Larceny As A Clerk/Servant

Question 1

What provision relates to the offence of ‘Larceny as a Clerk/Servant’?

Answer 1

Section 156 - The elements of the offence include:

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

Question 2

Define: Clerk/Servant

Answer 2

Section 155 - Employed… as a collector of money… or employed by other persons… to pay or receive money or include having no authority to receive money or other property…

Question 4

In relation to the offence of ‘Larceny as a clerk/servant’, what must be considered in relation to element 2: Property owned or in the power/possession of the master (employer)?

Answer 4

*Property defined at Section 4 as “every description of real and personal property, money…”

Question 5

In relation to the offence of ‘Larceny as a clerk/servant’, what must be considered in relation to element 3: The accused stole such property?

Answer 5

Illich v the Queen - Must establish all elements of larceny including: (1) the accused stole the property of another (2) by taking it and carrying it away (3) without the consent of the owner (4) with the intention to permanently deprive (5) without claim of right made in good faith (6) dishonestly.

Question 6

What provision relates to the offence of ‘Embezzlement’?

Answer 6

Section 157 - The elements of the offence include:

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

Question 7

In relation to the offence of ‘Embezzlement’, what must be considered in relation to element 1: The accused was clerk or servant (employee)?

Answer 7

*Definition of Clerk/Servant - Section 155

Question 8

In relation to the offence of ‘Embezzlement’, what must be considered in relation to element 2: Property received/delivered/taken into possession of accused?

Answer 8

• Property defined at Section 4
• Received by the accused from an outside source
  (e. g. Customer or other employee)

Question 9

In relation to the offence of ‘Embezzlement’, what must be considered in relation to element 3: The accused fraudulently embezzled such property?

Answer 9

“Fraudulent” defined as dishonest deception to obtain another persons property to gain an advantage or cause a disadvantage
“Dishonest”, objectively, according to the standards of ordinary people and, subjectively, known by the defendant to be dishonest - Peters v the Queen - Section 4B

Question 10

How can ‘Larceny as a Clerk/Servant’ be distinguished from ‘Embezzlement’?

Answer 10

The key difference is whether the property has passed into the power/possession/ownership of the employer. If it has, it is larceny as a clerk. If it hasn’t, it is embezzlement. Another example: If property stolen prior to being placed into a truck, it is embezzlement. If the property is stolen off the truck, it is larceny as a clerk.

Question 11

Are alternate verdicts available?

Answer 11

Yes - Section 163 - Alternative verdict available on evidence

Question 12

What is ‘proof of general deficiency’?

Answer 12

Section 161 - In relation to both offences, 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 it cannot be established what specific sum of money was stolen on a specific day

Question 13

In relation to the offence of ‘Larceny as a clerk/servant’, what must be considered in relation to element 1: The accused was clerk or servant (employee)?

Answer 13

• Definition of Clerk/Servant - Section 155
• It is a question of fact (not law)
• Essence of the relationship is ‘control’ - R v Negus
• Examples of evidence to be adduced: contract, payslip or roster