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Despite the allure of change of position for restitution lawyers, I am afraid that the criminal law has yet found no place for the concept. Nonetheless, I fear that Mr Anz 's lawyer, in advising his client to plead guilty, may not have covered himself entirely with glory.

It is true that whether a transfer is void or voidable often makes no difference to the criminal law, but that does not quite dispose of the problem here, since there seems to be no question of Anz having received a voidable title. He either received title simpliciter, or no title at all. The case of voidable title arises (in this context) only if the mistake were induced by deception, etc; and that would be a different type of criminal offence. [Incidentally, s 5(4) of the UK Theft Act only applies - if I remember correctly - to theft of money proceeds from the oversupply. Hence it would not be available on these facts.]

It appears that whether Anz received any title to the chips still depends on old cases regarding the type of mistake made. If the croupier handed over (say) 16 $200 chips, thinking that they were 16 $50 chips, the mistake would be regarding the identity of the property handed over, and title would not pass at all: R v Ashwell (1885 QBD, I think). On the other hand, if the croupier simply miscalculated the amount owing, s/he would have intended to transfer ownership of the $3200-worth of chips that was actually handed over. Hence title in the whole quantity would have passed to Anz: Moynes v Coopper [1956] QB; Ilich (1986) 162 CLR.

In the former case, the excess chips were capable of being stolen, notwithstanding that they were an unascertained part of an ascertained whole. But in the latter case things are rather more complicated. Traditionally, it was thought (at least by criminal lawyers) that a mistake of this variety left P [the casino] a mere debtor, and that title would only be voidable if there had been fraud, duress, deception, etc, on the part of D. Merely taking silent advantage of another's mistake was not the stuff of the criminal law.

If, pace Lord Browne-Wilkinson in Westdeutsche, Chase Manhattan Bank is to be believed, the casino would have retained an equitable proprietary interest in the chips. Here English and Canadian law part company. In England, that would certainly be a sufficient interest for theft under the Theft Act 1968. In Canada, however (unless the legislation has changed in the last couple of years?), theft requires either a taking or conversion, with intent to deprive the owner "or anyone with a special property or interest". Provided the Canadian legislation has been interpreted consistently with similar sections in other Commonwealth jurisdictions, a mere equitable proprietary interest would not qualify.

A further complication would arise if there is an equivalent of the Gaming Act operating in Canada. In such case, Anz would have had a better right to the chips than anyone else, and surely could not have been guilty of theft (cf Morgan v Ashcroft, 1938 KB).

In England, since Gomez, most of this would not matter since - incomprehensibly - a violation of property rights appears no longer to be required for a theft to be committed. All in all, however, in Canada pleading guilty would seem not to be the optimal strategy.

Andrew Simester