1
LAW EXTENSION COMMITTEE
CRIMINAL LAW AND PROCEDURE
LECTURE 2 OUTLINE
PROPERTY OFFENCES: LARCENY (Colloquially known as “Stealing”).
History of the Development of the Offence
Larceny developed by the common law to protect the property of landowners. By
middle of 19th century, had developed to apply to wide range of property. However,
larceny was a “trespass against possession” in the sense of an unlawful interference
with the legal rights of the lawful possessor of property. The emphasis was on
physical property (i.e. property of some value that could be moved).
Protection of property was inimicable to the political system. Judges who made the
common law were also landowners. Members of jury were also property owners.
In England, “simple larceny” was distinguished from “grand larceny” where the value
of the property was worth more than one shilling. Grand larceny carried the death
penalty. Courts developed elaborate technical distinctions and defences to larceny to
avoid having to impose the death penalty.
Due to the technical distinctions, common law (and statute in NSW) developed a
“patchwork quilt” of other offences. For example:

Larceny by a bailee (Section 125 of the Crimes Act)

Stealing cattle or killing cattle with intent to steal (Section 126)

Stealing dogs (Section 132)

Stealing metal, glass, wood etc fixed to house or land (Section 139)

Stealing from ship in distress or wrecked (Section 153)

Embezzlement (Sections 155 to 163)
The offences relating to obtaining by false pretences (the former Section 179 of
Crimes Act) were created to overcome the problem that larceny was a crime against
possession, and that if the property was passed by consent, there was no larceny, even
if the person obtaining the property had acted fraudulently to gain consent .
2
On 22 February 2010, the obtaining by false pretences and forgery offences were
replaced by new statutory provisions. In respect of the former ‘obtaining by false
pretences’, the major offence is fraud (Section 192E Crimes Act).
Movement of objective criminality in larceny to subjective criminality (G.P. Fletcher,
“The Metamorphosis of Larceny” (1976) 89(3) Harvard Law Review 496
Codification of Property Offences
Theft Act (1968) UK abolished common law larceny and replaced it with a
comprehensive code dealing with property offences. Similar legislation was adopted
in Victoria in 1974; the ACT in 1985; and South Australia in 2002.
In 1995, Model Criminal Code Committee recommended all Australian states adopt
the Theft Act model, and replace over 150 offences dealing with fraud, theft and
larceny with a code of 20 offences.
Penalties for Larceny
Section 117. Up to 5 years imprisonment. However:
If dealt with summarily, and property less than $5,000.00, maximum penalty is 12
months imprisonment and/or 50 penalty units ($5,500.00).
Basic Larceny
Definition
Section 117 of Crimes Act. Definition of elements of larceny derive from the
common law. Elements are:
i.
Property capable of being stolen;
ii.
Without consent of lawful possessor (usually owner) of the property;
iii.
Taken and carried away (Asportation/Appropriation);
iv.
Dishonestly, without honest belief of claim of right;
v.
Intention to permanently deprive at time of taking.
Actus Reus
Types of Property Which Are Capable of Being Stolen
Physical property that has some value.
3

Corpses. Kelly (1998)

Illegal Property Anic (1993)
Types of Property Which Cannot be Stolen

Money in Joint Account Croton (1967)
Without Consent

No consent to person hiding items of clothing and taking them to another part
of a department store. Kolosque v Miyazaki (1995)

No consent to person using an ‘off line’ ATM to withdraw money from an
account that had been closed. Kennison v Daire (1986)
Appropriation/Asportation

Switching price labels in supermarket Morris (1983)

Moving items from one part of a store to another with intention to permanently
deprive Kolosque v Miyazaki (1995)

Moving items from one part of the employers truck to another Wallis v Lane
(1964)
Mens Rea
Intention to Deprive Owner Permanently

Keeping a wallet. When does the criminal intention arise? Mingall v
McCammon (1970)

Section 118 . Does it remove intention to permanently deprive? No. Must be
an intention by the taker to use the property as his or her own, or exercise
ownership of the property, even for a short period of time. Foster (1967)

Intention to return property after using the property, or replace property, is not
a Defence Cockburn (1968)
4
Dishonesty or Fraudulence

Peters (1998)- Toohey and Gaudron. What is ‘dishonesty” depends upon
context used in the offence. If ‘dishonest’ is used in the “special sense”, trial
judge must explain the types of belief sufficient to be “dishonest” in the
context of the offence. In such a context, “dishonesty” is to be determined by
the application of the standards of ordinary decent people. Also applied in
Macleod (2003);
However, on 22 February 2010, Section 4B introduced into Crimes Act, which
defines test of “dishonesty” as:
“...dishonest according to the standards of ordinary people and known by the
defendant to be dishonest according to the standards of ordinary people.”

Honest belief in a claim of right negates the mens rea: Lopatta (1983).

However, there are significant limitations on whether the defendant honestly
believes he or she has a claim of right over the property (or the same monetary
value as the property in question): Fuge (2001)
Contemproraneity of Mens Rea

Doctrine of continuing trespass Riley (1853). If there has been a trespass
against possession, the trespass continues until the defendant forms an
intention to permanently deprive.
However, in ‘larceny by finding’ cases, the principle of Thurbon (1848) is that there is
no dishonesty if, at the time of the taking, the defendant honestly believes the true
owner of the property can’t be found; or honestly believes the property has been
abandoned.

Doctrine of continuing trespass distinguished in Mingall v McCammon (1970)
by consideration of how it interacts with the principle in Thurbon. Bray C.J.
held that principle in Thurbon is an exception to the principle of continuing
trespass in Riley.
Some Categories of Larceny, other than ‘Simple’ Larceny

Larceny by Mistake (i.e. property handed over by mistake);

Larceny by Finding (i.e. property found by taker, and taker decides to keep the
property)

Larceny by Trick (i.e. property handed over by ‘consent’, but the ‘consent’
was obtained by deception).
5
Larceny by Mistake

Type of mistake. Unilateral or mutual?

Bray CJ of South Australian Supreme Court in Potsik (1973). A mistake only
vitiates (removes) consent if it is a “fundamental mistake”

High Court in Illich (1987)-Concept of “fundamental mistake” which negates
consent. 3 types of fundamental mistake:
1. Identity of the transferee
2. Identity of the thing delivered.
3. Quantity of the thing delivered (with the exception of money, where it is presumed
that the person transferring money intended both ownership and possession to pass).