Legal Principles Topic 7 Dishonest Acquisition (Larceny and Fraud) PDF

Preview

Summary

Download Legal Principles Topic 7 Dishonest Acquisition (Larceny and Fraud) PDF

Description

Legal Principles Topic 7: Dishonest Acquisition

Elements of Larceny Legislation s117: ‘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’. (punishment for larceny) Ilich (1987) HC Wilson and Dawson JJ: ‘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…’

Actus Reus Overview

1. 2. 3. 4.

Mens Rea Overview

1. 2. 3.

Property capable of being stolen (i.e. tangible) Anic, Croton, White Property in possession of another (referred to as belonging of another) Anic, William v Phillips Property taken and carried away (referred to as asportation) Wallis v Lane, Potisk Taken without consent of possessor (sometimes referred to as loosely as the “owner”) Middleton, Kenison v Daire, Kolosque v Miyazaki Intention to permanently deprive s118, Holloway, Phillips v Strong, Foster, Lowe v Hooker, Weatherstone, Sharp v McCormack, Beecham, Lloyd Fraudulently Glenister, Feely, Weatherstone, Ghosh, Peters, Macleod, Baatman Without any claim of right to the property Walden v Hensler, Fuge, Williams, Goodswell v Yunnypingu, DPP ref No 1 of 1999

Notes:  Larceny - Coincidence needed at the act of the taking and carrying with the property and the mens rea element of intention to permanently deprive the owner. ‘at the time of such taking’  Larceny - all actus reus and mens rea elements much be established Larceny by a Bailee Legislation s125 Larceny by Bailee: ‘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 indicated 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 contracted to restore, or deliver, the specific property received by him or her, or may only have contracted to restore, or deliver, the property specifically’ Actus Reus Elements for Larceny by Bailee: 1 Bailee (a person who is given temporary possession of property by the bailor either for the bailee’s own benefit e.g. hiring a car, or for the benefit of the bailor e.g. leaving a watch for repair). 2A Takes property or any part OR Establish only one = guilty of larceny

2B Converts property or any part OR 2C Takes any property the original property has been converted into or exchanged for 3 Taking or converting for own use or use of any person other than the owner Mens Rea Elements for Larceny by Bailee: 1 Intention to permanently deprive 2 Fraudulently 3 Without any claim of right to the property

Larceny by a Servant

Legislation s155 Definition of Clerk or Servant: ‘Every person employed for any purpose, as, or in the capacity of, a clerk, or servant, or as a collector of moneys, although temporarily only, or employed also by other persons or employed to pay as well as receive moneys, or although the person had no authority from his or her employer to receive money, or other property, on his or her account, shall be deemed a clerk, or servant.’ s156 Larceny by a Servant: ‘Whosoever, being a clerk, or servant, steals any property belonging to, or in the possession, or power of, his or her master, or employer, or any property into or for which it has been converted, or exchanged, shall be liable to imprisonment for ten years’. Actus Reus Elements for Larceny by a Servant 1 Property capable of being stolen 2 Property in possession of another 3 Property taken or converted, or exchanged, and carried away 4 Taken without consent of possessor Mens Rea elements for Larceny by a Servant 1 Intention to permanently deprive 2 Fraudulently 3 Without any claim of right to the property 4 Defendant is a clerk or servant – employee

Embezzlement Legislation s157 Embezzlement by clerks or servants ‘whosoever, being a clerk, or servant, fraudulently embezzles, either the whole or any part of, any property delivered to, or received, or taken into possession by him or her, for, or in the name, or on the account of, his or her master, or employer, shall be deemed to have stolen the same, although such property was not received into the possession of such master, or employer, otherwise than by actual possession of such clerk, or servant, and shall be liable to imprisonment for ten years.’ Definition of embezzlement: Brown et al: taking possession of property for oneself rather than one’s employer Actus Reus Elements for Larceny by a Servant 1 Defendant is a clerk or servant s155 2 Embezzles property Mens Rea elements for Larceny by a Servant 1 Fraudulently 2 Without a claim of right made in good faith 3 Intent to permanently deprive

Actus Reus Larceny Elements

Things capable of being stolen Things capable of being stole

Tangible property Croton (1967) Barwick CJ: Open a joint bank account, Croton withdrew all the money from the joint account and deposited it into an account in another bank, solely in his name. ‘At common law larceny is taking and carrying away the personal goods of another from any place with the felonious intent to convert them to the taker’s own use, and to make them permanently his own property without the consent of the true owner’  Tangible property having some value (personal goods) Anic (1993): Defendants were convicted of burglary with intent to steal and assault with intent to rob when they broke into a house in the mistaken belief that it contained cannabis. ‘Tangible personal property having some value’ Gas White (1853): p971 – significant limitation on the scope of larceny is that the property must have a physical form. It must be something that can be “taken and carried away”, even if the physical nature of the property is slight. ‘gas can be stolen from a pipe’. Domesticated farm animals p970 – At common law domesticated farm animals can be stolen from their possessor. Legislation in Crimes Act for the stealing or interference with farm animals. Legislation:  S4 defined as “cattle” (ss 126-131).  S126 for stealing which results in 14 years’ incarceration Money Croton (1967): ‘paper money or coins was not taken out of the possession of the joint owner of the bank credit’ Therefore, things capable of being stolen would be physical notes and coins not ‘money’ in a bank account.

Things NOT capable of being stolen

Land Not capable of being stolen because it can’t be “taken and carried away”. Fixtures Attached to the land, therefore cannot be stolen BUT extension of statutory provisions for removal of things attached to the land as larceny. Wild Animals Those animals not in possession of anyone are not subject of larceny Chose in action Croton (1967): Transferring money from a joint account into a single account: ‘recover from the bank the balance standing to his credit in account with the bank at the date of his demand, or the commencement of action – recovery will be effected by an action for debt’.  Not larceny to illegally remove money from a bank account (but may be fraud).  Money in a bank is a debt to the account holder, it is not physical notes and coins that were originally deposited. Copyright in song ‘form of intangible property’ - Copyright Act 1969 (Cth)

Property in possession of another

Two elements of Possession 1. Some degree of physical control of the property 2. An intention to maintain that physical control Custody: mere control of property without intention to control (i.e. 1 without 2) Possession of prohibited goods: Anic (1993) can have possession of goods which are unlawful such as prohibited drugs (in the case of Anic). ‘drugs are tangible property of some value’ referring to HC decision of Waterhouse (1911) ‘even a thief can have possession of the good stolen’ Constructive possession: Williams v Phillips (1957): possession held by an employee or servant within the terms of his or her employment or servitude is considered to be constructively in the possession of the employer or master.  Therefore, an employee can be guilty of larceny of their employee because their goods are said to be in the possession of the employer and that is in s156 ‘offence by larceny or clerk or servant’ Abandoned goods: The owner is considered to be the person who was the last person in possession of those abandoned goods. Goods left for charity: argued that those goods are not abandoned because the owner is intending to pass those goods to charity, so the charity is in possession. Property found on a person’s enclosed land: Hibbert v McKiernan (1948): Property will be in the constructive possession of the land owner, even if they are unaware of it.

Taken and Carried Away (asportation) Wallis v Lane (1964) defendant employed as a delivery man, moved two pairs of toe clips from his box and left them hidden on the tray of the truck. Herring CJ: ‘any movement of goods with an intent to steal them is sufficient to constitute an asportation… removal of the property from the spot where it was originally placed with intent to steal is sufficient for taken and carried away’ However, mere intention is not sufficient for the element of taken and carried away there needs to be a physical act  case of Potisk (1973) Potisk (1973) ‘the mere formation of a mental resolve to appropriate the thing, not manifested in any overt act, could not change an original innocent possession into a larcenous one’.  So, if you originally take and carry away some goods with consent and later on you decide to keep those that is just a mere mental resolve and there will be no coincidence of the actus and mens rea so therefore no larceny.

Taking without the consent of the possessor

Middleton (1973): Court referred to the Latin term Invitio domino ‘does not mean contrary to or against the will, but simply without it’.  A finder of a chattel may be guilty of larceny  A servant who steals his master’s property may be guilty of larceny Withdrawing money from a bank: Kennison v Daire (1986): Appellant had closed his account and withdrawn the balance but had not returned his card. He used his card to withdraw $200 from the machine, and he was able to do so because the machine was off-line and was programmed to allow the withdrawal of up to $200. When off-line machine was incapable of determining whether the card holder had any account which remained current. acted fraudulently with intent to permanently to deprive the bank of $200. Question of whether the appellant had taken and carried away with consent of the possessor (in this case the bank). Case above referred to Chambers v Miller (1862): ‘if a teller, having the general authority of the bank pays out money on a cheque when the drawer’s account is overdrawn, or on a forged order, the correct conclusion is that the bank intend that the property in the money should pass, and that the case is not one of larceny’ BUT ‘if your withdrawing money from an automatic teller machine and your account has been closed, the court in Kennison v Daire held that the ban only consents to withdraw by an automatic teller machine where the card holder has an account which is current’. Open question – if machine is off line and person with current account overdraws account.

Implied license  Taking without the consent of the possessor can also be in relation to an implied licence being broken.  If the possessor permits a person to take temporary custody of the property through a licence, but the property is dealt with in breach of the licence, an asportation without consent may have occurred Kolosque v Miyazaki (1995) Dowd J: Implied licence in shops - Implied licence is the consent to take goods from display, for fittings, or for inspection to the cash register for purchase. Licence agreement will be breached/broken if ‘the customer’s intention at the time the goods were taken is dishonest, either because there was no intention to pay for goods or there was an intention to damage the goods, any licence agreement is terminated’. Implied licence when lost property is found Thurbon (1848): prior possessor is deemed to consent to the finder taking possession in order for the property to be returned for the finder to keep those goods.

Mens Rea Larceny Elements

Intention to permanently deprive

Intent to permanently deprive Holloway (1848): Tanner paid on the basis of the number of skins he tanned and presented to his foreman, broke into the tannery’s warehouse and moved skins tanned by another employee to his area so that he could then present these to the foreman for payment. Parke B held that the element of intention to permanently deprive was missing because he did not intend to take the skins away from the employer but merely meant to defraud him by claiming payments for skins he had not tanned. Intention to return the property Phillips and Strong (1801): Borrowed horses and then rode them to another town. Legislation: s118 – 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’.  if you borrow someone’s property even though you intend to return it, if you use it as your own or your own benefit or that of another you may still be found liable for larceny. Foster (1967) Barwick CJ: Borrowed a gun from his mate in Goulburn and had taken it down to Canberra to show his parent. ‘intention to appropriate the goods to himself is more than merely to assume possession of it. And the appropriating goods themselves can be established by an intention on the part of the applicant to: (1 of 3) - Assume ownership of the goods - Deprive the owner permanently of the goods - Deprive him of the property in it  Intention to deprive true owner of possession for limited time cannot be considered as larceny  Intention of taker to exercise ownership of the goods, to deal with them as his own, an intention to later restore the property will not prevent the original taking from being larcenous. Intention to borrow fungibles such as money There is an intent to deprive because the intention is not usually to return actual coins or notes but merely their equivalent (value). Conditional appropriation Property will have been taken with an intention to permanently deprive despite an intention to return if the intention to return is condition. e.g. “refund fraud” Lowe v Hooker (1987) where the defendant stole goods from certain stores and then attempted to return the goods and gain a refund for them. ‘intention at the time of taking was to use the property as the accused’s own’. Glanville Williams ‘describes this sort of case as one which comes under the “ransom” principle and he says that 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 describes as coming within the word - with the intention of permanently depriving the other of it’ Sharp v McCormick (1986): employee took home a motor part to see if it fitted his car The attempt to describe the intention to return it if it did not fit as ‘having regard to the rights of the employer’. Exhausting the virtue of the property Beecham (1851): taking of a ticket for travel or to a concert and returning the ticket after date of travel or concert. ‘courts will find an intent to permanently deprive’. Lloyd (1985): Took films from cinemas in order to make an illegal copy claiming that they were merely “borrowing” the films and had no intention to permanently deprive. The court held ‘that the virtue of the copying had not been exhausted in that case, the borrowing seems to us, was not for a period, or in such circumstances, as made it equivalent to an outright taking or disposal – there was still virtue in the film’ Changing the nature of the property An intention to effect permanent deprivation of the property can also include dealing with the property in such a way as to change the nature of the property. Weatherstone (1987): fellow used wielding rods owned by the council with the intent of using them to repair local tennis court. The welding rods melted and fused the broken parts of the fence together – damaged the rods.  Court refers to the case of R v Smails where someone had taken some railway sleepers and cut them up and there was an intention to permanently deprive the owner. Street CJ: ‘destruction of goods where the goods cease to exist is intention to permanently deprive’ Findlay J: ‘slight alternation will not establish the intention to permanently deprive but substantial alternation is an intention to permanently deprive’

Fraudulently or dishonestly Definition Glenister (1980) & Macleod (2003): Terms fraudulently and dishonestly are used interchangeably. NSW

UK

Weatherstone (1987) only NSWCCA decision on fraudulently in larceny by Street CJ: who considered the term fraudulently in the context of the offence of larceny, equated dishonest with moral obloquy in reference to the wielding rods (case) where the fellow gained no personal advantage. However, if someone does gain a personal advantage that may meet the requirement of dishonesty but gaining a personal advantage is not an element of larceny.

Feely (1973) Lawton LJ: looked at the meaning of dishonestly in English Theft Act 1968 referring to the notion of ‘moral obloquy’ and stated that ‘the jury had to apply the current standards of ordinary decent people’.



Neither the Ghosh or Peters test have been applied in NSW.

Baartman (1998) Dunford J: applied Weatherstone referring to moral obloquy.

Peters (1998) HC: ‘held that the approach in Feely represents the Australian common law meaning of dishonesty’ – rejected Ghosh Gaudron and Toohey JJ: where necessary for the jury to decide whether an act is dishonest 1. Trial judge to identify the knowledge, belief or intent which is said to render that act dishonest. 2. Trial judge to instruct jury to decide whether the accused had that knowledge, belief or intent and if so 3. Jury to determine whether it was dishonest by the standards of ordinary decent people Macleod (1998): all members of HC adopted this as correctly expressing the above common law by Gaudron and Toohey JJ

Note: the test for larceny is NOT the test of Ghosh. Weatherstone: dishonesty involves means morally wrongful/involving a moral obloquy. Affirmed in Baartman (NSW - probably the dominant test).

Ghosh (1982): (subjective element) test for dishonest to be determined by the finder of fact by asking: 1. Whether according to the ordinary standards of reasonable and honest people what was done was dishonest. 2. Whether the defendant himself must have realised that what he was doing was by those standards dishonest.

Without any claim of right to the property Without a claim of right made in good faith:  Claim of right is a defence for the act of fraudulence  This is a way of rebutting the element of ‘fraudulently’ – so if a person has a claim of right in good faith it would be considered that they are not acting dishonestly Walden v Hensler (1987) explains the defence of a claim of right: to protect people from conviction to those making a legal mistake about private rights because private rights and the law of property can be quite complicated. Fuge (2001) Wood CJ at CL summarised the re...