Larceny In General

Question 1

Larceny definition @ Common Law - cite caselaw

Answer 1

Ilich v The Queen defines “larceny” as stealing:

• without the consent of the owner;
• fraudulently (dishonestly);
• without a claim of right made in good faith;
• taking (trespassing) and carrying away (asportation);
• anything capable of being stolen;
• with intent at the time of such taking;
• permanently to deprive the owner thereof.

“A person steals who, without consent of the winner, fraudulently and without a claim of right made in good faith, take and carries away anything capable of being stolen, with intent, at the time of such taking, permanently to deprive the owner thereof”.

Question 2

What are the Proofs of Larceny and how many are there?

Answer 2

There are 8.

1. Property charged must be the subject of larceny at common law
2. Property belongs to another
3. Taking (trespass) of the property
4. Carried away (asportation)
5. Taking without consent
6. Taking with intent - permanently deprive
7. Taking without claim of right
8. Taking was dishonest

• Learning hint: Property/Property 1 x Taking carried 4 x taking

Question 3

What four conditions are required for goods to be the subject of larceny at Common law?

Answer 3

1. Personal. - (moveable property) - asportation
2. Tangbile - must have physical substance - can be taken hold of (for example: notes and coins).
3. Of some value - (financial)
4. Of the description charged

Question 4

In relation to Larceny, goods must be Personal property. Is real property personal property?

Answer 4

• Real property is not moveable, therefore not subject to larceny.
• Land or property permanently attached to the land cannot be stolen at common law.
  To address this issue legislation was introduced (s139)

Question 5

Can personal property which has been severed be stolen by the person who severed it (for example a tree in the yard of another person).

Answer 5

The common law has stated that property which has been severed cannot be stolen by the person who severed the property, unless that person thereafter abandoned the property (thereby relinquishing possession).

Question 6

What did Billing v Pill [1953] find in relation to stealing a hut from realty and was it stealing?

Answer 6

Facts: without authority a man had his servants demolish a hut. Without abandoning possession he took seven sections away and re-erected the hut on his own land. The hut in question had rested on a concrete foundation and the floor was secured to the concrete by bolts. The hut was originally built as a shelter for soldiers and was of a temporary nature. Upon being charged with stealing, it was argued that the offender was not guilty of larceny, as the hut was not capable of being stolen, it was attached to or formed part of the realty… and although severed, he had not abandoned possession of it prior to removing it from the site.

Question 7

In relation to Larceny, what does Section 139 of the Crimes Act remedy?

Answer 7

139 Stealing etc metal, glass, wood etc fixed to house or land

Whosoever steals, or rips, cuts, severs, or breaks with intent to steal, any glass, or woodwork, belonging to any building, or any metal, or any utensil, or fixture, whether made of metal or other material, or of both respectively, fixed in, or to, any building, or anything made of metal, fixed in any land being private property, or used as a fence to any dwelling-house, garden, or area, or being in any square, or street, or in, or on, any place dedicated to public use or ornament, or in any burial-ground, shall be liable to be punished as for larceny.

Question 7

In relation to larceny, what does Section 513-521A of the Crimes Act relate to?

Answer 7

Stealing of shrubs, trees, wood etc

Question 8

Can money be the subject of larceny?

Answer 8

Property the subject of larceny must be tangible property. Money is able to be the subject of larceny, however it must be particularised and must be either notes or coins . For example: $200 can be stolen if it is particularised into 4 x $50 notes or 10 x $20 notes. It can’t be “stolen” electronically - that is fraud rather than larceny. The property subject of larceny must be either the plastic polymer notes or metal discs.

Question 9

For something to be the subject of larceny, the goods must have some value. Explain.

Answer 9

• must have some value to the owner
• value must be an actual economic value and not sentimental of artistic value
• need not necessarily be of the value of any known coin or even “the hundredth part of a farthing”

Question 11

Explain “Of the description charged”?

Answer 11

It is necessary for the prosecution to prove that the property alleged in the information is of the same class of property disclosed by the evidence.

Question 12

Can lost property be stolen? Who is the owner? Cite caselaw in relation to lost property/larceny.

Answer 12

R v MacDonald [1983] (camera case)

“The finder’s belief, in our view, is to be inferred from the facts and circumstances surrounding the finding and the taking of the goods, and in this respect regard may be had not only to what the finder does in relation to the goods but also what he does not do that might reasonably be regarded as consistent with the actions of an honest man finding goods”. “The jury could infer that an honest man picking up these things would understand that they were not abandoned and were of value, and that inquiries would probably be made through the ‘lost and found’ advertisement columns of the daily newspapers, and he would search for such an advertisement, and he would unequivocally admit that he found the articles. On the other hand, a man’s felonious intention might be inferred through his not searching for advertisements, his keeping the goods for so long a time that notice of their loss would probably have been forgotten - that is temporarily secreting them - and then telling contradictory stories how he came by the goods”.

Question 13

Property belongs to another

Answer 13

Offence against one of three things: possession, control and ownership. You can steal something that

Question 14

Is property with an unknown owner the subject of larceny? Cite caselaw.

Answer 14

Ellis v Lawson (1987)

It is necessary if one is to lay the ownership in an unknown person, to prove that in fact the identity of the person is unknown….. In my view the statement of Harris J [in Anglim and Cook v Thomas [1974]]
“If the property is alleged to be the property of persons unknown, then the evidence must show that the Crown is unable to ascertain who was the owner of the goods” is, with due respect, a correct statement of the law.

Question 15

In relation to ownership of lost property which is the subject of larceny, cite the legislation

Answer 15

R v MacDonald [1983]

The jury could infer that an honest man picking up these things would understand that they were not abandoned and were of value, and that enquiries

Question 16

Can something be the subject of larceny if the ownership is unlawful to begin with? (ie: a person stealing another person’s illicit drugs). Cite caselaw.

Answer 16

R v Anic

“Despite the fact that she had no right in law to have these supposed drugs, Mrs Hollis did have possession of them. The drugs were tangible personal property having some value… I do not think that the law sees no offence in the taking of drugs, illegally held by one person, by another who intends to permanently deprive the one of those drugs”.

Question 17

What is the test for abandonment?

Answer 17

The question of abandonment relies on the person who left the property behind - if the person left the property behind with intent to control such property, the person has not relinquished his possession and therefore has not abandoned the property.

Abandonment occurs when the owner is indifferent to any future asportation of the property - where the owner leaves it for ANYBODY to take it away.

Question 18

Can lost property be stolen?

Answer 18

Lost property is capable of being stolen, if, at the time of finding, there is an owner other than the finder - regard to the state of mind of the finder - whether to keep it or return it.

Question 19

What is “trespass” in the context of larceny?

Answer 19

Trespass is the unlawful laying of hands upon property - without lawful justification - committing the act of direct physical interference with property in the possession of another.

Question 20

What did R v Leigh establish in relation to trespass/larceny?

Answer 20

R v Leigh established that an act which involves lawful trespass over property but with later conversion (decision to permanently deprive) (that is the intent was not there are the time of taking but changed later) is not larceny but fraudulent appropriation under Section 124.

Question 21

What did R v Riley find in relation to trespass/larceny?

Answer 21

R v Riley found that an act of mistaken trespass upon property, where the person was unaware initially that it was a trespass, coupled with a later realisation and failure to return that property (doctrine of continuing trespass) constitutes a larceny.

Question 22

In relation to “Property that belongs to another” larceny must be an offence against which 3 things?

Answer 22

1. Possession
2. Control
3. Ownership

Question 23

What did Bernhardt find in relation to the test for “Claim of Right”

Answer 23

Bernhardt held that a “claim of right” must be a belief of legal entitlement (not moral) and must be a genuine/honestly held belief - the belief does not have to be reasonable but more than a coloured pretence.

Question 24

Cite the caselaw in relation to Claim of Right

Answer 24

R v Fuge

R v Fuge involves a defendant having the belief that they were legally entitled to take property of another of equal value of their own - successfully argued a claim of right.

Question 25

Cite the caselaw which is the test for the finder of abandoned property?

Answer 25

Donoghue v Coombe.

“..whether they were able to ascertain the original owner of abandoned property by making reasonable attempts”.

Question 26

Proofs 6, 7 and 8 of larceny are in relation to taking and fraudulent intent. Explain what fraudulent intent is.

Answer 26

• . The taking of the property must be done fraudulently and without a claim of right with an intent to permanently deprive the owner.
• . In relation to “permanently deprive”, it need not be done for personal gain, only to deprive the owner.
• . A claim of right must be a legal claim of right, not a moral claim of right.
• . Fraudulently - “dishonestly”

Question 27

What is larceny?

Answer 27

Larceny is a common law offence against possession, control or ownership.

Question 28

Where is the punishment for the offence of larceny found?

Answer 28

Section 117 of the Crimes Act - Imprisonment for 5 years.

Question 29

What determines the offence of larceny and which larceny offence is committed?

Answer 29

How the property is taken and the intention of the ‘taker’ determines what offence is committed.

Question 30

Can lost property be stolen? (steal by find)

Answer 30

Yes if the property was capable of being stolen at the time of finding

Question 31

Can abandoned property be stolen?

Answer 31

Abandoned property cannot be stolen - at the time of the taking there is no owner.

Question 32

For property to be stolen, it must be without consent of the owner. What 3 circumstances are an exception to this principle?

Answer 32

(i) . Intimidation (threats and intimidation vitiates consent)
(ii) Trick (owner hands over the goods due to a trick/scam)
(iii) Mistake (Caselaw Raymond John Ilich) - the mistake must be one of a fundamental kind.

Question 32

Cite caselaw in relation to handing consent to a person to take certain goods (an exception to consent of an owner in a larceny offence) by way of “mistake”.

Answer 32

Caselaw is R v Raymond John Ilich - the mistake must be one of a fundamental kind.

“A mistake will be of that kind if it is as to the identity of the transferee or as to the identity of the thing delivered or as to the quantity of the thing delivered”.