Larceny as a Clerk or Servant

Question 1

Under what Section of the Crimes Act would you find the offence of Larceny by a Clerk or Servant?

Answer 1

Section 156 Crimes Act

Question 2

Under what Section of the Crimes Act would you find the offence of Embezzlement?

Answer 2

Section 157 Crimes Act

Question 3

When an offender has embarked upon a continuous course of conduct of theft or embezzlement of the employer’s property over a period of time and it is not possible to ascertain exactly when each theft has occurred, which Section of the Crimes Act may be appropriate to use?

Answer 3

Section 161 of the Crimes Act - the general deficiency section

Question 4

What is the difference between Larceny as a Clerk/Servant and Embezzlement?

Answer 4

Embezzlement = before the till

Larceny as a Clerk/Servant = after the till

Question 5

Who is considered to be a Servant/Clerk? Who is not?

Answer 5

Defined at Section 155. It is a question of fact. Clerk/Servant is broader than just an employer/employee relationship. The gravamen of the relationship is control.

Question 6

Is it a question of fact that the jury considers who is a clerk/Servant and who is not and why is it important?

Answer 6

Yes it is a question of fact. X

Question 7

Where is the definition of “property” found and what is it?

Answer 7

Found in Section 4 of the Crimes Act (Definitions Section) - Property includes: every description of real and personal property; money, valuable securities, debts, and legacies; and all deeds and instruments relating to, or evidencing the title or right to any property, or giving a right to recover or receive any money or goods; and includes not only property originally in the possession or under the control of any person, but also any property into or for which the same may have been converted or exchanged, and everything acquired by such conversion or exchange, whether immediately or otherwise.

Question 8

What commonly misunderstood proof cannot be overcome by the general deficiency section (Section 161)

Answer 8

money if there is proof of general deficiency – therefore not stealing as not tangible property

Question 9

What is larceny by a clerk?

Answer 9

Employee stealing property from their employer. It provides a harsher penalty than larceny in recognition of the breach of trust involved.

Question 10

Is larceny as a clerk/Servant before the till or after the till?

Answer 10

After the till

Question 11

Is Embezzlement before the till or after the till?

Answer 11

Before - possession is the difference. With Embezzlement it has not officially come into the employer’s possession.

Question 12

If a dishonest employee alters records or omits to record relevant items xxxx

Answer 12

Xxxx

Question 13

What are the elements of the offence of larceny by a clerk or servant?

Answer 13

All the proofs of larceny PLUS

1. The Accused was clerk/servant (employee)
2. Property was owned by the Accused’s master (employer) or was in the power or possession of her or his master (employer), and
3. The Accused stole such property.

Question 14

What is the penalty for larceny as clerk/servant?

Answer 14

10 years imprisonment

Question 15

Does property the subject of an offence of larceny by clerk/servant have to be owned by the employer?

Answer 15

No, not necessarily. It can be leased.

Question 16

What are the proofs of larceny?

Answer 16

1. Property charged must be the subject of larceny at common law
2. Property belongs to another
3. Taking (trespass) of the property
4. Carried away (asportation)
5. Taking without consent
6. Taking with intent - permanently deprive
7. Taking without claim of right
8. Taking was dishonest

Question 17

What does the larceny as a clerk/servant indictment (Section 156 of the Crimes Act) state?

Answer 17

Whosoever, being a clerk or servant, steals any property belonging to, or in the possession, or power of, his master, or employer, or any property into or for which it has been converted, or exchanged, shall be liable to imprisonment for ten years

Question 18

Discuss element 1 of the offence (Clerk/Servant)

Answer 18

Defined at Section 155 of the Crimes Act:

155 Definition of clerk or servant
Every person employed for any purpose, as, or in the capacity of, a clerk, or servant, or as a collector of moneys, although temporarily only, or employed also by other persons, or employed to pay as well as receive moneys, or although the person had no authority from his or her employer to receive money, or other property, on his or her account, shall be deemed a clerk, or servant.

• • Clerk/Servant is broader than just employee/employer
• • The Gravaman of the relationship is CONTROL
• • is a question of FACT

Question 19

What are some examples of evidence that could be adduced to prove a clerk/servant relationship?

Answer 19

• Where the relationship has been reduced to writing, the document should be tendered. (Contract)
• Evidence of how the employee is paid should be adduced (salary/wage/commission basis etc)
• Evidence of the duties of the person, where the duties are carried out, hours of work, etc, may all be indicators of the existence of the master/servant relationship.

Question 20

What are some of the examples that can be adduced to prove that someone was an clerk/servant and therefore committed the offence?

Answer 20

Examples of evidence that could be adduced include:

o Document outlining employment (contract)

o Evidence of how the person is paid (payslip)

o Evidence of the duties of the person, where they work, hours of work, etc

Question 21

What does the caselaw of R v Negus say in relation to whether a person is a clerk/servant?

Answer 21

R v Negus – “ascertain whether person is bound to obey the orders of his employer so as to be under the control of his employer”

Question 22

What is ‘proof of general deficiency’ and under which Section of the Evidence Act is the offence found?

Answer 22

Section 161 – this applies to larceny as clerk and embezzlement, where the charge is in respect to money, it shall not be necessary to prove stealing of any specific sum of money if there is proof of general deficiency – used when cannot prove a specific amount of money was taken on a specific day

Question 23

Element 2

Answer 23

X

Question 24

Element 3 Larceny

Answer 24

Must prove all the elements of larceny

Question 25

Embezzlement elements

Answer 25

X

Question 26

Element 1 Embezzlement

Answer 26

X

Question 27

Alternative Verdicts

Answer 27

X

Question 28

What are the elements of the offence of Embezzlement?

Answer 28

X