Class 8 Preparation PDF

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Class 8 Preparation...

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8. Dishonest acquisition Learning Aims By the end of this week student should: ● Understand the prevalence of property offences in NSW, and patterns of victimisation and offending ● Have a good set of notes on the elements of larceny (and related offences) and fraud. ● Be able to apply the elements of the larceny and fraud to novel fact scenarios ● Understand what it is like to write a seen problem questions in exam conditions.

Pre-class preparation Reading: The required reading includes sections from the text Brown, David et al, Criminal Laws (2015, 6th Ed, Federation Press) Any references to numbers below – eg 2.6.1 refer to sections in the text 11.1-11.6 (37p) 11.1 Introduction 11.2 General concepts and themes 11.3 Larceny 11.4 Statutory expansion of larceny 11.5 Aggravated offences 11.6 Alternative verdicts 11.8 – 11.8.9 (14.5p) Fraud

Legislation Crimes Act 1900 (NSW) ● ●

Larceny and embezzlement ss 117, 118, 125, 156, 157  Fraud s4 definition of property, s 4B, s192B – s192E 

Powerpoint to assist notetaking (available sometime this week)

Listening and/or watching Listen and/or watch the screencasts available on vUWS (available sometime this week).

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Elements of Larceny s117 common law definition - Illich (1987) HC Wilson and Dawson JJ – p965 ‘At common law, larceny is committed by a person who, without the consent of the owner, fraudulently and without a claim of right made in good faith, takes and carries away anything capable of being stolen with intent, at the time of such taking, permanently to deprive the owner thereof…. without consent of the owner… include[s] the person in possession of the thing..’ AR 1. property capable of being stolen – tangible – Anic; Croton; White 2. property in possession of another – Anic; Williams v Phillips 3. property taken and carried away – Wallis v Lane; Potisk 4. taken without consent of possessor – Middleton; Kenison v Daire; Kolosque v Miyazaki MR 1. intention to permanently deprive – s118, Holloway; Phillips v Strong; Foster; Lowe v Hooker; Weatherstone; Sharp v McCormack; Beecham; Lloyd 2. fraudulently – Glenister; Feely; Weatherstone; (Ghosh); Peters; Macleod; Baatman 3. without any claim of right to the property – Walden v Hensler; Fuge; Williams; Goodsell v Yunnypingu and DPP Ref No 1 of 1999 NOTE: ALL elements of the actus reus and all elements of the mens rea must be proved.

Elements of Fraud s192E 1 by deception AR s192B(1), M; Barnard; Nelson; DPP v Ray; Silverman MR s192B(2) Stokes v Difford 2A obtains property belonging to another AR a s4 – definition of property b obtains property – s192C(1) c property belongs – s192C(3) MR s192C (2), (4), (5) 2B obtains financial advantage AR s192(1)(a)-(c) Murphy; Coelho v Durbin MR He Kaw Teh; Murphy 2C causes financial disadvantage AR s192D(2)(a)-(b); MR MR He Kaw Teh; Murphy 3 AR Causation deception causes 2A or 2B or 2C – Ho v Szeto, Clemesha, Kassis v Katsantonis 4 MR dishonestly – s4B(1), s192E(2),Feely, Ghosh, Peters, Love. NOTE: The offence of fraud is s192E. S192B, s192C and s192D are NOT offences. They are definition sections which help to define particular elements of the offence of fraud

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Writing Write answers to the following questions: 1. To what extent should criminal law be used to protect property and financial interests? What other avenues are available? Criminal law should be used to protect property and financial interest to the extent of acknowledging the property interests of the victims and placing a greater emphasis on the punishment of the wrongdoer despite the degree of dishonesty they have engaged with to commit the crime. The use, property and wealth of the owner are not relevant in my belief - the perpetrator must be punished according to the value of which they have taken and the level of dishonesty they conveyed in the crime they committed to prevent or minimise this crime from recurring. The other avenues available include but are not limited to: ensuring as the owner of a car that the car is locked and equipped with an alarm in the case that someone attempts to steal it, ensures the belongings in a house are adequately kept safe if no one is inside (locking doors and windows), keeping important or valuable items in places that are not conspicuous (jewellery in closets, boxes etc), ensuring CCTV systems are installed where possible, ensuring the house is alarmed, ensuring the keys are kept in a safe place where no one can access it etc. 2. What are ‘things capable of being stolen? Larceny is restricted to chattels; that is, tangible, moveable property (pg 967). Domesticated farm animals. What are ‘things’ not capable of being stolen? Land. Fixtures (houses, letterboxes, minerals and soils). Wild animals that have not been assumed possession of. Which of these are defined as ‘property’ for the purposes of fraud? (see s4 Crimes Act 1900 (NSW) – and note that the definition of property does NOT apply to the offence of larceny). 3. Is money deposited in a bank account a ‘thing capable of being stolen? If not what is it? Croton. No. The money in that bank account does not exist as a physical possession but as merely a chose in action - that is, a debt owed by the bank to the rightful owner of the account. Even if cash is obtained by a withdrawal from a teller, that cash was the property of the bank and is handed over with consent. Croton discusses this action as instead being a chose in action in contradistinction to a chose in possession. This offence constitutes a fraud offence rather than one of larceny (pg 972). 4. What does it mean to have ‘possession’ of something? How does this differ from owning it? Having control over it? Possession is having all property rights to tangible property. 5. Is it possible to have possession of something that there is no right in law to own? See Anic. Yes. Such is seen in the case of Anic whereby the drugs were seen as having some value that is also tangible. Also, it was in possession of Hollis who thus has some proprietary rights in the drugs. 6. What is constructive possession? Constructive possession is the possession that is held by the employee or servant within the terms of their employment or servitude which is considered to be constructively in the possession of the employer or master. Therefore, employees can steal from their employer. 7. Do abandoned goods have an owner? No property is ever without an “owner”. That “owner” will be the person who was the last person in possession of it. Charity shop - clothes left outside belong to the charity. 8. What needs to occur to satisfy ‘taken and carried away’ (asportation)? Is an intention to retain goods obtained innocently sufficient? Is there is a removal of the property from the spot where it was originally placed with intent to steal (pg 974). 9. When a teller hands over money at a bank in error, is the element ‘taking without the consent of the possessor’ satisfied? Why? No. If the person first in possession had originally handed the thing over - to a courier or borrower- the person receiving it was not guilty of a larceny however dishonest he or she was at the time. It had not been taken into invito domino, that is, without the possessor’s consent and was therefore protected by the principle of “possessorial immunity” (pg 974). 10. What does a bank consent to when a person withdraws money from an automatic teller? Kennison v Daire. A bank consents to the withdrawal of up to $200 by a cardholder who presented his card and supplied his personal identification number, only if the 3

cardholder had an account which was current (Pg 975). 11. What is the nature of a consumer’s implied licence in a shop? How will that licence be broken? Kolosque v Miyazaki. The consent is that the goods may be taken from the display for fitting where appropriate or for inspection or to a cash register either directly or indirectly for the purposes of purchase. The license granted by an owner to remove goods is broken if there is any action inconsistent with the license allowing clothing to be removed for a fitting or to take goods to a cash register for purchase or lay by (page 976). 12. What are the terms of the implied licence for a finder of lost goods? The prior possessor is deemed to consent t the finder taking possession in order for the property to be returned (page 976). 13. What are some of the ways that can demonstrate that a person has an intention to appropriate goods to himself rather than merely assume possession of them? Foster. An intention to assume ownership of the gun, to deprive Baker permanently of it and deprive him of the property in it. 14. What are some examples of appropriating property even though there was an intention to eventually return the property? Lows v Hooker, Sharp v McCormick, Beecham, Weatherstone. Lowe - in the case of a person who, having taken another’s property, advises that other that he can have it back if he pays for it, the taking can be described as coming within the words “with the intention of permanently depriving the other of it” without the assistance of any statutory guide to interpretation (page 978). Sharp intention to permanently deprive when the attempt to describe the intention to return it if it didn't not fit as “having regard to the rights of the employer” was described by Brooking J as “little short of an abuse of language”. Beecham - the taking of a ticket for travel or to a concert although may be returned, becomes useless the next day. Weatherstone - there was an intention to permanently deprive the Kempsey Shire Council of its property in these welding rods. The circumstance being that the rods of used by the appellant for his intended purposes would have been destroyed to my my mind inevitably carries with it he fact that the portent of the owner of the rods would be terminated by the destruction in that they would cease to exist as rods. The welding rods were no longer available to the council. 15. What is the test for dishonesty in Weatherstone? If the intention of the appellant had been only to make some slight alteration to the property taken and then return it such intention is not to permanently deprive the owner of his property. How does this differ from Feely? When deciding whether an appropriation was dishonest can be reasonably expected to and should apply the current standards of a ordinary decent people … in their own lives they have to decide what is and isn't dishonest. Proving that the act has ben done dishonestly. Ghosh? Held that dishonesty was to be determined by the finder of fact asking: ‘whether according to the ordinary standards of reasonable and honest people what was done was dishonest and additionally, whether the defendant himself must have realised that what he was doing was by those standards dishonest”. Toohey and Gaudron in Peters? In a case in which it is necessary for a jury to decide whether an act is dishonest, the proper course is for the trial judge to identify the knowledge, belief or intent which is said to render that act dishonest and to instruct the jury to decide whether the accused had that knowledge, belief or intent and if so to determine whether on that account the act was dishonest. If the question is whether the act was dishonest according to ordinary notions it is sufficient that the jury be instructed that that is to be decided by the standards of ordinary, decent people. 16. What is the test for fraudulently or dishonestly in the crime of larceny in NSW? How does this differ from the definition of dishonesty for the crime of fraud under s192E – see s4B. NOTE: s4B is ONLY relevant to fraud. It is NOT the test for dishonesty in larceny. it must be fraudulent or dishonest and involve some moral obloquy. 17. What are the elements of a claim of right? Including the requirement that the thief taken the property “fraudulently and without a colour of right”. A claim of right is a genuine belief held by a person that they have a bona fide claim of right to certain money or property is a defence to any crime of which larceny is an element. Which other element of the mens rea does it serve to undermine? When a law proscribes conduct which an ordinary person without special knowledge of the law might engage in the honest belief that he is lawfully entitled to do so. Legal mistake about his private rights. Who bears the burden of proof? 4

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(evidentiary and persuasive)? Prosecution. Fuge, Walden v Hensler. Fuge - Pohl and Baker-Vollmer held a bona fide belief that HJ owned her a sum of money from the restaurant in circumstances which otherwise would have involved robbery would not have constituted an offence on their part. What is the rationale for the claim of right ‘defence’? Walden v Hensler. the claim must be genuinely held it not being to the point whether it was well founded in fact or law or not. To render a person liable to punishment for an offence relating to property when, under a mistake of law, he acts honestly claiming a right to do what he does and when he has no intention to defraud would make the criminal law unjustly oppressive: it would expose him to the peril of conviction for an offence because of a legal mistake about his private rights. Is claim of right limited to larceny? No it is not. If claim of right is raised in a case of robbery, what must the belief be about? The belief must be that Fuge was involved in the enterprise in the belief that he was assisting Baker-Vollmer to assert her belief in a claim to unpaid wages. Could the person still be liable for another offence? Fuge , Langham. the existence of such a claim when genuinely held, may constitute an answer to a crime in which the means used to take the property involved an assault, or the use of arms; the relevant issue being whether the accused had a genuine belief in the legal right to the property rather than a belief in a legal right to employ the means in question to recover it (page 984). Can a person who has been given possession of an object who dishonestly decides to keep it be guilty of larceny under s117? How does s125 help? Section 125 says ‘Whosoever, being a bailee of any property, fraudulently takes, or converts, the same, or any part thereof, or any property into or for which it has been converted, or exchanged, to his or her own use, or the use of any person other than the owner thereof, although he or she does not break bulk, or otherwise determine the bailment, shall be deemed to be guilty of larceny and liable to be indicted for that offence. The accused shall be taken to be a bailee within the meaning of this section, although he or she may not have contacted to restore, or deliver, the specific property received by him or her, or may only have contacted to restore, or deliver, the property specifically. - the offence of larceny was designed to embrace those whe entered into a bailment and at a later time dealt with the bailed object dishonestly but without breaking bulk. A carrier is one example of a bailee. The NSW version of the offence provides it can be committed not only in respect of the original thing bailed but also in respect of anything substituted for it. Section 125 helps by discussing larceny by bailee. In general, does an employee have possession of their employee’s goods, or only custody? Custody. An employee legally has custody over property that is handed over to them by their master or employer. Possession is held to constructively remain with the master or employer. See s156. Increases the maximum penalty for larceny to 10 years imprisonment if the thief is an employee. When an employee takes delivery of property for their employee, who has possession of the property? Servants (employees) who received property for their masters from a third party were held to have received possession (page 987). How is property reduced to the constructive possession of the employer? Can deception occur by an omission? By some act of the employee - such as placing the money in a till, or placing the property into the employer’s vehicle (page 988). What is the mens rea element for deception? by means of a false pretence with intent to defraud How is property defined in s4? Obtain property in s192C and property belongs in s192C? What is the mens rea for obtaining property in s192C (2), (4), (5)? 2 - intent to permanently deprive, 4 - intent to permanently deprive the other of it if the person’s intention is to treat the thing as his or her own to dispose of regardless of the other person’s rights, 5 the parting with the property treats the property as his or her own to dispose regardless of the other’s rights. How does this differ from intention to permanently deprive in larceny? How have the courts defined financial advantage? ‘finance’ - interalia, payment of a debt, compensation, ransom, stock of money, borrowing of money at interest, the pecuniary resources of a state, engage in financial operation, to provide oneself with capital. ‘Advantage’ - interalia, having the better of another in any respect; the result of a superior 5

position; to benefit or profit. (page 1004) - Murphy [1987] Tas R 178 26. Note that sometimes all three limbs of s192E(1) could be used in the same fact situation. 27. If the victim is indifferent to the representation by the defendant, will the offence of fraud be made out? No. What if the victim realizes that the defendant is attempting to deceive? Kassis. It will be considered attempted fraud. 28. Is a claim of right relevant to fraud? Love. While claim of right may remove liability for larceny or crimes of which larceny is an element, it has no application to other offences such as assault. The claim of right is not relevant to fraud as the court rejected (in Love) the suggestion that in these circumstances it was sufficient to leave the issue of dishonesty to the jury in terms of the standards or ordinary people. As set out in Salvo: ‘where what is involved is something in the nature of a claim of right, a test which is simply expressed in terms of the standards of ordinary people will leave a jury with inadequate instruction… [in Salvo]... when a claim of legal right of the kind now in question is raise, the issue is whether there was a belief in a legal right to obtain the property, not whether there was a belief in a legal right to practise the deception. 29. Do you think dishonesty should be an element of larceny and fraud? What do you think the test should be? The test in Feely - (obejective) whether the defendant ha acted dishonestly… ‘dishonesty’ can only relate to the state of mind of the person who does the act which amounts to appropriation (page 1007) , Ghosh - (objective) test… apply current standards of ordinary decent people.. whether according to those standards what was done was dishonest. , Weatherstone - , Peters (objective) - whether the act in question was dishonest by those standards and, if so, whether the accused must have known that that was so. s4B, Bonollo - (subjective) the accused, obtaining the property by deception, would obtain it dishonestly if then of the belief that by obtaining it he will produce a consequence affceting the interests of the person deprived of it; and if that consequence is one which would be detrimental to those interests in a significant practical way. ? Should it be objective or subjective or a combination of both? 30. The following list, is a list of cases which is likely to be in the case list for the final exam. If you write notes on these now, you will have a good set of notes to use when you revise for the final exam.

Dishonest Acquisition Larceny Statement of Principle Illich (1987) 162 CLR 110 Something capable of being stolen Croton (1967) 117 CLR 326 (Criminal law — General — Larceny — Joint bank account

Application for leave to appeal from decision of Supreme Court of Australian Capital Territory. Appellant and mistress opened joint bank account in joint names with authority in each to operate account. Appellant withdrew contents of account and deposited amounts in own account in another bank without knowledge or authority of mistress.

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Appellant convicted o...