LAWS1016 Larcency

Question 1

Elements of Larcency

Answer 1

AR

1. Property capable of being stolen
2. Belonging to another (i.e. In possession of a person other than D)
3. is taken and carried away by D (i.e. Asportation)
4. Without the possessor’s consent

MR

1. With an intention to permanently deprive
2. AND Fraudulently / dishonestly
3. AND without any claim of right to the property
4. Temporal Coincidence

Question 2

Definition of Larcency

Answer 2

A person who without consent, takes and carries away anything capable of being stolen belonging to another, fraudulently /dishonestly, with intention to permanently deprive the possessor, and without a claim of right thereof is guilty of an offence of larceny (illich) and punishable under s117 Crimes Act.

Question 3

Constructive possession

Answer 3

[Williams v Phillip] Property in actual conscious possession by employee within the terms of their employment is considered to be in constructive possession of the employer.

(Hibbert v McKiernan) If property is found on a person’s enclosed land, that property is constructively in the possession of that person even if they are unaware of it.

Question 4

How can “asportation” be established?

Answer 4

Asportation can be established if there is any small movement of the property from its original placement if there is an intention to steal. (Wallis v Lane) deliveryman moved bicycle toe clips from box and left them hidden on the tray of the truck (which is in constructive possession of delivery company), caught while still completing the delivery.

(P) (Potisk) mistakenly handed too much money but did not realize till later. Keeping =/= “taking”. Later change in intention can not innocent possession into a larceny???????

Question 5

3 Fundamental Mistakes that will negate consent given and prevent possession from passing.

Answer 5

(1) identity of person whom property was given
(2) identity of the property being handed over (gold coin rather than silver coin)
(3) excess quantity of goods is handed over

However, mistake of quantity is not a fundamental mistake ($500 rather than $100).

Question 6

Intention to permanently deprive

Answer 6

S118 where D has appropriated the property for his own use / benefit, that of another, but intended to eventually restore the property / return an equivalent amount of cash, D will not be entitled, by reason only thereof, to an acquittal.

(Holloway) moved skins tanned by another to his area so he could obtain higher payment, fraudulent misuse but no intention to deprive permanently (-).

(Phillips and Strong) took and rode horses 30 miles to another town, no intention to change property and make it their own, but merely to save themselves labour in travel (-). ??>

(Foster) took roommate’s gun to show father in Canberra, intended to return when he came back that same evening, assumed possession but no intention to appropriate / excercize ownership of the goods??

If intention to return property is conditional, then it amounts to an intention permanently to deprive. [Lower v Hooker] return of stolen goods condition upon receiving refund. [Sharp v McCormick] would only return if car part stolen was incompatible with his car.

… … …

Where the true value of the property is diminished by D taking it, even if D possessed an intention to return the property, it amounts to an intention to permanently deprive. E.g. [Beecham] returning ticket after event date.

(Weatherstone) melting the metal would mean that the property would be destroyed and cease to exist as rods, substantially altering the nature of the property amounts to an intention to permanently deprive.

Question 7

Test of “dishonesty” debate

Answer 7

has not yet been conclusively determined in NSW. (Feely) “dishonesty” = whether act was dishonest according to the standards of ordinary decent people. (Gosh) “dishonesty” test = whether according to the standards of reasonable and honest people, what was done was dishonest, AND, whether D himself realized that what he was doing was by those standards dishonest. On the one hand, a subsequent HCA case (Peters) rejected the (Gosh), and applied (Feely). But on the other hand, there seems to be legislative endorsement of the (Gosh) test in s4B (although s4B definition applies to fraud and not to the common law offence of larceny). (Gosh) and (Peters) have yet to be applied to a larceny case in NSW.

(Weatherstone) stole metal rods from council to fix the council’s fences, though unauthorized, was not dishonest (-). Personal advancement is an element of larceny, but may establish dishonesty.

Question 8

Claim of Right

Answer 8

Claim of right negates the MR element of dishonesty; claim must be genuinely honestly held (does not have to be reasonable); belief must be of legal entitlement as opposed to mere moral entitlement; may be an answer to a crime in which assault is used to get property; not confined to the specific property (e.g. doesn’t have to be the exact same banknotes); property / money taken cannot be more than the value claimed; P bears the burden to negative a claim of right. (Fuge)

Question 9

Temporal Coincidence

Answer 9

• (Potisk) unless (Riley) scenario!
• (Potisk) dishonestly kept extra money handed to him (-), accused did not have necessary MR at time handed over money.
• (Riley) dishonestly kept lamb after he accidentally took it without consent (+), did not intentionally commit the act of taking, but still formed an intent to permanently deprive after he found out, continuous act.