Larceny

Question 1

List the proofs of Larceny?

Answer 1

1. The accused
2. Property charged must be the subject of Larceny at Common Law
3. Property belongs to another
4. Taking (trespass) of the property
5. Carried away - Asportation
6. Taking without consent
7. Taking with intent - permanently deprive
8. Taking without claim of right
9. Taking was dishonest

Question 2

What section provides for the penalty for Larceny

Answer 2

Section 117 of the Crimes Act

Question 3

Which case provides a succinct definition of larceny?

Answer 3

Ilich v R (1987) - Provides the elements for the common law offence of Larceny

Question 4

To prove the first element of Larceny (The accused) do you need to have evidence which positively identifies the accused for each element of the offence?

Answer 4

Yes.

Question 5

What happens if there is a reasonable inference that another person committed one or all of the elements of the crime?

Answer 5

The accused will be found not guilty. s141 Evidence Act - Prosecution in every case have an obligation to prove their case beyond a reasonable doubt.

Question 6

For an inference to be reasonable, is mere conjecture reasonable? Cite Case Law

Answer 6

The Queen v Baden Clay (2016) - For an inference to be reasonable it must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence.

Question 7

List some example where positive ID evidence or evidence excluding other defendants is important?

Answer 7

• Defendant was not acting alone but charged as acting alone
• Offence occurred in crowded place where another may have committed/contributed to crime
• Offences involving injuries - to ensure injury was not sustained before the offence

Question 8

Can all property be stolen at Common Law? List the elements required for property to be subject to larceny at common law

Answer 8

Not all property can be stolen at common law. To be the subject of larceny at common law the property must be:

1. Moveable
2. Tangible
3. Of some Value
4. Of the description charged

Question 9

Can real property be stolen? Why?

Answer 9

No. It is not moveable and therefore not subject to Larceny at common law. It cannot be “taken and carried away”

Question 10

What is a common word used to describe items attached to land? Can they be stolen?

Answer 10

Fixtures. Land or anything forming part of it or permanently attached to it is not capable of being stolen. ITEMS ATTACHED TO THE LAND ARE TAKEN TO BE PART OF THE LAND.

Question 11

If a person severs a fixture on real property, can the person steal it under COMMON LAW? Under what circumstances could they steal it?

Answer 11

No. If person severs it and immediately takes it, it is a fixture and cannot be stolen. If the person abandons it and later returns to take the severed item (no longer a fixture) then they could steal it. Or alternatively someone else could steal the severs fixture.

Question 12

Is all property attached to land deemed to be real property?

Answer 12

No. You have to ask whether the fixture is for a temporary or permanent purpose.

Question 13

Are title deeds classed as fixtures?

Answer 13

Title deeds have been held to be fixtures because a legal fiction identifies them with the land. Section 134 remedies this (it refers to valuable security which includes “deeds” in its definition”

Question 14

What remedies have been put in place to remedy the common law position in relation to stealing fixtures?

Answer 14

Section 139 of the crimes act essentially states that stealing of certain fixtures are liable to be punishable as for larceny.

Question 15

What does it mean in relation to property being tangible?

Answer 15

Means that the property must have “physical substance, something which can be taken hold of and carried off”. The property is not required to be visible, but merely have substance.

Question 16

Provide an example of property that is not tangible.

Answer 16

A copyright, a debt or a bill of exchange. For a bill of exchange, the document itself is subject to larceny but not the chose in action represented by it (right of proceedings in a court to procure the payment of a sum of money). Has been held that gas could be stolen

Question 17

Is it the amount of money stolen or the objects themselves that are stolen? How would you refer to this on a charge sheet.

Answer 17

It is the pieces of paper and metal discs that are subject to larceny not the amount. The amount is taken into account upon sentence. So $200 in monies on a charge sheet should be changed to something more appropriate such as 10 x $20.00 notes. Remember money in bank accounts cannot be stolen. There is no ownership over the actual notes and coins in the bank, just the chose in action that it represents.

Question 18

When an item is property subject to larceny, when considering it must be of some value, is artistic or sentimental value a form of value?

Answer 18

No. The value must be an actual economic value. So doesn’t matter if a person states the wrong amount so long as it holds some value. It may not necessarily be of the value of any known coin or even the hundredth part of a farthing.

Question 19

Is larceny a table 1 or table 2 offence?

Answer 19

Table 2 (only prosecution can elect) if under $5000. Table 1 (Both prosecution or defence can elect) if over $5000.

Question 20

What section covers maximum penalties for Table 2 offences? What is the max penalty for stealing under $2,000.

Answer 20

Section 268 of Criminal Procedure Act - Max penalty is 20 penalty units unless its an offence under s154A of the crimes act (Take conveyance without consent) which is 50 penalty units.

Question 21

When property stolen is being described does the description need to be precise?

Answer 21

No. It is not necessary that the precise objects stolen be identifiable. It is necessary that the prosecution prove that the property alleged in the information is of the same CLASS of property disclosed by evidence.

Question 22

When considering property belonging to another, what the 4 different ways property can belong to another?

Answer 22

1. Possession
2. Control
3. Ownership
4. Property without owner

Question 23

What are the two types of possession

Answer 23

1. Physical - person intending to control and having physical control over it.. OR the means to assume physical control over it.
   There is both actual physical control and de-fact physical control.

Actual - has it on their person or in their presence.

De-facto - have property in a place “where they alone have exclusive right or power to place their hands on it”.. A person can possess property without actual knowledge of its existence.. e.g. abandoned golf balls. Golf club owns them.

2. Constructive
   Deemed to have possession (not within their physical possession) and they have a legal right to physically possess that property whenever they wish to assert that right. E.g. Employee has custody of property even though employer has constructive possession of it even though not physically controlled by employer.

Question 24

Can you steal property from someone who does not have possession but has control over such property?

Answer 24

Yes. (Ownership) So a servant hands over a computer in her custody belonging to the owner is the same as robbing the servant directly. Or a night watchman guarding a safe…even though had no knowledge of the contents of the safe, he would be regarded as having physical control of the safe.

Question 25

Can an owner of property be convicted of larceny?

Answer 25

Yes. Rose v Matt [1951] - left clock as security. He stole the property back when owner wasn’t there. Is larceny,.

Question 26

Can joint owners be subject to larceny?

Answer 26

Yes. See section 162 crimes act.

Question 27

What if property through inadvertence is no longer in the possession or control of someone, but the owner wishes to exclude trespassers from the property. Can it be stolen?

Answer 27

Ownership is recognised. E.g. cheque stolen from dead person. The owner is deemed to be person to whom title is passed from dead person.

Question 28

Does possession of property have to be lawfully held in order for the property to be subject to larceny at Common law?

Answer 28

No. Example is that someone can steal someones drugs, even if defence argues she/he had no right to be in possession of them.

Question 29

Is property that is lost or misplaced by the owner still subject to larceny at common law?

Answer 29

Yes. R v MacDonald [1983] - if property is lost and finder really believes the goods have actually been lost and really believes owner cannot be found it is not larceny..
BUT if he takes them …reasonably believing the owner can be found it is larceny….In applying this rule …amongst other things the case states that evidence such as the place where it was found or the nature of the marks upon it.

Question 30

Are wild animals owned by anyone? Can they be stolen?

Answer 30

No. Not owned by anyone and can therefore not be stolen…if ownership were to exist, only in the owner of the land at any moment.It would be futile to recognise any such mutable ownership.

Question 31

When can an animal be reduced to possession/ownership?

Answer 31

1. if its dead
2. Reclaimed (tamed) and known to be so
3. Confined

Question 32

Is lost property subject to larceny?

Answer 32

If it is truly lost then it is not deemed to have an owner and therefore not subject to larceny. If the owner is capable of being found then it could be stolen… depends on the STATE OF MIND of the FINDER

Question 33

In larceny by finding how do you establish felonious intent when property is thought to be lost? (Lost Property)

Answer 33

R v Thurborn (1849) - Really believes owner cannot be found, then its not larceny. But if reasonably believing owner can be found then its larceny.

R v MacDonald [1983] - Finders belief to be inferred from facts and circumstances. Are the actions consistent with an honest man finding the goods. Did finder examine for clues, any name tags etc; what avenues reasonably open to locate owner; finder may be taken to know that owner may retrace his steps…or owner may contact police…

Question 34

What is the difference between lost property and abandoned property?

Answer 34

Lost property - finder reasonably supposes the goods to be lost and believes that the owner cannot be found. That belief is from circumstances of case.

Abandoned Property - Ability to find owner not important. What is important is intention of PREVIOUS OWNER. Intention to be drawn from circumstances.

Question 35

What is the case law for abandoned property not being able to support a charge for larceny?

Answer 35

R v White (1912) - property which has been abandoned could not support for a charge for larceny.

Question 36

Is refuse put in a dustbin abandoned? cite case law

Answer 36

Williams v Phillips (1957) - refuse put in dustbin is not abandoned. It was the households property until it was taken away; when it became the corporations property.

Question 37

Can you have a larceny without trespass?

Answer 37

No.

Question 38

Can you have a trespass without larceny?

Answer 38

Yes. Trespass is committed once you lay hands on the article to be stolen..but defendant needs to go further and remove the item from where it was resting. Trespass (taking) is exclusive of asportation (carrying away).

Question 39

What is the case of R v Leigh (1800)

Answer 39

Burning store.. person takes goods out of store then converts to his own use. The initial taking of the goods not considered to be a trespass as it was for protection of property and therefore later conversion to own use could not be a larceny.

Question 40

What is the doctrine of continuing trespass?

Answer 40

There must be a felonius intent at time of taking. Doctrine of continuing trespass is a legal fiction which allows for a person who takes goods but later forms the requisite intention to permanently deprive. Basically no intention to appropriate at time of trespass…but is continuing to trespass until turns mind as to what to do with property.

Question 41

How far must goods be moved to satisfy asportation?

Answer 41

Need not be moved any specified distance. R v Lapier (1784) - earring taken from a woman’s ear but caught in her hair was a taking and carrying away.

Question 42

Can an innocent agent be used to commit element of asportation?

Answer 42

Yes. they can be instructed to move something under belief that the defendant is owner. Defendant considered to be the one committing asportation albeit through the innocent agent.

Question 43

When an owner gives over property with consent. When can that consent be vitiated?

Answer 43

If it is given due to intimidation, Trick or mistake.

Question 44

For consent to be vitiated due to trick, what three elements must be satisfied for “trick”

Answer 44

1. Possession obtained by trick
2. Accused intends to steal goods when he obtained them; and
3. The owner does not intend to part with their ENTIRE property in the goods, but ONLY with the temporary possession of them.

REMEMBER when owner intends to part with entire property in goods, not just temporarily, then is is a fraud offence under s192E

Question 45

In terms of “without consent” If both parties make a mistake is that larceny?

Answer 45

Possibly…Intention of receiver at time of discovering the property will be important. Larceny if mistake made by one party

Question 46

R v Middleton?

Answer 46

Handed over money by a cashier that was intended for another customer. Cashier made a mistake so no consent. Defendant knew of mistake and so had committed larceny.

Question 47

What three criteria must made out for a mistake to be fundamental?

Answer 47

1) mistake as to identity of transferee
2) mistake as to identify of thing delivered
3) Mistake as to quantity of the thing delivered (holds difficulty when its money)

Question 48

Do you need to prove the element of trespass when there has been a mistake due to trick, intimidation or mistake?

Answer 48

No.

Question 49

What is a Case for temporal nexus?

Answer 49

R v Riley - white faced lamb taken by mistake … continuing trespass.. so when he turned his mind to it and converted for his own use he committed larceny.

Question 50

When does abandonment of property occur?

Answer 50

Abandonment occurs where an owner is indifferent to any future asportation of them by others, where the owner leaves them ‘for anybody to take (them)
away’: see Williams v Phillips (1957) 41 Cr App R 5 at 8

Question 51

Implied consent - Does an employer provide implied consent for an employee to move items when the employee intends on stealing those items?

Answer 51

Kolosque v Miyazaki - Truck driver stole from his employer by moving goods in the back of his truck to another part of the truck. Even though he had an implied consent from his employer to move the goods, but didn’t allow him to breach that licence granted to move the goods for his sole purpose of employment.

Question 52

Intent to permanently deprive: If someones intention is to return goods to the owner in a substantially altered state, is larceny committed?

Answer 52

Yes. R v Smails (1957) - Employee of railway, split some rail sleepers in half to support a structure he’d built next a tent he’d pitched on rail property. Guilty of larceny because he’d intended to alter the sleepers to such an extent that they could no longer be used in the condition that they were provided.
An alteration MUST BE SUBSTANTIAL to infer the intent to permanently deprive.

Question 53

For the purpose of intent to permanently deprive, is wear and tear on a car considered to be substantially altered to infer intent to permanently deprive? Cite Case Law

Answer 53

No - R v Bailey [1924] - accused who took a car did not substantially alter its
condition through wear and tear to an extent that it could not be used in the condition it was in at the time
it was taken

Question 54

What happens if a person said they intended to return the property when they had in fact formed the intention to permanently deprive the owner?

Answer 54

s118 of the Crimes Act says that it is not a defence if the accused states there is an Intent to return property.

Question 55

Which case considers s118 of the Crimes Act in taking ownership of goods?

Answer 55

Foster v R (1967) - It deals with the case of an accused who has appropriated the property and not of an accused who has only assumed possession of it. It merely ensures that the consequence
of forming or having that intention is not defeated by an intention eventually to restore the property to the true owner. Thus, if the intention is to deprive the true owner of possession for a limited time,
larceny is not made out. But if the intention of the taker is to exercise ownership of the goods, to deal with them as his own, an intention later to restore the property in the goods will not prevent the original taking being larcenous.

Section 118 makes it clear that you cannot hold both an intention to convert property to your own use (take ownership of the property) and at the same time intend to eventually return it.

Question 56

Without Claim of Right: What is the leading case on the defence of claim of right?

Answer 56

R v Fuge [2001] - Pohl and RB held a bona fide belief that Hungry Jack’s owed her a sum of money, then the taking of that sum of money from the restaurant, in circumstances which otherwise would have involved robbery would not have constituted an offence on their part. There is an absence of Mens Rea.

Same principle applies to any crime of which larceny is an element. It also extends to any person who takes property on behalf of another.

Question 57

What are the authorities on the defence of claim of right.

Answer 57

a) the claim of right must be one that involves a belief as to the right to property or money in the hands of another
b) the claim must be genuinely, ie honestly held, it not being to the point whether it was well founded in fact or law or not
c) while the belief does not have to be reasonable a colourable pretence is insufficient
d) the belief must be one of a legal entitlement to the property and not simply a moral entitlement:

e) the existence of such a claim when genuinely held, may constitute an answer to a crime in which the means used to take the property involved an assault, or the use of arms; the relevant issue being
whether the accused had a genuine belief in the legal right to the property rather than a belief in a legal right to employ the means in question to recover it.

f) the claim of right is not confined to the specific property or banknotes which were once held by the claimant, but can also extend to cases where what is taken is their equivalent in value, of which Langham and Lopatta provide examples; although that may be qualified when, for example, the property is taken ostensibly under a claim of right to hold them by way of safekeeping, or as security for a loan, yet the actual intention was to sell them
g) the claim of right must, however, extend to the entirety of the property or money taken. Such a claim does not provide any answer where the property or money taken intentionally goes beyond that to which the bona fide claim attaches: Astor v Hayes (1988)
h) In the case of an offender charged as an accessory, what is relevant is the existence of a bona fide claim in the principal offender or offenders, since there can be no accessorial liability unless there has in fact been a foundational offence
i) It is for the Crown to negative a claim of right where it is sufficiently raised on the evidence, to the satisfaction of the jury

Question 58

What case deals with measuring and assessing the subjective mind in relation to the dishonesty element of Larceny?

Answer 58

R v Ghosh [1982] - accused must have acted with a dishonest mind, something to be assessed upon the subjective mind, but measured to the ordinary standards of reasonable and honest people.

It is dishonest for a defendant to act in a way which he knows ordinary people consider to be dishonest, even if he asserts or genuinely believes that he is
morally justified in acting as he did.