Week 10 crim - notes PDF

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Week 10- property offences  Common law offence of larceny  Intent to deprive permanently  Conditional return  Bona fide claim of right  Larceny by trick  Larceny as a bailee  Offence of fraud  Robbery  Burglary

LARCENY - S117 CRIMES ACT:’ 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. - Definition: Illich v R A person steals 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 time of such taking, permanently to deprive the owner thereof. - Elements: Actus Reus: - (d) took and carried away - Property capable of being stolen - Which belonged to another; and - Without the consent of the owner Mens rea: - At the time of taking - (d) acted with the intention of permanently depriving the owner; - Without a claim of right - Fraudulently MUST HAVE MENS REA AT THE TIME OF ACTUS REUS

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Burden of proof – prosecution must prove all elements of the offence beyond a reasonable doubt  “taking and carrying away” – R v Lapier (1784) 168 ER 263, R v Ward -Must be asportation; physical removal of the property said to be stolen -Slightest movement is enough but there must be some movement -Passive retention of the property not enough 

Property capable of being stolen 1. Property must be of some value; even slightest = sufficient 2. Property must be moveable (i.e: not land) 3. Can be tangible or intangible (e.g: s134, title deeds to land) 4. Electricity can be stolen under S64, Electricity supply act 1995 NSW 5. Only slightest tangibility is necessary (D can steal gas: low v. blease (1975))

6. Prosecution need not to prove which precise objects have been stolen 7. Stealing of animals – special provisions: s126-32,505,506,512 8. Property must have an owner or be possessed cannot be stolen. Abandonment occurs when the owner intentionally gives up any interest in the property.  -

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Property which belongs to another In the other’s “ownership, possession or control” Even if the person is in possession or control unlawfully Possession – whatever you know is physically in your custody or under your physical control Actual possession/constructive possession.  Actual possession – present physical custody or right to take custody. Intention to possess the property Some degree of physical control of the property Hibbert v McKiernan [1948] 2 KB 142 Need not to be lawful See s94 AA  Constructive possession – legal right to assume possession whenever person wishes to do so Employer/employee – Ellis v Lawson (1987). 33. A Crim r 69 Ss155,156

 property can be stolen from someone who is. Merely in control of the property (e.g: it. Is on their person) even when they are not aware of it  property can be stolen from an owner who is. Not in possession or control of property larceny by finding – R. v Flood (1869) 8SCR (NSW) 299  an owner of property can be guilty of larceny if the owner takes the Property from. The person who is Lawfully in possession of it – Rose v Matt [1951] 1 KB 810  -

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Without the consent of the person in possession Taking of property must amount to a trespass Ellis v. Lawson (1987) 33 A Crim R 69 Trespass. = taking property against the will of the person in possession Don’t need “trespassory taking” in relation. To stolen goods s94 AA Kennison v Daire (1986) 64 ALR 17 Kolosque v Miyazaki Cant be said to consent if threats or intimidation – R v Lovell (1881) 8 QBD 185 Cant consent if fraud or trickery- this is “larceny by trick” or “obtaining by false pretences”

Consent due to a mistake D receives property due to owners mistaken consent, should d be liable for Doing no more than taking advantage of another mistake? 2 types of mistake: - Unilateral – D obtains property due to a mistake, and D is aware of the mistake at the time; - Mutual – D obtains property due to a mistake and only subsequently becomes

aware of the mistake...