Must be tangible, moveable property (capable of being carried away)
NOT real property or choses in action (Croton)
You won't be guilty of larceny (in common law) if you steal real property, or fixtures or other interests such
as treasures in action that might include your bank account balance (Croton)
1. The relevant property is capable of being stolen
Other than land itself, things that are attached to the land, such as trees, letterboxes (described as fixtures),
things growing out of the land (such as trees and corps), and things forming part of the land such as minerals
and soil cannot be stolen and carries away (see, eg, Billing v Pill [1954] 1 QB 70)
As such, it's not larceny to steal a watch, but not a land, or a tree (these are not movable!),
or (stealing online) bank credit (these are not tangible)
The criminal law added number of provisions extending larceny to the removal of things attached to land.
See ss 139 and 140, also ss 513-521A of Crimes Act)
For provisions concerning animals, see ss 126-133, 502-512)
Gas can be stolen (White (1853) Dears 203)
The criminal law added number of provisions extending larceny to the removal of things attached to land.
See ss 139 and 140, also ss 513-521A of Crimes Act)
This means, you don't need to e.g. hold it (actual possession) and then someone takes it from you.
For provisions concerning animals, see ss 126-133, 502-512)
Gas can be stolen (White (1853) Dears 203)
possession that is held by the employee or servant within the terms of their employment or servitude is
Constructive possession will suffice: see eg Hibbert v McKiernan considered to be constructively in the possession of the employer or master (see, eg, Williams v Phillips (1957)
2. That property belongs to another 41 Cr App R 5).
When property is found in someone’s house?
Therefore, if a property is left on someone’s enclosed land, even if the owner of the land is unaware of it, that is
As such, if you hold a property in your hand, or have it in your backpack, or it's somewhere in your backyard constructive possession and if someone takes it can be guilty of larceny (see eg, Hibbert v McKiernan)
and you are not even aware of it, these all can be larceny.
AR
Stupid as it may sound, if one thief steal from another thief, that person can be guilty of larceny (Bollen J in Anic
refers “Kennys Outlies of Criminal Law (1966) by Mr JWC Turnder (at p 267, paragraph 227)”
Larceny by clerk or servant is covered by statutory provision in s 156 of Crimes Act
The defendant must take the property, which involves moving the property - ‘asportation’
Must be positive act, not just intention (Potisk) If the cashier hand the D too much change, even if the D has it
in their mind to not say anything and take it away, that is not enough, they should actually ‘move’ and show it as
a positive action (Potisk)
3. D takes and carries away the property
(Asportation)
“any movement of the goods with intent to steal them is sufficient to constitute an asportation”: Wallis v Lane
(minimal requirement for this element, meaning only moving it a bit is enough)
As such, not essential to prove that the thief successfully ran away with the property, in face even the slightest
movement of the property will do, but there must be some kind of positive act that is more than just an
intention.
The taking of the property must be done with the absence of the owner/possessor’s consent (Middleton:
Kennison v Daire).
4. The taking is done without the consent of the The caselaw makes it clear that it’s not essential to show the owner said that they were actively protesting the
possessor/owner taking, instead the focus is on the absence of contest.
So if someone gives a property to D (courier or borrower), that can’t be larceny, even if at the time of passing
the D had it in their mind to take it away, or if they made that decision later.
Larceny
117 PUNISHMENT FOR LARCENY: “If the intention were not to take the entire dominion over the property, that is no larceny” (Holloway)
Whosoever commits larceny ... [shall] be
liable to imprisonment for five years. (since
the statute doesn't indicate the MR and AR
we should refer to Common law)
Temporary appropriation (ie borrowing without consent) is not larceny.
1. D has an intention to permanently deprive the The borrowing would not cease to be dishonest if the defendant merely had a hope of being able to repay the
possessor/owner of the property funds in the future (Williams)
If the intention is to deprive the owner for a limited time, it’s not larceny.
But if the intention is to exercise ownership of the goods, to deal with them as his own, an intention later to ‘Conditional return’
restore the property in the goods will not prevent the original taking being larcenous (Foster)
If the intention is only to make some slight alternation to the property and then
May amount to intention to permanently deprive if you take the goods and appropriate that property even if return it such intention is not to permanently deprive the owner of this property.
This can include: Changes the nature of the property as in the case of Weatherstone)
you return it. If, however, the intention is to make a substantial alternation and then return it in
its altered form it can be larceny. So the question is the degree of change
If you steal a movie ticket and use it to see a movie, only to actually to
return the physical ticket afterwards to the owner possessor that would
Exhausts the virtue of the property as in Beecham.
actually would amount to an intention to permanently deprive, because
you actually exhausted the virtue of the property.
Dishonesty = Fraudulent in Australia: Glenister (the terms are used interchangeably in Australia)
Term of ordinary meaning. In deciding what is dishonest jurors should
Meaning of dishonest/ fraudulent: ‘apply current standards of ordinary decent people’ (Feely applied by What people in their everyday life think of dishonest.
HCA in Peters)
MR 2. D takes the property fraudulently/dishonestly
Intention to permanently deprive alone is not enough; Involves an element of moral obloquy.
An example of moral obloquy is where D derived a personal profit from the stealing, or to
advantage the taker in a personal sense. But there may be other ways to prove dishonesty: Weatherstone.
The way in which Jury in NSW should determine the element of moral obloquy is not clear.
Therefore, it leaves the question whether is it just immoral according to ordinary standards or is it requirement
also the accused realise that what they were doing was in fact dishonest by those standards
A claim of right = genuine belief in a legal (not just a moral) right to the property
Genuine belief in a claim of legal right is inconsistent with MR of larceny
3. D has no claim of right over the property
At common law, claim of rights operates to remove the MR for the offence. The belief acts to negative the
element of fraudulence of dishonesty in larceny (see Langham (1984) 36 SASR 48 at 53 per King CJ)
As such, a belief in legal entitlement. Even if it has no foundation in law or fact i.e. the D mistakenly believe they
have legal right over the property, while in fact they don’t
D has the onus of raising this as an issue at trial (evidentiary burden). P must disprove BRD (legal burden).
Key case = Fuge
NOT real property or choses in action (Croton)
You won't be guilty of larceny (in common law) if you steal real property, or fixtures or other interests such
as treasures in action that might include your bank account balance (Croton)
1. The relevant property is capable of being stolen
Other than land itself, things that are attached to the land, such as trees, letterboxes (described as fixtures),
things growing out of the land (such as trees and corps), and things forming part of the land such as minerals
and soil cannot be stolen and carries away (see, eg, Billing v Pill [1954] 1 QB 70)
As such, it's not larceny to steal a watch, but not a land, or a tree (these are not movable!),
or (stealing online) bank credit (these are not tangible)
The criminal law added number of provisions extending larceny to the removal of things attached to land.
See ss 139 and 140, also ss 513-521A of Crimes Act)
For provisions concerning animals, see ss 126-133, 502-512)
Gas can be stolen (White (1853) Dears 203)
The criminal law added number of provisions extending larceny to the removal of things attached to land.
See ss 139 and 140, also ss 513-521A of Crimes Act)
This means, you don't need to e.g. hold it (actual possession) and then someone takes it from you.
For provisions concerning animals, see ss 126-133, 502-512)
Gas can be stolen (White (1853) Dears 203)
possession that is held by the employee or servant within the terms of their employment or servitude is
Constructive possession will suffice: see eg Hibbert v McKiernan considered to be constructively in the possession of the employer or master (see, eg, Williams v Phillips (1957)
2. That property belongs to another 41 Cr App R 5).
When property is found in someone’s house?
Therefore, if a property is left on someone’s enclosed land, even if the owner of the land is unaware of it, that is
As such, if you hold a property in your hand, or have it in your backpack, or it's somewhere in your backyard constructive possession and if someone takes it can be guilty of larceny (see eg, Hibbert v McKiernan)
and you are not even aware of it, these all can be larceny.
AR
Stupid as it may sound, if one thief steal from another thief, that person can be guilty of larceny (Bollen J in Anic
refers “Kennys Outlies of Criminal Law (1966) by Mr JWC Turnder (at p 267, paragraph 227)”
Larceny by clerk or servant is covered by statutory provision in s 156 of Crimes Act
The defendant must take the property, which involves moving the property - ‘asportation’
Must be positive act, not just intention (Potisk) If the cashier hand the D too much change, even if the D has it
in their mind to not say anything and take it away, that is not enough, they should actually ‘move’ and show it as
a positive action (Potisk)
3. D takes and carries away the property
(Asportation)
“any movement of the goods with intent to steal them is sufficient to constitute an asportation”: Wallis v Lane
(minimal requirement for this element, meaning only moving it a bit is enough)
As such, not essential to prove that the thief successfully ran away with the property, in face even the slightest
movement of the property will do, but there must be some kind of positive act that is more than just an
intention.
The taking of the property must be done with the absence of the owner/possessor’s consent (Middleton:
Kennison v Daire).
4. The taking is done without the consent of the The caselaw makes it clear that it’s not essential to show the owner said that they were actively protesting the
possessor/owner taking, instead the focus is on the absence of contest.
So if someone gives a property to D (courier or borrower), that can’t be larceny, even if at the time of passing
the D had it in their mind to take it away, or if they made that decision later.
Larceny
117 PUNISHMENT FOR LARCENY: “If the intention were not to take the entire dominion over the property, that is no larceny” (Holloway)
Whosoever commits larceny ... [shall] be
liable to imprisonment for five years. (since
the statute doesn't indicate the MR and AR
we should refer to Common law)
Temporary appropriation (ie borrowing without consent) is not larceny.
1. D has an intention to permanently deprive the The borrowing would not cease to be dishonest if the defendant merely had a hope of being able to repay the
possessor/owner of the property funds in the future (Williams)
If the intention is to deprive the owner for a limited time, it’s not larceny.
But if the intention is to exercise ownership of the goods, to deal with them as his own, an intention later to ‘Conditional return’
restore the property in the goods will not prevent the original taking being larcenous (Foster)
If the intention is only to make some slight alternation to the property and then
May amount to intention to permanently deprive if you take the goods and appropriate that property even if return it such intention is not to permanently deprive the owner of this property.
This can include: Changes the nature of the property as in the case of Weatherstone)
you return it. If, however, the intention is to make a substantial alternation and then return it in
its altered form it can be larceny. So the question is the degree of change
If you steal a movie ticket and use it to see a movie, only to actually to
return the physical ticket afterwards to the owner possessor that would
Exhausts the virtue of the property as in Beecham.
actually would amount to an intention to permanently deprive, because
you actually exhausted the virtue of the property.
Dishonesty = Fraudulent in Australia: Glenister (the terms are used interchangeably in Australia)
Term of ordinary meaning. In deciding what is dishonest jurors should
Meaning of dishonest/ fraudulent: ‘apply current standards of ordinary decent people’ (Feely applied by What people in their everyday life think of dishonest.
HCA in Peters)
MR 2. D takes the property fraudulently/dishonestly
Intention to permanently deprive alone is not enough; Involves an element of moral obloquy.
An example of moral obloquy is where D derived a personal profit from the stealing, or to
advantage the taker in a personal sense. But there may be other ways to prove dishonesty: Weatherstone.
The way in which Jury in NSW should determine the element of moral obloquy is not clear.
Therefore, it leaves the question whether is it just immoral according to ordinary standards or is it requirement
also the accused realise that what they were doing was in fact dishonest by those standards
A claim of right = genuine belief in a legal (not just a moral) right to the property
Genuine belief in a claim of legal right is inconsistent with MR of larceny
3. D has no claim of right over the property
At common law, claim of rights operates to remove the MR for the offence. The belief acts to negative the
element of fraudulence of dishonesty in larceny (see Langham (1984) 36 SASR 48 at 53 per King CJ)
As such, a belief in legal entitlement. Even if it has no foundation in law or fact i.e. the D mistakenly believe they
have legal right over the property, while in fact they don’t
D has the onus of raising this as an issue at trial (evidentiary burden). P must disprove BRD (legal burden).
Key case = Fuge
