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Property Offence Notes

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5. Property Offences Definition of Larceny Larceny is committed by a person 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 the time of such taking, permanently to deprive the owner thereof... Larceny at common law requires a trespass -- it is sometimes described as an offence against possession -- a person lawfully in possession of something cannot be guilty of larceny of it: Ilich (1987) Actus Reus

1. The accused, being a married man, and a divorced woman formed an association.

2. On his proposal they agreed to live on the wages of one, banking the wages of the other.

3. They opened a joint banking account with authority in each to operate on it.

4. The woman's salary cheques and some of her maintenance cheques were paid into it.

5. The deposits were usually made by the accused, who retained possession of the bank book.

6. Withdrawals were made from the account, but never, according to the woman, with her knowledge or particular authority.

7. The subject of the charges of larceny was money withdrawn from the account by the accused and deposited in bank accounts in his own name.

8. The woman claimed that she did not authorise the transactions and was unaware of them until some time later.

9. On appeal by the accused. Held, Appeal allowed, conviction quashed.

1. The defendant were convicted of housebreaking with intent to steal and assault with intent to rob when they broke into a house in the mistaken belief that it contained cannabis.

2. They appealed on the basis that it was not possible to steal property from a person who had it unlawfully in their possession. Held, the defendant can be convicted for stealing prohibited drugs from another person.

There is property capable of being stolen (i.e., tangible personal property).

• Some fixtures can be stolen: s 139, 140 Crimes Act 1900 (NSW)

• Property must be tangible, therefore, chosen in action cannot be stolen: Croton (1967)

• Animals

• At common law, wild animals cannot be an object of larceny unless someone else has previously assumed possession of them either through capturing or killing them: Blade v Higgs (1865)

• s 126-131 Crimes Act 1900: stealing cattle amounts to larceny.

• "Cattle" is defined in s 4, including any horse, mare, gelding, colt, foal, filly, ass, mule, bull, cow, ox, steer, heifer, calf, ram, ewe, sheep, lamb, pig, goat, deer, alpaca, llama, vicuna, camel, or dromedary, and every hybrid or cross thereof.

• s 132-133, 502-512 contains specific provisions prohibiting the stealing of dogs, animals or birds ordinarily kept in confinement and fish in private waters or ponds. That property is in the possession of a person other than the defendant.

• A man can be guilty of larceny by stealing a thing from another who unlawfully possesses the thing: Anic, Stylianou and Suleyman (1993) The property is taken and carried away by the defendant (asportation).

• Any movement of goods with an intent to steal them is sufficient to constitute an asportation, no matter how slight: Wallis v Lane [1964]
The taking is done without the consent of the possessor (relevance of mistake).

• Lack of positive intention to pass the possession to the defendant: Middleton (1873)

• Computer cannot consent: Kennison v Daire (1986)

• Mistake can negate consent:

• Mistake as to identity of transferee: Middleton (1873)

• Mistake as to the type of the property handed over: Ashwell (1885)

• Mistake as to the quantity of the property: Russell v Smith

• There is an exception re money: full property rights to money pass with possession. Croton (1967) 117 CLR 326 The subject matter of the instant charges was money, in each case expressed as a number of dollars, that is, paper money, or coin to the stated face value. That can be asported and be the subject of larceny. But, though 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. That recovery will be effected by an action for debt. But the money deposited becomes an asset of the bank which may use it as it pleases: see generally Nussbaum, Money in the Law: s. 8, p. 103. Neither the balance standing to the credit of the joint account in this case, nor any part of it, as it constituted no more than a chose in action in contradistinction to a chose in possession, was susceptible of larceny, though it might be the subject of misappropriation Anic, Stylianou and Suleyman (1993) 61 SASR 223 1

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