locate the owner.
Theft by finding falls under the "deals with" provisions.
Notes:
‑ Reasonable steps could include reporting the find to Police. R v Oram [1908] 27 NZLR 955 refers.
‑ A bona fide belief that goods have been abandoned is a defence to theft by finding. R v White (1912) 7 Cr App R 266 (CCA) refers.
See the section 'Abandoned property' in this chapter.
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Theft from a person with an interest in property
Any interest in that property
Property can be stolen from someone who has merely an interest in it, such as a bailee or lien holder. For example, a person who steals
property in transit with Kiwi Rail, can be charged with stealing it "from the possession of Kiwi Rail", because Kiwi Rail is the bailee.
Note: In cases where someone else has an interest in the property, a person can steal their own property. This does not apply,
however, where a contract is invalid, for example, as it can be in contracts with minors. In such a case, it may not be theft for the owner
to take property away without consent and without having paid for repairs.
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Theft from lien holders
Introduction
Difficult situations may arise, requiring Police involvement, when customers may not appreciate that in certain circumstances repairers
maintain a lawful lien over property, e.g. motor vehicles, and are lawfully entitled when exercising that lien, to maintain possession of
the property until payment of goods and services is made.
It is important when responding to escalating incidents involving lien holders maintaining possession of property under a lien that
Police understand:
‑ the nature of a lien and the rights of the lien holder to enforce it by maintaining possession of the property
‑ that the owner may properly be charged with theft if, before the invoice for parts and labour is paid, they remove a vehicle or
other property from a repairer lawfully exercising their rights under a lien, i.e. it is a criminal matter and not "just a civil matter".
What is a lien?
A lien gives someone a legal right to keep possession of property (e.g. a motor vehicle) until a condition is satisfied. It is enforceable
against anyone, including an owner of the property.
Liens are most commonly enforced until a debt due for repairs, parts or improvements, is paid in full. For example, a motor vehicle or
property repairer may claim a lien and refuse to return the vehicle to a customer until the parts and labour are paid for. This applies
even if the amount charged for the work is in dispute.
The lien expires once the debt for repairs is paid.
A lien does not cover payment for other expenses such as storage or maintenance costs and penalty interest unless the terms of supply
expressly provide for such expenses and the customer has had notice of those terms.
Parts of a house
Parts of a house (e.g. spouting, roof, wall cladding etc.) are considered to be part of the land. As such, these sorts of goods cannot be
taken back or reclaimed in lieu of payment once installed.
Claiming a lien
There is no formal procedure necessary to claim a lien. A motor vehicle repairer (for example) simply refuses to return the item or
motor vehicle to the customer until the parts and labour are paid for.
To claim a lien the holder must be satisfied:
‑ lawful possession has been obtained with the express or implied authority of the owner for work or repairs to be carried out
‑ the work is an improvement or repair ‐ maintenance is not covered
‑ continuous possession has been maintained on the repairer's premises.
Continuous possession
Once the property leaves the repairer's premises, the right to a lien is lost. The right is not revived by a subsequent recovery of
possession. Accordingly, if the terms of trade provide credit or payment on the 20th of the following month rather than 'cash on
delivery', a lien cannot be claimed as possession will be lost.
What if there are other interests in the property?
A lawful lien overrides the interests of a person or company holding a security interest (e.g. the property is being paid off under a hire
purchase agreement) or charge registered against the property, provided the repairer has no knowledge of the security interest or
charge and the materials and services relating to the lien are provided in the ordinary course of business. This is the case even if the
interest or charge prohibits the creation of a lien.
Where a repairer has notice of another interest or charge before commencing work, a lien cannot be claimed.
Offences
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Unlawful removal of a vehicle (or other property) by an owner breaches the lawful possessory interest of the repairer in the repaired
vehicle pursuant to the lien. It also breaches any applicable "romalpa clause" providing that title to the property or parts does not pass
to the owner until payment is made in full.
In these circumstances an owner can be charged with theft of the parts or of their "own" vehicle, as the repairer's lien is a legally
enforceable interest, rendering the repairer the "owner" for the purposes of sections 218 and 219 of the Crimes Act 1961.
This would not apply however, if the contract was invalid, e.g. as it can be with minors. In such a case, it may not be theft for the owner
to take property away without consent and without having paid for repairs.
Note: Criminal charges laid will not result in the repairer recovering monies owed. The criminal law is not a mechanism for debt
collection. Monies owing to the repairer must be pursued by civil action.
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Trade Me complaints/theft
See 'Schedule 1 ‐ Investigation response to Trade Me related offences' in the Letter of Agreement with Trade Me in Police Instructions
for guidance around the handling of complaints made to Police from Trade Me.
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Failure of passengers to pay passenger/public transport service fare
See: ‘Fare evasion’.
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Landlord and tenant disputes
General
The Residential Tenancies Act 1986 does not apply to motels/hotels, lodging or boarding houses or premises used for
temporary/transient accommodation. Provisions of the Trespass Act should be used in these cases.
For a full list of exclusions, see section 5 and 5A.
Every tenancy agreement must be in writing and signed by both tenant and landlord (the landlord must give the tenant a copy).
Note: Under section 13C, any part of the Act is enforceable even if nothing was put down in writing.
Can a landlord seize or dispose of property?
Tenant's goods cannot be seized or disposed of by the landlord:
‑ as security for or in payment of any amount owing by way of rent, or
‑ for any other reason arising from the tenancy
unless:
‑ subject to an order of the tenancy tribunal, or of any court on appeal of the tribunal
‑ goods disposed of under sections 62 to 62C of the Act, or in accordance with regulations made for the purposes of section 62(3A)
when premises are contaminated, or
‑ foodstuffs and other perishable goods if the landlord has reasonable cause to believe the tenant has abandoned the premises.
(s33)
Seizing or disposing of any goods in contravention of section 33(1) is an unlawful act. Under Schedule 1A (Amounts for unlawful acts)
of the Act the amount for a section 33 unlawful act is $3,000 in any proceedings before the tribunal.
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Repossession and hire purchase
Introduction
Most repossession of goods, including vehicles, are handled by creditors or their agent alone without incident and without Police being
involved.
Requests to attend a repossession
If a creditor or their agent believes a repossession may be difficult, e.g. because the debtor may become violent, or otherwise breach
the peace, Police may be requested to attend the repossession. In these circumstance Police functions include preventing a breach of
the peace and crime prevention, not to assist the creditor or their agent with repossession.
The key issues for Police when asked to attend a repossession are:
‑ Is Police presence necessary or appropriate to prevent a breach of the peace?
‑ Is the repossession lawful?
In addition, Police responding to a request to attend a repossession will need to consider Police priorities at the time the request is
made. If there are other more urgent matters requiring Police attendance, you may need to discuss alternative times.
Basic rules about repossessions under Credit Contracts and Consumer Finance Act 2003
The complexities of civil law and repossessions are beyond the scope of this instruction. However, it is helpful to be aware of the basics
relating to repossession of consumer goods under the Credit Contracts and Consumer Finance Act 2003.
When a person uses a consumer good as security for a loan (for example under a hire purchase agreement) the person signs a contract.
In the conditions (fine print) it says that the seller has the right to take back the goods if the buyer defaults in payment. This is called
repossession.
The rules regarding repossession of consumer goods are set out in subparts 2 and 4 of Part 3A of the Credit Contracts and Consumer
Finance Act 2003. Subject to rules and limitations in the Act a creditor or their agent has a lawful right to enter premises and repossess
goods if:
‑ a debtor is in default under the credit contract or the goods are at risk and the creditor complies with:
‑ Part 3A requirements imposed on them, and
‑ lender responsibility principles set out in Part 1A, relevant to the repossession
(s 83E)
‑ the goods are at risk and the creditor believes on reasonable grounds that the goods have been, or will be destroyed, damaged,
endangered, disassembled, removed, concealed, sold or otherwise disposed of contrary to the provisions of the relevant credit
contract.
Note: Consumer goods are not at risk merely because another creditor has, in relation to those consumer goods, given the debtor a
repossession warning notice.
(s83E)
Rules applying at time of repossession
Rules that apply at the time of repossession to a creditor or creditor's agent include:
‑ must allow debtor time to remedy default or at least 15 days to elapse (s83N)
‑ must produce certain documents on entry (s83O)
‑ must comply with certain requirement for entry if occupier not present (s83P)
‑ must exercise right to enter premises in accordance with lender responsibility principles (s83Q)
‑ must not enter premises if complaint (in writing relating to enforcement action) not resolved or unforeseen hardship application
not decided (s83R)
‑ must not enter residential premises at certain times (s83S)
‑ restrictions applying in relation to persons repossessing consumer goods (s83T).
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Note: The requirement for a copy of the repossession warning notice and other documents under section 83O to be left on the
premises does not apply if the repossession takes place from a public place such as in the case of the repossession of a motor vehicle.
Trespass
A repossession agent cannot be treated as a trespasser even if warned off the property by the purchaser. They can however be a
trespasser if the purchaser is not an occupier of those premises.
If the goods have been removed to premises occupied by a third party, any consent given by the debtor to enter those premises may
not be an effective consent to enter as this has to be given by the person in control of those premises.
Note: Police have no right to enter or remain on the premises under the Credit Contracts and Consumer Finance Act 2003.
Procedure if requested to attend a repossession
Follow these steps if a creditor or their agent requests Police assistance with repossession.
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StepAction
1
Assess the risks raised by the intended repossession by:
‑ considering information supplied by the person doing the repossession along with information from Police sources
relating to the debtor, their associates and the address of the repossession
‑ assessing whether there is a risk that there may be a breach of the peace, warranting Police presence
‑ if assessment indicates a risk, apply TENR for considering the safest outcome.
2
Check that the creditor or agent has the necessary documentation required:
‑ if the goods are consumer goods, a copy of the repossession warning notice (unless repossession is on the basis that the
goods are "at risk", then debtor's name and address from which the goods will be repossessed, creditor's contact details
and the reason why the goods are being repossessed):
‑ a copy of the credit contract
‑ a copy of the creditor's or creditor's agent's licence or certificate of approval (under the Private Security Personnel
and Private Investigators Act 2010)
‑ a written statement that specifies the premises have been entered and the date of entry and an inventory of
consumer goods to be taken
‑ a written statement setting out the debtor's rights following repossession to make a complaint about the creditor or
creditor's agent's conduct
‑ in all other cases, a copy of the contract setting out the right to repossess the property.
In the case of:
‑ a creditor's agent, evidence of authority from the creditor to take possession of the goods on the creditor's behalf,
‑ an out of hours entry onto private property, the debtor's written consent to the exercise of right of entry).
3
Provide an appropriate Police presence to attend the scene with the creditor or agent.
Note:
‑ Police only attend a repossession to prevent a breach of the peace and do not provide assistance to the creditor or their
agent.
‑ An 'appropriate Police presence' may not be immediately available due to other Police priorities. Discuss alternative
times.
‑ Powers of entry under the Credit Contracts and Consumer Finance Act 2003 relate to the creditor or their agent and Police
have no specific powers under this Act to enter or remain on private property.
4
At the scene:
If…
consider…
the creditor or agent is being
warning, arrest and prosecution
threatened or assaulted
wilful and forcible obstruction of
‑ in case of minor forcible obstruction, advise creditor or agent to withdraw before
the creditor or their agent occurs
violence or a breach of the peace occurs and for them to seek legal advice about other
civil remedies.
‑ in case of major forcible obstruction, arrest and prosecution for assault
the debtor has disposed of the
prosecution for causing loss by deception, section 240 of the Crimes Act 1961.
property with intent to defraud the
creditor
Related information
See the part relating to 'Repossession agents/employees' in the 'Dealers and traders' chapter for law and good practice relating to
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licensing and the businesses of repossession agents and repossession employees.
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Shoplifting
Shoplifters not to be charged with burglary
See Police v Barwell, CRI‐2006‐409‐77 July 6, 2006, Judge John Hansen J High Court Christchurch for the decision relating to
shoplifters not to be charged with burglary.
See also the 'Charging decisions' chapter for further guidance about making food charging decisions that are nationally consistent.
On arrival at the scene
By the time you arrive at the scene, the investigation may already be under way. Often the suspect has already been apprehended and
interviewed by the store employees or security staff.
Interview the victim, store employees and security staff. Record whether the suspect:
‑ was seen removing the property
‑ hid the property ‐ if so, where
‑ tried to pay for the property
‑ left the shop with the property
‑ was alone
‑ is known to the staff or management
‑ has been interviewed ‐ what did they say.
Also find out:
‑ where the property is
‑ its value
‑ whether it is identifiable ‐ if so, by whom, and how.
Interviewing the suspect
See the 'Investigative interviewing suspect guide' in the 'Interviewing' chapter for guidance with interviewing.
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Animal/stock thefts
Complaints about stolen stock may be genuine, mistaken, or an attempt to conceal fraud. Be alert to the possibility of poor farm
management as a reason for stock losses. See ‘Theft of livestock and other animals’ in this chapter for the offence and penalty.
Initial action
Examine stock records to check the accuracy of the victim's figures. Obtain details of:
‑ the tallies giving rise to the complaint (when were they taken, and why)
‑ purchases
‑ sales.
Interviewing the victim
Interview the victim and obtain a statement including:
‑ a description of the farm, including:
‑ size and layout. Prepare an approximate scale plan showing boundaries, nearby roads and neighbouring farms
‑ type of land. For example, is it grassed or in scrub? Are there any natural hazards
‑ type and condition of the fences and gates
‑ this stock information:
‑ when the stock count was last found to be correct and the accuracy of these figures
‑ the reason for that muster or check, and the person responsible for it
‑ subsequent stock movements
‑ any provisions made for inspecting and overseeing stock
‑ when, and under what circumstances, the shortage was discovered.
Verify the information from stock records.
‑ Details of:
‑ purchases and sales
‑ stock agents
‑ employees, including carriers.
‑ A full description of the missing stock, covering:
‑ number, breed and value
‑ earmarks, brands and tattoos, where applicable. Ascertain the earmarks of purchased stock and find out if the victim's
earmark was subsequently added. Obtain a diagram of each.
‑ Details of stock returned to or from neighbouring farms.
‑ Any suspects and reasons for suspicion.
‑ Details of any parties who may have a financial interest in the reported loss.
See the 'Investigative interviewing witness guide' in the 'Interviewing' chapter for specific guidance with interviewing witnesses. Note
that witnesses in the investigative interviewing guidelines includes victims.
Examining the farm
Follow these steps.
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‑ 'Animal identification and tracing' chapter describes Police powers provided for in the National Animal Identification and
Tracing Act 2012
‑ 'Interviewing' chapter for specific guidance with conducting interviews
‑ 'LOA ‐ Federated Farmers of New Zealand' outlines the agreement of co‐operation between them and Police
‑ 'MOU ‐ Agriculture and Forestry' outlines the collaborative working relationship between the Police and the Ministry of
Agriculture and Forestry, now known as the Ministry of Primary industries.
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s.6(c) OIA
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