Larceny As Clerk Or Servant/ Embezzlement

Question 1

Is larceny as clerk or servant a common law or statutory offence. Cite authority

Answer 1

Statutory. S156 crimes act

Question 2

What is section 156 crimes act?

Answer 2

Offence of larceny of clerk/ servant.

Whoever so 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 of 10 years

Question 3

What are the elements of the offence for larceny as clerk/servant?

Answer 3

1.accused was clerk or servant
2. Property was owned by accused master or was in the power or possession of his or her master (employer) and
3 the accused stole such property

Question 4

Who is a clerk or servant?

Answer 4

S155 evidence act: definition : every person employed for any purpose, as, or in the capacity of, a clerk or servant or as a collector of money’s, although temporarily only, or employer also by other person’s, or employed to pay as well as receive money’s or although the persin had No authority from his or her employer to receive money, or other propertyon his or her account shall be deemed as clerk or servant.

Question 5

Is a person an employee a question of fact or law?

Answer 5

Question of fact

Question 6

What is the gravaman of the employment relation ship?

Answer 6

Control.

R v negus: 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 7

What evidence may be adduced to demonstrate the employment relationship?

Answer 7

Payslips, contracts, evidence of duties performed, uniforms

Question 8

How do we establish property stolen?

Answer 8

Illich v the queen: elements of larceny 
1. Property (s 4 evidence act) 
2. Property belongs to another person 
3. Taking of the property 
4. Carrying away of the property
5  taking with intent to permanently deprive the owner of the property 
6. Taking without consent 
7. Taking without claim of right 
8. Taking was dishonest.

Question 9

Is embezzlement a common law or statutory offence? Cite authority

Answer 9

Statutory offence. S157 evidence act

Question 10

What is section 157 crimes act?

Answer 10

Offence of embezzlement.

Whosoever, being a clerk or servant, fraudulently embezzled, either the whole orant part of any property delivered to, or received or taken into possession by him or her, for, or in the name, or on the account of, his or her 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 by the actual possession of such clerk, or servant and shall be liable to imprisonment for 10 years.

Question 11

What are the elements for an offence for embezzlement by clerk/servant?

Answer 11

1. Accused was clerk or servant (s155 evidence)
2. Property received, delivered to or taken into possession of an accused for, in name of or on account of the master (employer)
3. Fraudulently embezzled such property.

Question 12

What is 5he mens rea for embezzlement?

Answer 12

Fraudulently . They have therefore been deceptive and dishonest.

S4B Crimes Act. Dishonestly as being dishonest according to the standards of ordinary people.

Question 13

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

Answer 13

Whether the property has ever been in control of the master (employer). If it’s before the emploter has taken control of the property the offence is embezzlement. If the property occurs once it’s in the conteol of themaster it’s larceny.

Question 14

What if you charge for the wrong offence or you haven’t charged in the amternative on the day of hearing?

Answer 14

Alternative verdicts are available. No need to have charged for the accused to be found guilty of the charge.

S163 crimes act: when on trial for embezzlement if the evidence supports the charge of larceny for clerk or servant the defendanf may be found guilty of larceny.

S120 crimes act: when on trial for larceny if the evidence supports a charge of embezzlement the defendant may be found guilty of embezzlement

Question 15

What is general deficiency?

Answer 15

R v rich : 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 demonstrated short fall is theft or fraud and ths5 the defendant must have been the person responsible.

Question 16

What are the requirements for genetal deficiency?

Answer 16

S161 crimes act:
General deficiency only applies to larceny as clerk or servant and embezzlement
Used when you cannot prove that a specific amount was taken on a specific day
Must still prove all the elements of the offence
Only need to prove the accused stolen or fraudulently embezzled the amount charged or any part thereof.