#9402 - Property Offences - Principles of Criminal Law

Exam The Principles of Criminal Law Notes PROPERTY OFFENCES SEMESTER ONE | 41 Notes The Principles of Criminal Law Stealing Criminal Code 1899: s391 Definition of stealing (1) A person who fraudulently takes anything capable of being stolen, or fraudulently converts to the person's own use or to the use of any other person anything capable of being stolen, is said to steal that thing (2) A person who takes or converts anything capable of being stolen is deemed to do so fraudulently if the person does so with any of the following intents, that is to say--- (a) an intent to permanently deprive the owner of the thing of it; (b) an intent to permanently deprive any person who has any special property in the thing of such property; (c) an intent to use the thing as a pledge or security; (d) an intent to part with it on a condition as to its return which the person taking or converting it may be unable to perform; (e) an intent to deal with it in such a manner that it can not be returned in the condition in which it was at the time of the taking or conversion; (f) in the case of money---an intent to use it at the will of the person who takes or converts it, although the person may intend to afterwards repay the amount to the owner. (2AA) In this section--- special property includes any charge or lien upon the thing in question, and any right arising from or dependent upon holding possession of the thing in question, whether by the person entitled to such right or by some other person for the other person's benefit. (2A) A person who has taken possession of anything capable of being stolen in such circumstances that the thing thereupon is not identifiable is deemed to have taken or converted the thing fraudulently notwithstanding that the property in the thing has passed to the person if, at the time the person transports the thing away, the person has not discharged or made arrangements with the owner or previous owner of the thing for discharging the person's indebtedness in respect of the thing. (2B) The presumption provided for by subsection (2A) is rebuttable (3) The taking or conversion may be fraudulent, although it is effected without secrecy or attempt at concealment. 42 | Exam The Principles of Criminal Law Notes (4) In the case of conversion, it is immaterial whether the thing converted is taken for the purpose of conversion, or whether it is at the time of the conversion in the possession of the person who converts it. (4A) It is also immaterial that the person who converts the property is the holder of a power of attorney for the disposition of it, or is otherwise authorised to dispose of the property. (5) When a thing converted has been lost by the owner and found by the person who converts it, the conversion is not deemed to be fraudulent if at the time of the conversion the person taking or converting the thing does not know who is the owner, and believes, on reasonable grounds, that the owner can not be discovered. (6) The act of stealing is not complete until the person taking or converting the thing actually moves it or otherwise actually deals with it by some physical act. (7) In this section--- owner includes the owner, any part owner, or any person having possession or control of, or a special property in, the thing in question. s398 Punishment of stealing Any person who steals anything capable of being stolen is guilty of a crime, and is liable, if no other punishment is provided, to imprisonment for 5 years. * * The time at which fraudulent intent must be established is the time of the taking or conversion Different and distinguishable from fraud Criminal Code 1899: s390 Things capable of being stolen Anything that is the property of any person is capable of being stolen if it is--- (a) moveable; or (b) capable of being made moveable, even if it is made moveable in order to steal it. * s1 contains definitions regarding what property includes SEMESTER ONE | 43 Notes The Principles of Criminal Law Criminal Code 1899: s566 Particular indictments (property owned by multiple persons) (15) In an indictment for an offence respecting any property (whether within the meaning of section 1 or section 408C), if it is uncertain to which of 2 or more persons the property belonged at the time when the offence was committed, the property may be described as being the property of one or other of such persons, naming each of them, but without specifying which of them; and the indictment will be sustained, so far as regards the allegation of ownership, upon proof that at the time when the offence was committed the property belonged to one or other of such persons without ascertaining which of them. Must be capable of being stolen Must be the property of a person * * Conversion v Taking If it is converted rather than taken, is it still stolen? * Mojunen's Case * * * * Money withdrawn from an ATM - given it or are you taking? Withdrew $200 but was given $300 taking = theft given it = fraud Cannot be treated as if the ATM was a person so therefore the money cannot be given and using the machine was taking the money Appellant was convicted of stealing Conversion is not defined within the Criminal Code and therefore we must look to the common law * Lancashire and Yorkshire Railway v McNicholl * * 44 | Aitkin J: it appears to be plain that dealing with goods inconsistently to the right of the true owner amounts to a conversion provided that it is also established that there is an intention on the part of the defendant in so doing to deny the owners right but to assert a right that is inconsistent with the owners right. Intention is proved if the defendant has taken or used the goods as his own. Approved in Caxton Exam The Principles of Criminal Law Notes What happens if property has passed? * Illich's Case * * * * * * * * * * Accused was a stand-in vet working for a man named Brighton was away When he returned, he was not happy about how he ran the business and sacked him He was given a package to sign for and was told not to look inside until he got home There was extra money in the package and the excess was stored in his car Accused claimed that he didn't mean to take it but was waiting for Brighton to call so he has the upper hand If the property is passed, the receiver cannot be guilty of stealing it Mistake on the behalf of the transferor may mean that it has not been converted Accused argued that Brighton, not understanding his mistake, allowed the money to pass to him HELD: The money didn't belong to another and therefore was not stealing Issue of whether the property in the money had really passed to the accused High Court held that there were 3 kinds of fundamental mistake Mistake of identity of the transferee Mistake of the identity of the thing Mistake of the quantity of the thing given SS? EXCEPTION: money, as it is a medium of exchange Any cases where the mistake is not fundamental, the thing has been converted SS? Illich had a fundamental mistake as it related to the quantity of the money passed SS? No taking or conversion when the accused realised Brighton's mistake Gibbs GJ: To constitute conversion, it is necessary for the accused to act in such a way that is inconsistent with the true owner. It is not necessary that the property should, at the time of the conversion, be in possession of the person who converts it. In his opinion, the accused should have acted with any intention other than those with he right of the real owner. A person converts property if he deals with it in a way that is inconsistent with that of the true owner. s391-393: money and conversion s391 (2A): raises rebuttable presumption with onus on the accused SEMESTER ONE | 45 Notes The Principles of Criminal Law Borrowed items beyond their due date? * * * * Conversion? "acting in a way contrary to the right of the owner Conversion requires a positive act - eg: selling the item for a profit/benefit IS NOT CONVERSION, NO MATTER HOW LONG YOU KEEP THE ITEM Can you steal something that has apparently been lost? o Yes under s391 (2B (5)) * Dolby v Stanton * * * * * * * Property was a torch belonging to the Commissioner of Police with the words 'Townsville Traffic Branch' engraved on it The appellant was a pawn broker and operated a pawn brokerage as well as a second hand store Constable Chandler visited the premises and overheard a conversation between customers in the store about a torch and heard them say "it has Townsville Traffic Branch printed on it" At the time he noticed the torch in one of their hand, and the appellant walked over and said "it's mine! it's not for sale" and walked into the back room of the store. The Constable went to the front counter and saw the torch. The appellant and the Constable then had a conversation - the appellant had the torch for 6 months and "found it in his car." When asked reasonably how it got there, he said he didn't know - the car was open and it rolled forward. When asked if he tried to return it, he said, "no, it was a good torch." Evidence was given to say that the torch was not present at an audit of the Traffic Branch Held: The torch had been converted because he did not take reasonable steps to find the true owner/hand it in to the Traffic Branch. s391 (6) - "must actually move or deal with the thing by some physical act." Johnson's Case * * Found guilty of breaking, entering and stealing Appeal, argued because the accused had warned the stealer after he moved the goods that someone was coming, he cannot be accused of stealing because it had already taken place. Doctrine of Recent Possession * * * 46 | Common law doctrine that applies to theft offences Specifically in cases where no explanation is given as to how the defendant got the property Necessary to prove the identity of the goods per Sharma and Moody's Case