Shute article is at pages 445-458 Crim. L.R 2002, June - Coursework Example

In 1997 she was charged with six counts of theft, five counts covering moneys withdrawn and one count of a television set transferred by Mr. Dolphin to the appellant. In November the appellant was tried. The prosecution claimed that the appellant had prejudiced and coerced Mr. Dolphin to make the withdrawals from his account into hers. Evidence produced included documents with the summary of the flow of the funds. Further, Building society employees’ testimonies about the frequent visits by the appellant and Mr.

Dolphin to effect the withdrawals was also included. The appellant was claimed to have done most of the talking. A doctor also assessed Mr. Dolphin's I.Q. and found it to be low, claiming that Mr. Dolphin was capable of living a normal and undemanding life. He described him to be naive and trusting so much and as well one with no ideas of the value of his assets or the ability to calculate their value. Although, he acknowledged that Mr. Dolphin would be competent in making a gift and understood the concept of ownership.

He also thought that Mr. Dolphin was capable of making the decision to deprive himself of money, but that it was unlikely that he could make the decision alone. The appellant denied having no money except a check for a loan. In civil law, transactions that are renderer voidable are transactions involving minor, mental impaired persons, those entered into through duress, undue influence, mistake or misrepresentation. In this case, the transaction was therefore voidable in civil law as Mr. Dolphin was mentally incapacitated.

In law, for a gift to be valid, it depends on three things, that is delivery, the intent to donate, and acceptance when done. Although, the court also evaluates to make sure that there is actuality, to make sure that one was not defrauded by the donor, coerced to make the gift, or powerfully prejudiced in an unfair manner. There has to be an intent to deliver the title to the donor. In equity, to make a gift, one has to reassign legal title to the donee. Law cannot then step in to help if one has not complied with the formalities necessary to transfer legal title to hold on trust for the beneficiary.

On her appeal, Hinks grounds were that there was no appropriation since she acquired a perfectly valid gift. The Court of Appeal rejected this ground, stating that the issue that had been made a valid gift was irrelevant to the question of whether there had been an appropriation. Indeed, it held that a gift may be evidence of an appropriation. According to LJ Rose, Section 1 of the Theft Act 1968 does not require that there has been no gift, but merely that there has been an appropriation. Such an approach would be inconsistent with the cases of Lawrence v Metropolitan Police Commissioner [1972] A.C. 626 and R v.

Gomez [1993] A.C. 442. The state of mind of the donor is irrelevant. It was said that the authorities maintain a strong distinction between the separate ingredients of dishonesty and Appropriation. Shute,1 makes arguments concerning the issue of theft and appropriation. He puts forth the following points; The case sets up a conflict between the criminal and civil law. The law appears to be hypothetical, by telling Hinks that she received a valid gift in civil law, but stole it in criminal law.

Steyn LJ, in the majority decision, accepted a possible conflict, but stated that this was acceptable, due to the different goals that civil and criminal laws have. The civil law