Larceny As A Clerk Or Servant

Question 1

Is larceny by a clerk or servant before or after the till?

Answer 1

Possession of property after the till.

Question 2

Does embezzlement relate to property before or after the till?

Answer 2

Possession before the till.

An example would be products being delivered and you take some before it hits the storeroom.

You take the cash before putting it in the till.

Once it hits the storehouse or the till and is then stolen it becomes larceny as a clerk or servant.

Question 3

What does general deficiency S161 Crimes act 1900 relate to?

Answer 3

Proof of a general deficiency is a facilitation section which allows
the prosecution to aver a general deficiency in funds where it cannot be proven specifically:

• How much money was taken; AND
• At which particular time money was taken.

A series of embezzlements or clerk or servant offences but exact date each amount was stolen is unknown.

Allows prosecution to charge between dates.

When we can’t prove time or how much money.

Recognises employees have a unique ability to cover their tracks or cook the books.

Question 4

S156 Crimes Act 1900 concerns larceny as a clerk or servant. What does it involve?

Answer 4

• Whosoever being a clerk or servant;
• Steals any property belonging to,
• OR in 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 5

• What are the elements of Larceny as a Clerk or servant s156 Crimes Act 1900?

Remember this is where you take property from the employer that is in the till.

If you accept property into the storehouse and it is in the storehouse it is now larceny as a clerk or servant.

Answer 5

1. The accused was clerk or servant (employee);
2. Property was owned by accused’s master (employer)

OR was in the power or possession of her or his master (employer) AND

3. The accused stole such property

(1. The accused at a time date place
2. Taking (trespass of property)
3. Carried away (asportation)
4. Property subject to larceny at common law (larceny physical, tangible and not a structure)
5. Belongs to another
6. Without consent
7. Taking without legal claim of right
8. Taking with intent to permanently deprive
9. Taking was dishonest)

Question 6

• Where is element 1 clerk or servant defined?

Answer 6

S155 Crimes Act 1900.

• person
• employed for any purpose, capacity as a clerk or servant OR
• employed as collector of monies although temporarily OR
• employed also by other persons OR
• employed to pay and receive monies OR
• although person no authority from employer to receive money or property on his account

Question 7

• Is being a clerk or servant a question of law or fact?

Answer 7

Fact. There are so many factors that it should be left to the tribunal of fact.

An independent contractor is the antithesis of the employee. You may have a temporary employee (someone mows you lawn for example). If they steal while mowing the lawn they may be an employee (clerk or servant) and guilty of the more serious offence.

If they are receiving a salary it is a strong indication they are an employee.

Whereas a commission or share of profits leans towards not being an employee.

A clerk or traveller bound to follow directions is a clerk or servant but one who goes when and where they chose may not be (depending on if they are paid a salary).

Question 8

• What are some examples of evidence that could be adduced to prove element one clerk or servant?

Answer 8

• Employment relationship reduced to writing, the document should be tendered;
• Evidence of how the person is paid should be adduced (salary, wage, commission, basis etc);
• evidence of duties of the person, where carried out, hours of work, etc.
• Evidence from manager, the amount of control they exercise over them, what happens if they don’t comply with directions;
• Uniform, business card, represent yourself as an employee of a business.

Question 9

• What is the gravaman (essence) of the relationship?

Answer 9

Control.

You will only be a servant if you have a lawful obligation to follow all directions.

Even at KFC you are required to follow training directions.

The higher the level of control the higher the chance the person will be found to be an employee.

Question 10

• What is the significance of R v NEGUS in relation to element one clerk/servant?

Answer 10

In this case he could get orders whenever he liked and however many he liked.

He could not get employment from anyone else but was nonetheless found NOT to be an employee.

One ground is to ascertain whether the person was bound to obey the orders of his employer so as to be under the control of his employer.

Question 11

• ELEMENT TWO
  Property owned, power, possession of the master.

Where is property defined?

Answer 11

Section 4 of the Crimes Act 1900:

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 12

• What is the key difference between larceny as a clerk or servant and embezzlement?

Answer 12

Has it passed into the power, possession, ownership of the employer.

Yes: larceny as a clerk or servant
No: embezzlement.

Question 13

Element three. Do you have to prove the elements of larceny?

Answer 13

Yes.

Question 14

Element three

What are the elements of larceny?

Answer 14

The accused 
Took and carried away 
Property capable of being stolen at common law 
Without consent 
Without legal claim of right 
With intent to permanently deprive 
Did so fraudulently

Question 15

What section is embezzlement found in?

Answer 15

S157 Crimes Act 1900.

• Whoever, being a clerk or servant;
• fraudulently embezzles, either the whole or any part of any property;
• delivered to, or received, or taken onto possession by him;
• for OR in the name, OR on account of;
• his master, or employer, shall be deemed to have stolen the same although such property was not received into the possession of such master, or employer otherwise than ny the actual possession of such clerk, or servant, shall be liable to imprisonment for ten years

Question 16

Is larceny an element of embezzlement?

Answer 16

No. So that means it can be non tangible property such as money in bank accounts.

Question 17

• What are the elements of embezzlement S157 Crimes Act 1900?

Answer 17

1. The accused was a clerk or servant (employee)
2. Property received, delivered to or taken into possession of accused for, in name of or on account of the master (employer)
3. Fraudulently embezzled such property

Question 18

• Element 1

Clerk/servant

Answer 18

As per larceny as a clerk or servant S155 basically the definition goes beyond an employee.

Question 19

Element 2

If the property is received by accused from an outside source?

Answer 19

Received by accused from an outside source - NOT in power possession of master. It has to be converted to the employer.

Question 20

What if it is received by other employee?

Answer 20

Not in power, possession of master.

Question 21

Where a property is received onto any thing (cash register, truck desk owned by employer) belonging to master?

Answer 21

It has been received into the master’s possession so no embezzlement.

Question 22

• What is the effect of S163 Crimes Act 1900 alternative verdict on embezzlement?

Answer 22

When on trial for embezzlement, if the evidence supports the charge of larceny clerk/servant, the defendant may be found guilty of larceny.

Question 23

• What is the effect of S120 Crimes Act 1900 alternative verdict on larceny?

Answer 23

When on trial for larceny, if the evidence supports a charge of embezzlement, the defendant may be found guilty of embezzlement.

Question 24

Element three

What about the third element of fraudulently embezzled?

Answer 24

Fraudulent is the same as dishonest. That is dishonest to the standard of ordinary and reasonable people.

Not simply that it is missing, the taking needs to happen fraudulently. That is contrary to the standards of reasonable and honest people.

You could take something carelessly but that would not qualify (forgetting that something was in your pocket).

Fraudulent is interchangeable with the definition of fraud which is the dishonest deception by one person of another to obtain their property, obtain a financial gain or cause a financial disadvantage.

When a person has acted fraudulently they have been deceptive and dishonest.

An honest claim of right will nullify this.

is interchangeable with the definition of

Question 25

What is the definition of dishonestly as per S4B Crimes Act 1900?

Answer 25

(1) In this act:

Dishonest mean dishonest according to the standards of ordinary people and the standards of ordinary people and known by the defendant to be dishonest according to the standards of ordinary people.

(2) In a prosecution for an offence, dishonestly is a matter for the trier of fact.

Question 26

Is carelessness/negligence sufficient to prove dishonesty?

Answer 26

No it is not sufficient as no criminal dishonesty.

Question 27

Is embezzlement diversion of property before or after the till?

Answer 27

Before.

Question 28

What is the proof of general deficiency as per S161 Crimes Act 1900?

It is a facilitation section. It is not used to avoid laying individual charges this is for where we can’t get the individual amounts.

It will show a total amount gone, say $5000, but not each incident over the past six months as

Answer 28

Prosecution, for larceny, or embezzlement as a clerk or servant, or as a person employed by the public service where the charge is in respect of money

• It shall not be necessary to prove the larceny, or embezzlement by the accused of any specific sum of money (not items or stock)
• If there is proof of a general deficiency on the examination of the books of account, or entries kept, or made by him, or otherwise, and the jury are satisfied that he stole or fraudulently embezzled the deficient money or any part there of.

Question 29

What evidence will need to be adduced?

Answer 29

Show the shortage is caused by fraudulent conduct.

Question 30

Dos the proof of general deficiency apply to all offences?

Answer 30

No it applies to larceny as a clerk or servant and embezzlement.

Question 31

When do you use proof of genial deficiency S161?

Answer 31

Used wen you cannot prove that a specific amount was taken on a specific day.

Question 32

In relation to proof of general deficiency do you still need to prove all the elements of the offence?

Answer 32

Yes.

Question 33

What do you need to prove?

Answer 33

Only that to prove the accused stole or fraudulently embezzled the amount charged or any part thereof.

Question 34

What does the matter of R v RICH state about general deficiency cases?

Answer 34

The only way a crime or crimes can be proved is by ruling off the books to establish a general balance AND THEN

Showing in some appropriate way that the only explanation for the demonstrated shortfall is theft or fraud and that the defendant must have been the person responsible.

Question 35

How does R v Goodall 1975 relate to general deficiency cases?

Answer 35

• Impossible to disentangle the defendants dealings;
• He has created the impenetrable entanglement;
• It does not become the maker of the omelette to demand the separation of the eggs.