Criminal Law Exam Notes PDF

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Property Offences: Larceny STEALING (known as larceny at common law) - Stealing/larceny in NSW is dealt with under s117 of the Crimes Act 1900 (NSW): 117 Punishment for larceny Whosoever commits larceny, or any indictable offence by this Act made punishable like larceny, shall, except in the cases hereinafter otherwise provided for, be liable to imprisonment for five years.

- ELEMENTS of larceny are not defined in the section and are still to be found in the common law: “… is committed by a person who, without the consent of the owner, fraudulently and without a claim or 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. (Illich v R (1987) 162 CLR 110 at 123, per Wilson and Dawson JJ)

The elements of larceny are: - ACTUS REUS  the accused took: o o o o

Property capable of being stolen; Property belonging to another; Property taken and carried away; and The taking has been done without the consent of the owner.

- MENS REA  the accused, at the time of the taking, took the property: o With the intention to permanently deprive the owner; o Without a claim of right; and o Fraudulently.

ACTUS REUS of Larceny a) ‘Property capable of being stolen’ is limited to tangible personal property. Land or real property IS NOT capable of being stolen and so-called ‘land theft’ is dealt with by a set of separate specific provisions. Section 4 of the Crimes Act contains a definition of property which is relevant to those larceny offences that use that term.

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.

Section 94AA - Property which is “already out of possession of the owner by reason of its having been previously stolen” can be stolen, and the offender convicted of larceny OR other property offences.

94AA Property previously stolen Where on the trial of a person for any offence which includes the stealing of any property it appears that the property was, at the time when it was taken by the accused, already out of the possession of the owner by reason of its having been previously stolen, the accused may be convicted of the offence charged notwithstanding that it is not proved that the taking by him or her amounted to an interference with the right to possession of, or a trespass against, the owner.

- Physical movement is required (if not moved, then it’s not stolen) o R v White (1904) 21 WN (NSW) 104 - Must be of some value, even paper is sufficient (eg, cheques) o R v Daley (1879) 12 SCR (NSW) 151 - Land / Fixtures cannot be stolen (because it cannot be moved) o R v Wilson (1874) 12 SCR NSW) L 258 ; Billing v Pill [1954] 1 QB 70 **However – some fixtures have statutes that cover this (s139-154) – eg, stealing trees under s140

- Gas was seen as tangible and capable of being stolen o R v Lloyd [1985] 3 WLR 30

- Corpses o Kelly (1999) QB 621 o Dowed v Spence (1908) 6 CLR 406 – 2 headed foetus - Illegal Property (drugs) o Anic v R (1993) 68 A Crim R 313 o R v Waterhouse – stealing opium, drugs (although illegal) ARE property capable of being stolen.

At common law items stolen must have some value. Kelly v R (1999) QB 621 Facts – K was artist of corpses. He asked another to bring him body parts to take home from Surgeons College. After finished, he buried them (did not return them). The accused was charged with stealing a number of body parts from the Royal College of Surgeons. Defence – The defence pleaded that the common law definition of larceny required that the object that was stolen had to be of some tangible value otherwise the offence did not exist. Ratio – The judge distinguished the case and held that because the body parts had been treated with a preservative and had some skill applied to them and were used for instructional purposes they did in fact possess a tangible value. College had possession of the corpses (if corpses used for specific purpose, then it become property. Therefore, K convicted of theft.

Anic v R (1993) 68 A Crim R 313 Facts – A & another broke into home, dragged lady out of shower and asked for drugs (marijuana) but realised wrong house and left. Appeal argument – intention to rob but no property stolen. Courts - lady had possession of drugs even though she had no ownership - drugs although illegal were of some value, shown as tangible personal property - therefore drugs were capable of being stolen

Can’t steal your own property. Croton v R (1967) 117 CLR 326 Charge – Man & woman in defacto relationship held joint bank account. He withdrew from that account and put it in his own account. The Appellant was convicted of stealing money from a joint bank account he held with his defacto, as her salary was deposited into the account and they lived off his.

Defence – The appeal is based on the fact that the taking of the money was with the consent of the bank and that the appellant had a chose in action for the money, as he was one of the account holders. Ratio – Money is of paper value, where when asported can be larceny. - Money was in the bank’s possession, which they handed over with consent. The money was not taken out of possession of Mrs Webster as she did not have possession of it, nor did the bank as her agent. - When the bank gave the appellant the money it handed ownership solely to him (he had a legal right to withdraw money from the bank) not the joint holders, even if the appellant is accountable to Mrs Webster.

- Appeal allowed conviction quashed.

b) The property must have belonged to (or been in the possession of) another. - The property may still be in constructive possession even if it is actually in the physical custody of someone else.

- Hibbert v McKiernan [1948] 2 KB 142; Williams v Phillips (1957) 41 Cr App R 5. - Relates to ‘possession’ NOT ownership. - Goods are taken from someone’s possession (regardless whether they are the owner or not).

c) The property was taken and carried away. - Asportation (movement of stolen goods) / Appropriation (physical interference). Must prove thing stolen has to be ‘taken and carried away’ (physically moved essential).

- It would appear that ANY slight movement of goods with an intent to steal them is sufficient to constitute as asportation.

Wallis v Lane [1964] VR 293 - ASPORTATION Charge – D removed toe-clips from some boxes in the truck and hid them in another part of the truck. He was charged with stealing when he moved them from the cargo compartment of his employer’s truck and hid them in the cabin. Defence – The defence pleaded that the accused had not stolen the straps as he had not removed them from the owner’s possession. Ratio – Element of larceny be that the goods be carried away even if only moved the slightest distance with the intent to permanently deprive the true owner. Even though it’s still in the truck, goods were moved, sufficient asportation to constitute larceny. (Herring J)

Morris [1983] 3 All ER 288 - APPROPRIATION Facts – M took goods from shelves of supermarket and put switched price labels and paid for goods cheaper than original value. Courts – his acts “involves an element of adverse interference with or usurpation of the right of the owner (supermarket)”. - unlawful right as customer, therefore charged with Appropriation

Baruday [1984] VR 685 Facts – creating false accounts as insurance broker (paid cheques for extra premiums into own account) Courts – act was deemed APPROPRIATION.

Gomez [1993] 1 All ER 1 Facts – G works at electrical store, supplied goods to another using stolen cheques (work together on the scheme) Courts – owner was induced by fraud (thus consent is irrelevant) - APPROPRIATION can occur even though owner consented

d) The taking has been done without the consent of the owner. (Without the consent of the person in possession) - Even if the accused initially had possession with the consent of the owner, if he or she later takes at least one piece of property for his or her own use or that of another that will be sufficient.

- Thus what starts as lawful temporary custody may become larceny IF the actions by the accused performed in breach of that permission amount to asportation or a taking that has been done without the consent of the owner.

- See Kolosque v Miyazaki: where a license to handle clothes in a store was said to be limited to genuine customers.

- To prove larceny, however, the prosecution must be able to show ‘taking’. If they can only show ‘a mere conversion’, that is, the unauthorised exercise of the rights of ownership, then this will not be enough to satisfy this element.

Retail displays are not consent to taking. Kolosque v Miyazaki (Unreported 17 February 1995) NSWSC Common Law Division

Charge – The accused was arrested after her and a friend at a department store where seen concealing items of clothing in her bag and moving toward the exit. The friend left the store and noticed security staff watching the pair, and went back into the store to inform the accused. They headed back to the clothing department but were apprehended. Defence – The accused submitted that she had not left the store and was intending on throwing the items to security staff upon leaving. At the police station the accused submitted she intended to try the cloths on and place them on lay-by. Security staff gave evidence that the dress rooms are in the clothing department not in the department near the exit, which is where the accused was heading. The accused submits that when she was apprehended she still had the items with consent of the store. Ratio – Consent or a licence is conferred by the store to remove items from display take them to another area of the store with an intent to honestly deal with the goods (inspect them, fit them or purchase/lay-by them). Any removal of goods from display with the intent to permanently deprive the store of the goods exceed the license and is larceny. Matter sent back to the Magistrate to be dealt with according to the law.

Machines cannot confer consent. Kennison v Daire (1986) 160 CLR 129 Charge – The appellant was convicted of larceny after he closed his account with a bank and withdrew the balance. Using his card for the closed account at a date after the closure he withdrew $200 from one of the banks ATMs while it was in an offline state. The ATM is programmed to allow a maximum withdraw of $200 to anyone presenting a card and valid PIN. Defence – The appellant submitted that the taking of the money was with the bank’s consent as the machine was carrying out its programming which was ultimately the intent of the bank. Ratio – Even though a teller can allow someone to overdraw their account, the machine could not give the Bank’s consent and there is no principle of law that requires it to be treated as though it were a person with authority to decide and consent. The proper inference to be drawn from the facts is that the Bank consented to the withdrawal up to $200 by a card-holder who presented his card and supplied his personal identification number, only if card-holder had an account which was current. Appeal dismissed.

Trespass against possession even if the true owner can’t be identified. ***prosecution must state in the indictment or Cour Attendance Notice that the owner of the property cannot be identified and prove that the owner can’t be identified. Ellis v Lawson (1987) 33 A Crim R 69 Charge – The appellant was convicted of larceny after visiting a radio store and took a radio with the permission of an employee of the store who was a friend of the appellant’s. It was not paid for and they pawned the radio for money. Defence – The appellant submitted that the taking of the radio was with the consent of the lawful possessor.

Ratio – Owners of the goods unknown. Doctrine of constructive possession applies in the employer/employee relationship. Where an operator of the store is in physical custody and physical control of property he does not possess it in the legal sense. Appeal Dismissed.

MENS REA of Larceny a) Intention to deprive owner permanently - Refer to s118 of the Crimes Act - Can prove directly if accused has made such admission. - Otherwise an inference can be drawn of ‘an intention to permanently deprive’ from his/her actions.

118 Intent to return property no defence Where, on the trial of a person for larceny, it appears that the accused appropriated the property in question to the accused’s own use, or for the accused’s own benefit, or that of another, but intended eventually to restore the same, or in the case of money to return an equivalent amount, such person shall not by reason only thereof be entitled to acquittal.

**Does Section 118 remove intention to permanently deprive? NO!!

Foster v R (1967) 118 CLR 117 Charge – F lived with Bakers and took his gun home back to his parents to show them. He was convicted of larceny when he took a gun belonging to his flatmate, one Mr Baker a security guard. When arrested and at the trial the appellant submitted that he always intended to restore the goods to Mr Baker. Defence – The fault element of larceny requires the intent to permanently deprive the true owner possession or property in the goods taken. Ratio – Mere possession of goods is different from assuming ownership and doing with the goods as the taker sees fit or to use them in a way inconsistent with the intention of the true owner. If the taker converts the goods to his benefit or the benefit of another or denies the owner property in the goods even with the intension of restoring them it is larceny. Appeal allowed. New trial ordered. Per BarwickCJ: – IF intention is to deprive the true owner for a limited time, is NOT larceny - BUT if intention to exercise ownership of the goods, to deal with them as his own, then it is larceny. (an intention later to restore the property in the goods will not prevent the original taking being larcenous) **Note – this case looked at s118 of the Crimes Act - F found mere borrowing, no ownership, no larceny

Reg v Cockburn [1968] 1 All ER 466 Charge – The appellant was convicted of larceny after he took a £50 note from the till of a shop he managed on behalf of the owner. He then intended to and had the means to replace the note with a cheque the next working day. Defence – The appellant submitted he intended to repay the amount of the money and cited dicta from a previous case that declared it good law for him to do so. Ratio – The dicta is not good law. The appellant still took property that did not belong to him and forced upon the true owner a substitution that he did not consent to. Appeal against conviction dismissed. Sentence varied. – subsequent intention to return property is not a defence (larceny already committed – took something not his, no claim of right, no consent of owner). Does not mean there is no intention to permanently deprive at the time of taking, nor an intention to substitute different property of the same value.

DOCTRINE OF CONTINUING TRESPASS - When does the criminal intention arise? - i.e. when is the dishonesty, lack of belief of claim of right; and intention to permanently deprive legally contemporaneous with the physical taking of the property?

Riley (1853) 169 ER 674 Facts – Shepherd drove sheep in foggy day, some black sheep (not his) entered his flock and he sold them all Courts – Baron Parke: “The original taking was not lawful. The prisoner, being originally a trespasser, he continued as a trespasser all along…and, being a trespasser, the moment he took the lamd with a felonious intent, he became a thief”.

Minigall v McCammon [1970] 1 SASR 82 – doctrine of continual trespass distinguished? Charge – The accused is charged with larceny after finding a wallet at his local TAB and taking it without any intent. He decided to keep it three days later when he investigated the contents of which, was cash and identifying papers of the owner. Defence – For the offence of larceny to exist the intent to permanently deprive the owner of the property has to be present at the time of the taking. Ratio – When the accused took the wallet with the absence of intent to locate the true owner or the belief that it was abandoned or the true owner could not be found, he committed a trespass against the owner. Later when discovering the contents of the wallet, he decided to appropriate the property to himself he converted his trespass into a larceny. Bray CJ: “…if the original taking is a trespass, or it might be better to say, is tortious, the subsequent dishonest appropriation will be a larceny DESPITE the general rule that the animus

furandi must exist at the time of the taking… This has been said to be an anomalous rule and the invention of the judges in Riley… but I think now it is firmly established”.

Contemporaneity of mens rea and actus reus - this is a legal fiction  guilty act & mind must appear at the same time -

The above ACTUS REUS and MENS REA elements must be legally contemporaneous. i.e. the mens rea elements must occur at the time the property is taken. However this can create difficulties when the taker of the property was initially unaware that the property had been acquired, but subsequently decided (dishonestly) to keep the property.  the doctrine of continuing trespass deals with this issue.

b) Dishonesty or Fraudulence (Unlawful) – see s4B of Crimes Act. Test of dishonesty is now defined in Section 4B of the Crimes Act (from 22 Feb 2010)

4B Dishonesty (1) In this Act: dishonest means dishonest according to 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, dishonesty is a matter for the trier of fact.

Section 4B effectively re-introduces the test in Ghosh (1982) and SUPERSEDES the High Court decisions of Peters (1998) and McLeod (2003). -

Australian courts have held that the words ‘fraudulently’ and ‘dishonesty’ are interchangeable: Glenister v R [1980] 2 NSWLR 597.

-

It is an open question of statutory definition of ‘dishonesty’ in s4B affects the definition of ‘fraudulently’ to be applied in the context of larceny.

Note – s4B of the Crimes Act 1900(NSW) reintroduces the Gosh test: -

The act done is dishonest according to the standards of ordinary decent people. (Objective)

-

The accused must realise the act is dishonest according to those standards. (Subjective)

Peters v R (1998) 192 CLR 493 Charge – The appellant was convicted of conspiracy to defraud the Commonwealth after submitting a deceptive tax return. Defence – The appellant submitted that the trial Judge should have instructed the jury the prosecution had to prove beyond reasonable doubt an absence on behalf of the appellant that he had a legal right to carry out the conduct that he did. Ratio – When deciding how a jury should be instructed, the term dishonestly if is in the meaning of the ordinary sense then the jury should be instructed to consider the dishonesty as to the standards of ordinary decent people. If the term dishonesty is given a special meaning by the wording of a statute, it would be necessary to instruct the jury as to the special meaning. Appeal dismissed for different reasons.

Macleod v R (2003) 214 CLR 230; 197 ALR 333 Charge - The appellan...