Larceny Exam Summary PDF

Preview

Summary

Exam summary for Larceny NSW...

Description

LARCENY S 117 of Crimes Act – not defined in Act, elements found at common law in Illich. “At common law, larceny is committed by a person who, without 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, to permanently deprive the owner thereof”: Illich (1987) Definitions Property is defined in s 4 includes every description of real property and personal property etc The elements for Larceny as defined in: Illich Actus Reus 1. Property capable of being stolen 2. Property belonging to another/in someone else’s possession 3. Asportation-moved/Appropriation-physical interference without consent 4. Without consent of the owner/possessor Mens Re Reaa 1. Intention to deprive owner permanently 2. Dishonesty/Fraudulence 3. Honest Belief in a Claim of Right

Property capable of being stolen •

The stolen item meets the definition of property under 4B(1)as it is____. It is clear on the facts that the property is tangible (R v White) physical possession (Croton v R) of some value (Daley) that is moveable (Potisk (1973)

• • • • •

Must be considered property under s 4 Must have some value, nominal value is enough (exchange value or monetary value): Daley (cheque) Must be capable of being moved-Kelly Not money in a joint bank account: Croton Money in a bank account technically doesn’t exist so larceny cannot happen when money is moved illegally from an account – Croton It is not possible to steal land -Young (1947) As property must have an owner, abandoned property cannot be stolen -Macdonald As it was intentionally given up by the owner -Hibbert v McKiernan Theft of land (moving fences or squatting) is not larceny - Young

• • • •

Property belonging to another/in someone else’s possession • • •

the property must be in someone else’s possession, belonging to another: Kelly (1999) Possession of prohibited goods, or goods stolen from another, the thief holds possession of what he has stolen: Anic (1993) It doesn’t matter that the owner cannot be identified, regardless who the actual owner of the property is, (radio in shop): Ellis v Lawson (1987)

Asportation-moved/Appropriation-physical interference without consent • • •

property must have been moved. Slight physical movement of the property is sufficient: Wallis v Lane It must be a physical act, involving an element of interference with the right of the owner (supermarket), like changing store labels to a lower price: Morris (1984) It can be money withdraw money from teller machine without an account- Kennison

Without consent of the owner/possessor • • •

Asported or appropriated the goods inconsistent with the terms of the licence, asportation without consent (goods taken Grace Bros): Kolosque v Miyazaki (1995) Scope of license agreement, machine could not give consent, closed account, withdrawing $200 ATM: Kennison v Daire (1986) goods from shelves of supermarket and replace the labels: Morris

Mens Re Reaa

Intention to deprive owner permanently • • • •

•

•

Larceny is not committed unless the defendant, at the time of the taking, intends to deprive the owner of the property permanently: Foster (1967) Difficulties arise where the defendant takes the goods of another with the intention of returning them at a later time, subject to specific conditions: Foster The HC read s 118 narrowly as dealing “with the case where an accused has appropriated the property, and not of an accused who has only assumed possession of it”: Foster Therefore, where the defendant takes the property - an intention to return the property is not a defense to the charge of larceny - if the defendant has appropriated the property for their own use or benefit, or for another’s use or benefit - Foster Altered condition or substitute different property: where the defendant intends to return the property to the owner, but in a substantially altered condition or with reduced value larceny can be charged (caught with a cheque): Cockburn (1968) Found wallet in shop, no initial intention to keep, but keeps it anyway – not guilty initially, but guilty later when keeps it -Minigall (1970)

Dishonesty/Fraudulence • •

•

The test for dishonesty is both subjective and objective: Ghosh (1982) Dishonesty is defined in s 4B of the Crimes Act and is ‘dishonest according to the standards of ordinary people (objective) and known by the defendant to be dishonest according to the standards of ordinary people (subjective)’. An intention to return the property and not fulfil the requirement of moral dishonour associated with ‘fraudulent’ intent would suggest that the defendants’ behaviour was not dishonest: Feely (1973)

Honest Belief in a Claim of Right • • • • • • • •

The test is subjective: Fuge (2001) Must involve a belief as to the right to the property or money in the hands of another: Fuge The claim must be genuinely held, whether it was well founded in fact or law or not: Fuge The belief does not have to be reasonable, a colourable pretence is insufficient: Fuge Can extend to cases where what is taken is their equivalent in value, but not go beyond that to which the bona fide claim attaches: Fuge An honest belief in a claim of right will negate the mens rea of larceny (oil drums): Lopatta (1983) A belief in a claim of right due to a mistake of law may negative charges of larceny for the mistake prevented the defendant from forming the necessary mens rea for the offence: Lopatta A claim of moral right is insufficient to negative a charge of larceny: Fuge (2001)

Contemporaneity •

For the defendant to be guilty of larceny the defendant must have had fraudulent intent at the time of taking: Thurborn (1848)

Doctrine of Continuing Trespass •

Where an original taking is trespassory, a subsequent fraudulent intention will ground a charge of larceny, (prisoner taking sheep): Riley (1953), then again firmly established in: Mingall (1970) Riley principle is particularly important in larceny by finding i.e. where the defendant picks up property belonging to another, without any specific intent regarding the property. If the defendant later forms the necessary mens rea for larceny, the Riley principle will apply so that the defendant may be guilty of larceny, as the original taking was trespassory.

•

Defendant lacked the necessary mens rea at the time of taking the lamb however the original taking was trespassory (Without the consent of the owner), fraudulent intent allowed a charge of larceny: Buttle (1960...