Published on 13/06/2007

Larceny

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.

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Ruse v Reid [1949] 1 KB
Facts: Accused took victim’s bike to his home, kept it there overnight. Next morning after removing the pump and dynamo, consigned it to himself to await collection at the railway station.

Judgment: Whatever his state of mind (drunk or not), the accused’s original taking was a tort against the victim, which he his subsequently manifested intention to steal converted into a larceny.

2.   Takes and Carries Away
•   Difficulties arise with proof of ‘taking’ when accused is in lawful possession
•   Difficult to determine when it occurs (e.g. taking items on shelf at supermarket – is that different to shoplifting?
In Walsh (1824) accused charged with larceny of a bag from boot of a coach. He only succeeded in lifting bag from the floor of the boot, but not removed it outside. The mere lifting was sufficient for “taking”.

•   MISTAKE is an important issue (mistake on part of owner or agent, means accused presented with possession of the goods allowing him to ‘carry them away’- apparently minus the ‘taking’ component).
•   (i) mistake induced by defendant  can be larceny by trick (owner intends to part with possession of the chattel) or  obtaining by false pretences (induced by intention to defraud)
•   (ii) Accidental mistake  Illich

Middleton (1873) (mistake not induced by accused)
Facts: Accused presented his savings passbook account at post office to withdraw 10 shillings when the balance was 11 shillings. Counter clerk confused accused’s withdrawal with another and wrote 8 pounds against his account book and placed money on counter. Accused realised error but said nothing and took the money.

Judgment: Principle was that there was a taking sufficient for larceny if at the time the accused received the property, he knew he knew the victim was acting under the influence of a mistake. Majority held that conviction should stand b/c at time accused took the money; he knew it had been placed there for him by mistake.
- At the time, it was larceny by trick, which did not require that the mistake should be induced by the accused (unlike law on false pretences).

Hudson [1943] KB 458 (misdelivery case) (Court of Appeal)
Facts: Ministry of food intended to send a cheque to someone by surname Hudson. By mistake it was made payable to ‘Mr Hudson’. Same mistake was presumably made in addressing the envelope, for the letter was delivered to defendant, a ‘J.Hudson’ who lived close enough to the intended recipient that the addresses might be confused. No indication that he should have known that the cheque wasn’t for him. 3 weeks later, accused returned cheque to ministry informing them that his initial was J. The cheque was duly reissued (to him) and accused opened a bank account to deposit the cheque.

Judgment: Conviction for larceny upheld. Ct. took as irrelevant all events prior to time that accused knew that the cheque was not for him, yet did not deal with the issue that nothing he did thereafter could be considered “taking and carrying away” in a traditional legal sense. Appears to be situations of BOTH ‘larceny’ and ‘obtaining by false pretences’, depending on the time the cheques were sent to the accused, but the two offences are ALTERNATE offences and cannot stand together.

* Principle: by implication, larceny may have occurred when, owing to the mistake of the victim, the accused innocently receives property to which he is not entitled, which he CONVERTS to his own use or that of anyone other than the owner after he discovers the true state of affairs (cheque is a piece of paper, useless until he took step to compound the fraud)

Moynes v Cooper [1956] 1 QB 439 (overpayment)
Facts: Accused asked for an advance on wages from employer, which he was given. Later he was paid the full week’s wage, the earlier advance not deducted. When he opened the pay packet he realised the mistake and appropriated the full sum.

Decision: -Ct distinguished Middleton, where accused knew of the error as soon as he received the wrong sum. Here, at the only time at which it could be said to be a physical taking, the accused had an innocent state of mind  therefore did not take the money within the ordinary definition of larceny.
-   also distinguished Hudson b/c neither the cheque nor the envelope was intended for Hudson and he took it knowing the taking to be without consent of the victim.
-   Grounds of distinction not convincing don’t go to heart of matter

Illich v R (1987) (High Court) (accidental mistake - overpayment)
Facts: Mutual mistake about amount of money owed to locum vet, paid too much, only realised when arrived home. Appeal dealt with a definition of theft where a fraudulent taking or conversion would qualify as an element of the offence.

Decision: Conviction quashed
The mistaken payment did not prevent property passing to the accused. He did not fraudulently take it nor did he then fraudulently convert it (a person cannot take or convert what is his own).
-English authorities determined that mistake would vitiate consent provided the mistake is of a “sufficiently fundamental type”
-The identity of the transferee or deposit (Middleton (1973)), identity of thing delivered (Ashwell (1885)) or of the quantity delivered (Russel v Smith (1958)) would account for such a mistake.
-There was no such mistake here of a fundamental enough kind that would prevent property passing
-Ct. said this was an attempt to criminalise a dishonest failure to return property in excess of accused’s legal entitlement.

Larceny by a Trick

If the accused obtains possession from the victim by reason of a trick, then larceny has been committed although the owner voluntarily handed over possession. However if the owner intends to hand over ownership to the accused, then larceny is not available but false pretences may be: Ward (1938) 38 SR (NSW) 308, Justelius [1973] 1 NSWLR 471.
Although ostensibly voluntary passing of possession, trick vitiates owner’s consent, so there’s no voluntary passing of possession

Pear’s case - never intended to return horse but given with consent
* Doctrine of larceny by trick
LIMITATION: only applies where owner intended to transfer possession, not ownership, eg.
-    Justelius: wasn’t guilty of larceny by trick because publisher intended ownership (cf possession) of books after 7 days
-    Petronius: no larceny by trick because intended to transfer ownership of car
C    - replaced by ss179- 182 CA: false pretences or wilful false promise
   (larceny by trick not relevant anymore)

S179: whosoever, by any false pretence or by any wilfully false promise… obtains property with intent to defraud liable to 5 years.
S180: causing payment by false pretence etc
S181: false pretence of title
S182: accused may be convicted on a charge of false pretences etc though property obtained partly by false pretence

* Freeman v Sargent: prepared an alleged profit statement (fictitious) to induce others to puchase franchises. Charged and convicted under s179: it was a wilful false promise and false pretences

False pretences: a representation of an existing fact (past/present) which accused knows to be false
-a representation of the existence of a present intention to perform a promise isn’t a representation of an existing fact
-   representation can be words or actions

Wilfull false promise: at time of making promise, promisor has decided not to perform it, doesn’t believe they’re able to perform it, or fulfillment lies outside the power of the promisor
-   promise of acts to be done or facts that will exist in the future

* Balcombe v DeSimoni (1972): D, door-to-door salesman represented to householder that he was student selected to represent youth overseas: she paid for cookbook and got it. There was no misrepresentation as to the nature or quality of the thing to be supplied.
“intention to defraud” required by s179 is merely an intention to deprive another of property: Crown didn’t have to show what D was actually going to do with the money- like beggar who pretends to be blind: still intention to defraud even though $ will be used for purpose he states (food).

Owner
The prosecution can charge a person with stealing property the owner of which is unknown, but there must be proof that the goods are actually stolen and the prosecution must adduce evidence that the owner cannot be ascertained: Ellis v Lawson (1987) 33 A Crim R 69.

3. Anything Capable of being stolen
-   At common law, only moveable, tangible things capable of being stolen.
-   Capable of being taken and carried away
-   Land could not be stolen unless chattel completely detached
-   Common property such as wild animals and game could not be stolen
-   Value and possession important animals in custody, control, or possession of some person may be stolen (Gadd [1911] – property = bees)
-   How do you modernise the definition to incorporate intangible things (shares, wills, credit, rights to land)  regional legislation has specific offences
-   For general larceny, property must be tangible, thus information cannot be object of a general larceny (R v Lloyd [1984])

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4. Fraudulently
-   With false pretences, it is the ‘obtaining of money’ which is more crucial than what the accused does with it afterwards.
-   There is an intent to defraud if a defendant intends to deal with the victim’s property in a manner inconsistent with the details of the representation.

Denning [1962] NSWLR

Facts: Accused received a no. of deposits from people on understanding that he would obtain finance for the building of dwelling houses, provide the land on which they would be built and build them. He was convicted of obtaining money by false pretences and evidence was that the state of his companies was such that he would not have been able to fulfil his commitments.
-accused appealed on grounds that he did not intend to defraud the victims but despite what they thought he would, he intended to use deposits to build a small no. of houses, sell them and use the profit to build more (i.e. furnish them with houses as they asked).

Decision: Whether this scheme would work or not, it was fundamentally different from the scheme he had originally purported. Hence it was a fraudulent misrepresentation.
-   Appeal ct. said statement need not be malicious, mischievous or wilful to rob the victims.
-   Once false statement is made by person with knowledge that it is false, and the victim parts with the money on the strength of this false statement, then the fraud is complete.
-   Ct. claimed the test for intention in false pretences is OBJECTIVE (i.e. would a reasonable man in his circumstances have acted the same way?) but this was based on authorities that have since been rejected.
-   Now, it seems enough to prove a general subjective intent to defraud on part of the accused.

R v Weatherstone (1987) CCA
Ct. held that intention to permantly deprive must be accompanied by som dishonesty or moral obloquy attaching to the property.

R v Ghosh [1982] UK
D obtained money by deception, claimed fees for operations he did not perform.
-   Test for ‘dishonesty’ is: ‘How would the ordinary member of the community assess the accused’s intentions with respect to the “dishonest” transaction?’
-   In addition, court of appeal held; in determining whether someone acted dishonestly, the ct. should take into account whether that person realised subjectively that his actions were dishonest by community standards.
-   If he didn’t, his conduct could not be regarded as ‘dishonest’

R v Feely [1973] (UK authority for NSW b/c pre Theft Act)
Bookmaker borrowed from the float without leaving an IOU, and when caught said it was for his ill father.
-   A community standard for dishonesty was advanced
-   The word “dishonestly” relates to the defendant’s own state of mind
-   It is unnecessary and undesirable for judge to define dishonesty. When considering whether appropriation was dishonest, jurors should “apply the current standards of ordinary decent people”.
-   A conviction for larceny must reveal “moral obloquy” – a conviction would gravely damage a person’s reputation
-   The pre-Theft Act English common law meaning of fraudulently accepted that the expectation or hope of repaying money unlawfully taken was no defence to a charge of acting fraudulently.
-   This is consistent with s. 118 of Crimes Act (NSW), where even an intention, at the time of appropriating the property to the accused’s own use and benefit, to return the goods eventually does not deny the necessary mens rea for larceny

5. Without Claim of Right

-   Not a defence as such, but may negate the mens rea for larceny
Walden v Hensler (1987) (High Court)
-   Aboriginal male charged with keeping protected fauna without being entitled to do so. Felt he was under aboriginal law.
-   Majority (Brennan, Deane, Gaudron) held that a genuine claim of hunting rights no more constitutes a genuine belief by a drug-trafficker of ownership of the drugs in which he deals. Therefore no more than mistake of law & no claim of right.
-   Held that a claim of right protected an accused if he takes or converts property with an intention that is prima facie fraudulent, if he is acting under influence of a belief that he has a right to the property, or to take or convert it.
-   The right need not be one which is recognised only in law. Here conviction quashed because of additional factors such as a claim based on a belief that aboriginal customs were recognised by the law.

Williams [1953]
-   Words ‘without claim of right’ were not limited to the definition of fraudulently
-   Added to separate components of larceny
-   The ‘claim of right made in good faith’ provision is similar to the defence of ‘mistake of fact’  The belief does not need to be reasonable provided that it is honestly held (R v Nundah (1916) 16 SR (NSW))

•   The mens rea for larceny is not present if the accused genuinely believes that he is asserting a lawful claim to something. (Cooper (1914) 31 WN (NSW) 164)
•   It is sufficient if accused believes he is entitled to possession, although he believes in addition that he is not entitled to take and carry away the property or do so by deception (R v Langham (1984) 36 SASR 48)
•   It could be conceived that the claim of right negates dishonesty and therefore fraud is not present. The fact that it is morally rather than legally based may also deny dishonesty.
•   In Lowe (1989) under a charge of dishonest obtaining by deception (s.178BA Crimes Act), it was held that a claim of right should succeed provided the defendant had a belief in the legal right to obtain the property, even if he had no belief in the legal right to practise the deception to get it. (i.e. he knew the way he got it was deceptive)

6. Intention to Permanently Deprive the owner at the time of taking
There must be:
o   permanent deprivation
o   at the time of the taking

s. 118 Crimes Act as divined in Foster (1967) 118 CLR 117 deems the accused to possess an intention to permanently deprive where he intentionally subjects the property to a condition which, irrespective of his expectation, may result in the property never being returned.
o   In Foster it was held that the accused stole money even though he intended to return to the owner the value of the money.
o   The distinction between money as an object and as a denominator of value is emphasised here.

Garlett (1989) (steal taxi)
o   Requirement of permanent deprivation sometimes beyond situations of borrowing possession which may not come within theft and are sometimes covered by the provision of specific offences (such as ‘unlawful use of a motor vehicle’).
o   S.154A of Crimes Act  anyone who takes a ‘conveyance’ (car, boat, bike…) without the owner’s consent is deemed to be guilty of larceny
o   Intention might have been to take the taxi temporarily in order to steal any money it contained. This still satisfies requirement of permanent deprivation.

Lloyd [1985] (pirate videos)
Facts: A projectionist took films to be shown at a cinema without the knowledge or consent of his employer, to give them to another for the purpose of making pirate videos. The films were then returned undamaged

Decision: After noting the difficulties associated with its interpretation, it was held that the provision did not apply to this situation. Such a temporary removal would not amount to theft because:
“the goodness, the virtue and the practical value of the films to the owner has not gone out of the article (by virtue of unauthorised borrowing). The films could still be projected to paying audiences…”
-   Court didn’t take into account as an outright taking or disposal that ultimate owners had commercial interests damaged.
-   ‘mere borrowing is never enough to constitute the necessary guilty mind unless the intention is to return the thing in such a state that all its goodness and value are gone’
R v Beecham (1851)
Facts: accused took railway tickets intending that they should be returned to the railway board only after the journeys had been completed.

Decision: The ‘borrowing’ here is for a period and in circumstances equivalent to an outright taking or disposal because if and when the tickets are returned as intended, all their goodness and value is gone.

Larceny by a Bailee
-   s125 of Crimes Act 1900 creates the offence of larceny by a bailee.
-   Central conduct is fraudulently taking and converting goods to one’s own use, or the use of another, beyond the terms of the bailment.
-   Conversion involves dealing with goods in manner inconsistent with rights of true owner with the intention to deny the owner’s rights (or assert rights inconsistent with those of the owner).
-   Fraud may be proved through establishing dishonesty.

Where money is alleged to have been stolen by a bailee, there cannot be a conviction of larceny as a bailee unless the bailment is in relation to the actual notes and coins: Ward (1938) 38 SR (NSW) 308