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LAWCOMM 442 - Personal Property LN.docx
LAWCOMM_442_-_Personal_Property_LN.docx
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LAWCOMM 442 - Personal Property LN.docx-Don Lye 17...
LAWCOMM_442_-_Personal_Property_LN.docx-Don Lye 171346040 LAWPUBL 442: PERSONAL
LAWCOMM 442 - Personal Property LN....
LAWCOMM_442_-_Personal_Property_LN.docx-Don Lye 171346040 LAWPUBL 442: PERSONAL
Page 25
Don Lye
171346040
This case illustrates that in terms of initial acquisition of property, court may assume
requirement for exclusive possession. This view may be moderated if the subject matter
does not readily yield itself to immediate possession.
3.1.2.2
R v Ellerm
[1997] NZCA
Criminal proceedings – focus on the abandonment aspect.
A commercial developer was developing a site on the shores of a lake had obtained obtained
from lake bed Rimu logs.
In proceedings for theft in respect of rimu logs, abandonment was considered.
Heron J (Judgment of the Court)
“It is clear that in one way or another the logs which were at the bottom of the lake bed,
had at one time belonged to those persons engaged in the milling process.”
“Some logs had recently been recovered by use of an inflation raft process which may not
have been available at that time and probably underpins an assumption that they were
abandoned. The same inference of abandonment is available as against those persons
who may have owned the logs in transit. By virtue of their having fallen to the bottom of
the lake it would likewise be a relatively safe inference that they had at that point been
abandoned.”
“At the loading points sometimes the logs would slide down on the skids. He said there
was little effort made to recover the ones that sank because timber was so readily
available no one worried about it.”
Commentary
Courts are generally conservative in accepting an abandonment submission because it
deprives the legal owner of their right to the property.
At the time the logs were lost – were of little value, and doubted whether the technology
to recover them existed. Currently, the Rimu logs were of a high value.
o
Inference of abandonment – at the time the logs were lost.
3.1.3
Intention to Control
3.1.3.1
Warner v Metropolitan Police Commissioner
[1969] 2 AC 256
(HL)
Defendant was returning from a party in a pub, two boxes containing products.
Police stopped him and investigated the contents of the two boxes.
In Box 1, there was perfume. In Box 2, there was 20,000 amphetamine tablets.
Defence was that he thought both boxes were identical and contained perfume.
Lord Pearce (majority)
"I think that the term 'possession' is satisfied by a knowledge only of the existence of the
thing itself and not its qualities and that ignorance or mistake as to its qualities is not an
excuse. This would comply with the general understanding of the word 'possess.'"
Commentary (see next page)
Commentary
The question of knowledge in intention to control.
o
Can the fact that a party is unaware of contents negative intent to possess the
goods?
25
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