LLB180 Lecture Notes - Lecture 3: Cash Register, Lesser Included Offense, Nsw Law Reports
Week 3 – Dishonest Acquisition
Changing ideas of what dishonest acquisition offences should protect
Use and public order
• Larceny not originally concerned with vindicating the rights of any owner
• Ensuring the person who had possession could continue to use that property
without fear of someone taking it
Property
• Development of mercantilist then capitalist society → started with larceny then
Parliament used the criminal law to protect private property and force social change
Wealth
• Fraud and forgery offences introduced
• Behaviour relating to monetary values
Property and the civil law
• Private property and wealth not protected solely by criminal law
• Tort, equity, contract
• Criminal law – punish the offender instead of just compensating the victim
Technology and crime (CB 960)
• More innovative criminal activities
• Thieves can steal small amounts from a large number of victims
The role of private justice
• Low reporting rate in businesses
• Theft and fraud
• Only 60% of businesses who had been the victim of major fraud reported it → five
surveys between 2002 and 2012
• 2012 → dropped to 46%
• being dealt with in private means
Dishonest acquisition offences
• Larceny
• Statutory larceny offences (embezzlement, larceny by bailee)
• Robbery (aggravated larceny)
• Fraud e.g. dishonestly obtaining property of another, or financial advantage through
• Others: break and enter, receiving stolen property, goods in custody
Possessorial immunity
• Consensually giving possession of something to someone initially conferred
immunity under the common law even if the person appropriated it dishonestly
• Even where transfer of possession was induced by deception, it was still consensual
• Role of torts to deal with these situations
• Now modified by legislation
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Larceny
• Simple is a common law offence
• Crimes Act s 117 provides penalty but not elements → common law
• Crimes Act s 125 creates a separate offence of larceny as a bailee to overcome some
requirements of the common law e.g. consent
Illich (CB 965):
Larceny is committed by a person who, without the consent of the owner, fraudulently and
without 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
Actus Reus:
1. Property capable of being stolen
- Must be chattels – tangible and moveable
- Not land – at e take ad aied aa
- Not fixtures (things that are attached to the land e.g. houses, growing out of the
land or minerals and soil) (legislative offences in Crimes Act 1900 (NSW), e.g. ss
139, 140)
- Not wild animals (legislative offences in Crimes Act 1900 (NSW) e.g. ss 126-133,
re stealing farm animals, domestic animals etc.)
- Needs to be tangible - ot possile to steal a hose i atio i.e. debt), but is
o possile to steal aluale seuities s , o gas, o eletiit
- See Croton (CB 971)
2. That is in the possession of someone other than the defendant
- Possessio = phsiall i Xs otol at a time & intending to maintain control
- Irrelevant that X had illegal possession (Anic, Stylianou and Suleyman (p 972) -
larceny re drugs unlawfully possessed)
- Unlawful possession no defence to larceny
3. Takig ad aig it aa aspotatio
- The only AR element which is an ACT (other 3 are circumstances)
- Must occur in the circumstances where the property is larcenable, the property
belongs to another and taking is without consent (Brenna Js aalsis of A‘ i
HKT)
- Asportation: physical removal - slightest movement sufficient (Wallis v Lane) (p
974)
- Must be positive act by D, not intention or omission (Potisk CB 974)
117 Punishment for Larceny
Whosoever commits larceny, or any indictable offence by this Act made punishable like larceny, shall, except in
the cases hereinafter otherwise provided for, be liable to imprisonment for five years
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4. Without the consent of the person who was in the possession
- General rule: property taken against the will of the possessor → where there is
consent to the taking there is no larceny
- ATM aot gie oset o ehalf of ak: The ahie ould ot gie the
aks oset i fat ad thee is o piiple of la that euies it to be
teated as though it ee a peso ith authoit to deide ad oset.
Kennison v Daire (p 975)
- If there is temporary possession based on an implied licence, then in dealing with
that property in breach of licence asportation will have occurred: see Kolosque v
Miyazaki (p 976)
Croton (1967) 117 CLR 326
Croton became engaged to Webster. They opened a joint bank account with authority for
each to operate the account individually. Most of the money deposited was from Webster
and they lived on Cotos age. Coto had otol of the deposit ook. Without Westes
knowledge he withdrew all of the money from the joint account and deposited it into his
own account. He was charged with larceny of the money
• Larceny is taking and carrying away the personal goods of another without consent
• Barwick CJ held that the elements of larceny were not met as:
1. The tasfeee of the oe as oluta o the pat of the ak; it ast
taking the money out of the possession of the bank against its will
2. The mone ast take out of the possessio of Weste as she didt hold
possession of it, the bank was the agent
3. The money was in the bank immediately before being handed over to Croton and
not Webster
4. Evidence of the arrangement between the parties
Unlawful possession of property – Anic, Stylianou and Suleyman (1993) 61 SASR 223
The defendants were convicted of burglary with intent to steal and assault with intent to
rob when they broke into a house under the mistaken belief that it contained cannabis
They appealed o the asis that it ast possile to steal fo a peso ho ulafull
had it in their possession
• Despite the fact that she had no right in law to have those things, she did have
possession of them, they were tangible property
• She had some proprietary rights in the drugs of which she had possession
Wallis v Lane [1964] VR 293
Defendant was employed as a delivery man and was making deliveries to one of his
eploes liets. Oe of the oes as daaged ad opeed. The defedat oed to
pairs of toe clips (the contents of the box) from the box and left them hidden on the tray of
the truck while he delivered the rest of the boxes to the customer. The defendant was
apprehended while completing the delivery
• Any movement with intent to steal is sufficient to constitute an asportation (Herring
CJ)
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