LAW109 Week 10 Property Offences PDF

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Week 10 lecture Propery Offences...

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LAW109 Week 10 – Property Offences Lecture:               

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Larceny is an offence against possession Originally concerned with preventing disturbances in public order – fear of having property possession disturbed via force – not about private property ownership Pre-late 18th Century England, more larcenies were capital crimes Law of larceny struggling with changes in technology – non-tangible things like shares in a company Law reform, creation of new offences like fraud Larceny remains common law in NSW (codified in UK and most Australian states) – UK codified 50 years ago - Theft Act 1968 Crimes Act provides only maximum sentence One of the most complex common law offences: “more distinguished perhaps than any other offence by its anomalies and irrationalities” (text 12.15) Statute sets out procedures, penalties and circumstances of aggravation Wide array of overlapping statutory offences created to plug gaps: fraud, embezzlement, misappropriation, obtain benefit by deception, etc. More than 150 stealing-type offences in NSW Key concepts: Ownership – Legal owner exerts exclusive proprietary rights over property Possession – Usually demonstrates right to legally exclude others from access to property Custody or Control – when there is the manual keeping of the property (e.g. when an employee takes possession of equipment to do a job) Common law offence of larceny (Ilich) - Larceny is a crime against possession. - Involves taking and carrying away (asportation) - Applies to tangible property (see also s 134) Statutory offence of Fraud (s 192E; ss192B-D) - Fraud is a crime against ownership, possession or control. - Involves a deception (telling a lie) - Extends to intangible benefits or losses

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Larceny - Common Law – R v Ilich - S117 Crimes Act (penalty) - 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. Conduct elements: - Taking and carrying away (asportation) - Something capable of being stolen - In someone’s possession (whether or not the owner) - Without the consent of the person in possession Fault elements (must have all): - Intention to permanently deprive the true owner of the property in the thing - Without an honest claim of right - Dishonesty Actus reus: property Defined at common law as being; - Tangible (Money?) - Of value - Moveable - Excludes abandoned property Expansive definition of ‘property’ in s 4 of Crimes Act, but not used for larceny because larceny is defined at common law. Statutory definition is used for fraud – a statutory offence Actus reus: Taking and carrying away (Asportation) - The lightest movement is enough – Wallis v Lane [1964] VR 293 - Property must be moveable Misappropriation of land cannot be the subject of larceny (but can be the subject of fraud) Possession of illegal things: Anic v R (1993) 68 A Crim R 313 - How can you steal something that’s already illegal to own? Without consent of the owner/possessor Kennison v Daire (1986) 60 ALJR 249 - Kennison closed his account and withdrew the balance but did not return the card. He then used his card to withdraw $200 from an ATM

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- He said that ‘the ATM consented) - ‘Banks are not vulnerable victims that need police protection’ Croton v The Queen (1967) 117 CLR 326 – human bank teller so there was consent Fundamental mistakes that vitiate consent. There are 3 kinds of fundamental mistakes that prevent ownership from passing: - Mistaken identity of the person whom property is given (post office clerk believed M was the person referred to the letter authorising payment, Middleton (1873), conviction upheld) - Mistake as to the identity of the property handed over (Both A and transferor thought it was a shilling but in fact it was a sovereign, A kept the sovereign, Ashwell (1885), conviction upheld) - Where an excess in the quantity of goods is delivered, ownership of the excess has not passed to the receiver (8 sacks too many delivered to A who appropriated them, Russel v Smith (1958), conviction upheld) Mens rea: Intention to permanently deprive - S 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. - Foster v The Queen 118 CLR 117 – took a pistol from his friend to show his parents, did not want to use or benefit from it. He said he intended to return it. Did he have an intention to permanently deprive his friend of the gun? Claim of right: Fuge (2001) 123 A Crim R 310 - Must involve a belief as to right of property or money in the hands of another - Must be honesty held (even if not well founded in fact or law) - Does not have to be reasonable, but a colourable pretence is insufficient - Must be one of the legal (not moral) entitlement to the property - Is not confined to the specific property or banknotes once held by the claimant, but can extend to cases where what is take is their equivalent in value (e.g. Lopatta) - Must extend to the entirety of property taken - May extend to where the means used to take the property involved an assault, use of arms etc. (i.e. about the D’s belief of right to the property, not the means used to obtain the property, e.g. Langham) - In the case of an offender charged as an accessory, what is relevant is the existence of an bona fide claim in the principal offender or offenders Mens Rea: Fraudulent/Dishonest - Crimes Act 1900: s 4B(1) Dishonesty - In this Act dishonest means: - 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). - (2) In a prosecution for an offence, dishonesty is a matter for the trier of fact. Larceny by finding: R v MacDonald [1983] 1 NSWLR 729 - ‘if a person finds goods that have been actually lost or are reasonably supposed by him to have been lost, and appropriates them, with intent to take the entire dominion over them, really believing when s/he takes them, that the owner cannot be found, it is not larceny. But if s/he

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takes them with the like intent, though lost, or reasonably supposed to be lost, but reasonably believing that the owner can be found, it is larceny.’ Receiving Stole Goods and Goods in Custody - Crimes Act ss 188-189 ‘receiving stolen goods’ - Elements: - Property had been stolen - Accused received property – (property must be within their control) - Knowledge that property was stolen AT TIME received (SUBJECTIVE) - Crimes Act s 527C ‘unlawfully in possession of property’ - In possession of property that ‘may be reasonably suspected of being stolen or otherwise unlawfully obtained’ (OBJECTIVE) Joyriding – s 154 A Fraud - Property [applies to fraud, not larceny] 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 h the same may have been converted or exchanged, and everything acquired by such conversion or exchange, whether immediately or otherwise. Part 4AA, Div 1 and Div 2 – codified in 2009 so not much case law S 192E Fraud Deception? – Moore v The Queen (2016) 262 A Crim R 590...