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Larceny
- By Student at Law
- Published 13/06/2007
- Sydney Uni 2006
- Unrated
Offences of Dishonesty
Larceny
• Very arcane area of the law, designed for a different era – physical tangible items for protection of community.
• Doesn’t account for the electronic means we have today, making notion of “taking and carrying away” problematic in many situations.
• S116 Crimes Act relates back to regnal year of George IV, arcane legislation, hence look to common law for definition.
Elements of Larceny.
Larceny has the following elements:
Prohibited conduct:
Anyone (1) without the consent of the owner (2) takes and carries away (3) anything capable of being stolen;
Mental State:
(4) fraudulently (5) without claim of right (6) with intent at the time of taking to permanently deprive (Illich (1986)162 CLR 110).
1. Without the consent of the owner
• “Owner” includes any part owner or person having possession or control of special property (capable of being stolen).
• Absence of the owner’s consent is crucial for the common law offence of larceny (Croton). Consent may be express, implied, continuing or conditional.
• Can be violation of a possessory agreement e.g. person such as mechanic given property for specific purpose and steals it. This situation covered by statutory provisions governing rights and duties of a ‘bailee’ (a person who holds property of another on condition that he/she deal with it according to specific conditions).
• Larceny operates through “possession” and “ownership” is inferred from that. Hence person can act as owner even if ownership has not passed.
Croton v R (1967) 117 CLR 326 (High Court)
Facts: Accused had formed an association with a woman to whom he was not married. Did not tell her he was already married. Made arrangement to live off his wages and bank hers for honeymoon or house, so they opened a joint bank account for that purpose. Accused then took a large amt of money out of account without her knowledge and opened another account in his name. He was convicted of three counts of larceny for three separate withdrawals. He appealed.
Judgment: (Barwick CJ) Appeal was allowed on the basis that the money was not stolen from the victim because at the relevant time it was not in her possession, and it was not stolen from the bank because it transferred possession to the accused. Regardless of whether he obtained the money by deceit, a chose in action (which is a debt owed by the bank once the money has actually been deposited) cannot be stolen. At the time the victim parted with the physical money she had consented to this.
Although in a popular sense it may be said that a depositor with a bank has "money in the bank", in law he has but a chose in action, a right to 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 in contradistinction to a chose in possession. Money was not in joint possession or possession of the victim alone. Bank was not an “agent” and accused was not a “bailee”
If the correct conclusion of fact is that there was a binding arrangement of a kind to be legally enforceable that the credit in the account should only be used for a sufficiently defined purpose, and that the withdrawal of the balance in the account by the applicant, itself evidenced his intention to use the proceeds for some purpose unconnected with the agreed purpose (which I doubt), the applicant none the less,
in my opinion, would not commit larceny, but might be found guilty of fraudulent misappropriation (alternate offence).
Result: Leave to appeal granted, appeal allowed and conviction should be quashed.
Kennison v Daire (1986) 160 CLR 129 (High Court) - Stealing from Machines.
Facts: Customer of bank in SA convicted of larceny by virtue of having dishonestly drawn money from an automatic teller machine at a time when it was offline from the computerised account system. He did so when he did not have the corresponding credit in his account (account was closed).
Judgment: conviction upheld; Argument that bank had “consented” to the withdrawal of cash via its machine was rejected. Machine, being ‘non-human’ was incapable of giving such consent and facts did not otherwise disclose any consent, implied or otherwise, on part of bank. In circumstances, bank never intended ownership in the money to pass via its machine or any other means to a person not entitled to it.
Larceny by Finding – must be an owner before person can be convicted of theft.
Where the Crown alleges stealing by finding, the Crown must negative the possibility that the goods have been abandoned and that the accused did not believe that the owner could be found. What the accused does to attempt to locate the owner is relevant:
MacDonald [1983] 1 NSWLR 729 (finds camera on fence and keeps it)
Arises where person finds goods that are apparently lost, and takes them away for his own use. Accused must believe that true owner could be found by taking reasonable steps, but intends to keep property from the owner. This can be inferred from the facts of the finding. Intention to keep goods from the owner must exist at the time of taking, but can arise at any time during a continuous trespass (e.g. decision to keep wallet after finder later looks at it and finds money – Mingal v McCammon [1970] SASR 82).
Held that in inferring finder’s belief, jury can account for what finder does in relation to the goods and what he doesn’t do that might be consistent with the acts of an honest person. The necessary intent to permanently deprive is narrowly inferred, e.g. was the owner known to the finder?; Were there any identifying marks on the article?
Thompson v Nixon [1966] 1 QB 103
Necessary that actus reus and mens rea of larceny are contemporaneous at time of finding. Therefore if accused at time of finding does not think that by taking reasonable steps the owner can be found, he does not commit larceny. Issue of coincidence rather artificial with respect to larceny.
Riley [1853] 169 ER 674 (Continuing trespass)
Coincidence between taking without consent and intention to permanently deprive assisted by presumption of continuous trespass against owner’s property.
Facts: Accused had driven flock of lambs from field, supposing all of them to be his. One lamb was property of another farmer but joined the flock without accused’s knowledge. Next day accused discovers lamb and decided to sell it as if it was his.
Judgment: conviction upheld, even though trespass against victim’s property, and therefore the ‘taking’, was complete once the flock was driven from the field. This was also a time where accused did not have intention to permanently deprive owner of his property. Court proposed the fiction that accused continued to be a trespasser from time left field til time it returned to rightful owner (if ever). At time accused decided to sell the lamb he became a thief. Principle only applies to situations where original taking was trespassory. Not where property originally transferred with consent of owner.
A later discovery of the owner and intention to keep the goods will not suffice: Thurborn (1848) 169 ER 293. Occupiers of land have possession of lost things on it: Hibbert v McKiernan [1948] 2 KB 142.
Larceny
• Very arcane area of the law, designed for a different era – physical tangible items for protection of community.
• Doesn’t account for the electronic means we have today, making notion of “taking and carrying away” problematic in many situations.
• S116 Crimes Act relates back to regnal year of George IV, arcane legislation, hence look to common law for definition.
Elements of Larceny.
Larceny has the following elements:
Prohibited conduct:
Anyone (1) without the consent of the owner (2) takes and carries away (3) anything capable of being stolen;
Mental State:
(4) fraudulently (5) without claim of right (6) with intent at the time of taking to permanently deprive (Illich (1986)162 CLR 110).
1. Without the consent of the owner
• “Owner” includes any part owner or person having possession or control of special property (capable of being stolen).
• Absence of the owner’s consent is crucial for the common law offence of larceny (Croton). Consent may be express, implied, continuing or conditional.
• Can be violation of a possessory agreement e.g. person such as mechanic given property for specific purpose and steals it. This situation covered by statutory provisions governing rights and duties of a ‘bailee’ (a person who holds property of another on condition that he/she deal with it according to specific conditions).
• Larceny operates through “possession” and “ownership” is inferred from that. Hence person can act as owner even if ownership has not passed.
Croton v R (1967) 117 CLR 326 (High Court)
Facts: Accused had formed an association with a woman to whom he was not married. Did not tell her he was already married. Made arrangement to live off his wages and bank hers for honeymoon or house, so they opened a joint bank account for that purpose. Accused then took a large amt of money out of account without her knowledge and opened another account in his name. He was convicted of three counts of larceny for three separate withdrawals. He appealed.
Judgment: (Barwick CJ) Appeal was allowed on the basis that the money was not stolen from the victim because at the relevant time it was not in her possession, and it was not stolen from the bank because it transferred possession to the accused. Regardless of whether he obtained the money by deceit, a chose in action (which is a debt owed by the bank once the money has actually been deposited) cannot be stolen. At the time the victim parted with the physical money she had consented to this.
Although in a popular sense it may be said that a depositor with a bank has "money in the bank", in law he has but a chose in action, a right to 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 in contradistinction to a chose in possession. Money was not in joint possession or possession of the victim alone. Bank was not an “agent” and accused was not a “bailee”
If the correct conclusion of fact is that there was a binding arrangement of a kind to be legally enforceable that the credit in the account should only be used for a sufficiently defined purpose, and that the withdrawal of the balance in the account by the applicant, itself evidenced his intention to use the proceeds for some purpose unconnected with the agreed purpose (which I doubt), the applicant none the less,
Result: Leave to appeal granted, appeal allowed and conviction should be quashed.
Kennison v Daire (1986) 160 CLR 129 (High Court) - Stealing from Machines.
Facts: Customer of bank in SA convicted of larceny by virtue of having dishonestly drawn money from an automatic teller machine at a time when it was offline from the computerised account system. He did so when he did not have the corresponding credit in his account (account was closed).
Judgment: conviction upheld; Argument that bank had “consented” to the withdrawal of cash via its machine was rejected. Machine, being ‘non-human’ was incapable of giving such consent and facts did not otherwise disclose any consent, implied or otherwise, on part of bank. In circumstances, bank never intended ownership in the money to pass via its machine or any other means to a person not entitled to it.
Larceny by Finding – must be an owner before person can be convicted of theft.
Where the Crown alleges stealing by finding, the Crown must negative the possibility that the goods have been abandoned and that the accused did not believe that the owner could be found. What the accused does to attempt to locate the owner is relevant:
MacDonald [1983] 1 NSWLR 729 (finds camera on fence and keeps it)
Arises where person finds goods that are apparently lost, and takes them away for his own use. Accused must believe that true owner could be found by taking reasonable steps, but intends to keep property from the owner. This can be inferred from the facts of the finding. Intention to keep goods from the owner must exist at the time of taking, but can arise at any time during a continuous trespass (e.g. decision to keep wallet after finder later looks at it and finds money – Mingal v McCammon [1970] SASR 82).
Held that in inferring finder’s belief, jury can account for what finder does in relation to the goods and what he doesn’t do that might be consistent with the acts of an honest person. The necessary intent to permanently deprive is narrowly inferred, e.g. was the owner known to the finder?; Were there any identifying marks on the article?
Thompson v Nixon [1966] 1 QB 103
Necessary that actus reus and mens rea of larceny are contemporaneous at time of finding. Therefore if accused at time of finding does not think that by taking reasonable steps the owner can be found, he does not commit larceny. Issue of coincidence rather artificial with respect to larceny.
Riley [1853] 169 ER 674 (Continuing trespass)
Coincidence between taking without consent and intention to permanently deprive assisted by presumption of continuous trespass against owner’s property.
Facts: Accused had driven flock of lambs from field, supposing all of them to be his. One lamb was property of another farmer but joined the flock without accused’s knowledge. Next day accused discovers lamb and decided to sell it as if it was his.
Judgment: conviction upheld, even though trespass against victim’s property, and therefore the ‘taking’, was complete once the flock was driven from the field. This was also a time where accused did not have intention to permanently deprive owner of his property. Court proposed the fiction that accused continued to be a trespasser from time left field til time it returned to rightful owner (if ever). At time accused decided to sell the lamb he became a thief. Principle only applies to situations where original taking was trespassory. Not where property originally transferred with consent of owner.
A later discovery of the owner and intention to keep the goods will not suffice: Thurborn (1848) 169 ER 293. Occupiers of land have possession of lost things on it: Hibbert v McKiernan [1948] 2 KB 142.
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