LAW EXTENSION COMMITTEE
CRIMINAL LAW AND PROCEDURE
LECTURE 3
PROPRERTY OFFENCES CONTINUED: LARCENY BY FINDING; LARCENY BY TRICK; FRAUD; BREAKING AND ENTERING; ROBBERY
LARCENY BY FINDING
Larceny by finding pertains to the situation where a person finds property which has been lost. If the property has been abandoned by the owner, then no larceny occurs, as the taking is by consent, and the person taking the property may also honestly believe they have a legal right to take possession. However, in circumstances where the property has not been abandoned by the owner but has simply been lost, the salient issue is whether or not the principle Thurbon (1848) applies. The principle in Thurbon is that a person does not have the requisite mens rea of larceny if they keep property that they find, provided that at the time of taking:
· The Defendant honestly believes that the property has been abandoned; or
· The Defendant honestly believes that the owner of the property can't be found
(even if, after later finding the identity of the owner, the Defendant decides to retain the property).
Mingall v McCammon (1970) involved a Defendant who found a wallet on the floor of a TAB. The Defendant stated that when he picked up the wallet he did not open it, and did not turn his mind to whether or not the property had been abandoned, or whether he could find the owner. He opened the wallet two days later. At that time, despite knowing the identity of the owner of the wallet, he decided to keep it.
Bray C.J. discussed the interaction between the principle in Thurbon, and the doctrine of continuing trespass in Riley. Bray C.J. (with whom Chamberlain and Wells JJ agreed) held that the principle in Thurbon is an exception to the doctrine of continuing trespass. Consequently, because the Defendant told the police that, at the time of taking the property he did not consider the issue of whether the wallet had been abandoned, or the identity of the owner, the court held that the principle in Thurbon could not apply. As the taking of the wallet had been a trespass, the doctrine of continuing trespass applied and, at the time the Defendant realised the identity of the owner and decided to keep the wallet, he had committed larceny.
The subjective state of mind of the Defendant (i.e. whether or not he Defendant honestly believed the property was abandoned, or the owner of the property could be found) is to be inferred from all the facts and circumstances: McDonald (1983) per Lee, Maxwell, and Yeldham JJ:
"The find is belief, in our view, is to be inferred from the facts and circumstances surrounding the finding and the taking of the goods, and in this respect regard may be had not only what the finder does in relation to the goods but also what he does not do that might reasonably be regarded as consistent with the actions of an honest man finding goods".
Section 124 Crimes Act-Fraudulent Appropriation
Section 124 creates an alternative offence where the Defendant is tried for larceny, and it appears that the Defendant had not originally taken the property with any fraudulent intent, but had "fraudulently appropriated to his or her own use or that of another property in respect of which the person is indicted", or fraudulently retains property in order to secure a reward".
LARCENY BY TRICK
Larceny by trick was recognised by the common law in Pear (1779). Prior to that decision, the common law took the view that the law of larceny did not protect persons who handed over property by consent in circumstances where the ‘consent’ had been obtained by fraud or deception. In other words, the fraud or deception did not vitiate consent, and an essential element of larceny was missing.
However, there remains a significant limitation on the offence of larceny by trick. There is no larceny by trick if owner intended to pass both ownership and possession of the goods: Justelius (1973) per Lee J:
"In order for the crime of larceny by trick to be committed, it is essential that it should be established that the owner intended only the possession of property to pass to the thief, for, if it be shown that the owner intended that the property in the goods was to pass, the offence is no longer that of larceny by trick: it may be the offence of obtaining by a false pretence or a similar offence (Crimes Act 1900 s 179).”
FRAUD-SECTIONS 192B-192H CRIMES ACT 1900
The offence of fraud originally involved the various offences of obtaining by false pretences and fraudulent misappropriation. Such offences were introduced by way of statute in England in the late 18th century. In England, they were replaced by the offence of Fraud in the Theft Act 1968, with similar legislation being introduced in Victoria in 1974, and South Australia in 2002.
The Crimes Amendment (Fraud, Identity and Forgery Offences) Act 2009 commenced on 22 February 2010. It repealed over 30 offences, and replaced them with one general Fraud offence (Section 192E) and various ancillary offences (and offences of Money Laundering and Identity Theft, which are not covered in the course).
The offence of Fraud is contained in Section 192E. Its elements are: –
· By any deception;
· Dishonestly;
· Obtains property belonging to another; or
· Obtains any financial advantage, or
· Causes any financial disadvantage
Deception is defined in Section 192B. It involves "any deception by words or conduct as to fact or law", but must be intentional or reckless
Dishonesty is defined in Section 4B.
Obtaining financial advantage, or causing financial disadvantage, are defined in Section 192D. Obtaining financial advantage includes:
· Obtaining for oneself or another person;
· Inducing a third person to do something that results in oneself, or a third person obtaining a financial advantage;
· Keeping a financial advantage
Causing financial disadvantage includes:
· Causing a financial disadvantage to another person;
· Inducing a third person to do something that results in another person suffering a financial disadvantage
Under Section 192D, the financial advantage or financial disadvantage can be permanent or temporary.
Section 192C defines obtaining property belonging to another. The definition includes:
· Obtaining ownership, possession or control of the property;
· Retaining ownership, possession or control;
· Inducing a third person to do something which causes ownership, possession, or control of the property to pass to another person
Under Section 192C (2), it is necessary that the Defendant intended to permanently deprive the other of the property. Section 192C(4) states that "A person obtaining property belonging to another without meaning the other to permanently lose the thing itself has, nevertheless, the intention of permanently depriving the other of it if the person's intention is to treat the thing as his or her own to dispose of regardless of the other's rights".
What is Deception and the Intention to Deceive?
DPP v Ray (1974) where Defendant was one of 4 men who went to a restaurant. Men ordered meals and ate them. When waiter was not looking, men ran out without paying the bill. Defendant stated that when he first entered the restaurant, he intended to pay, but only decided not to pay after eating the meal. Defendant charged with dishonestly, by deception, obtaining a financial advantage under Section 16 Theft Act 1968 (UK).
Lord MacDermott (with whom Lord Morris and Lord Pearson agreed). Conduct of the Defendant was deceptive. There was an implied representation when he entered and remained in the restaurant that he would pay. Must look at the whole of the transaction. When the Defendant ‘changed his mind’ and decided not to pay:
“…it did falsify the representation which had already been made because that initial representation must, in my view, be regarded as not something then spent and past but as a continuing representation which remained alive and operative and had already resulted in the respondent and his defaulting companions being taken on trust and treated as ordinary, honest customers”.
Lord Morris;
“By ordering his meal and by his conduct in assuming the role of an ordinary customer the respondent had shown that it was his intention to pay. By continuing in the same role and behaving just as before he was representing that his previous intention continued. That was a deception because his intention, unknown to the waiter had become quite otherwise. The dishonest cause of intention was not likely to produce the result that the waiter should not know of it or be given any sort of clue that it (the change of intention) had come about. Had the waiter suspected that by a change of intention a secret exodus was being planned, it is obvious that he would have taken action to prevent its being achieved.”
Lord Reid (dissenting, along with Lord Hodson). Deception is words or conduct inducing a person to believe something is true which is false, and to which the person practicing the deceit knows or believes is false. Deception involves some positive conduct. There could be no deception until Defendant decided not to pay the bill. His physical conduct of merely “sitting still” at the table was not deceptive. Dishonest evasion of an obligation to pay is not enough to constitute the offence of fraud.
Moore v R [2016] NSWCCA 260.
Moore was convicted of dishonestly obtaining a financial advantage by deception (s 192E(1)(b) Crimes Act) and dealing with the proceeds of crime (Section 193B(2) Crimes Act). On 11 March 2010, Moore opened a “Complete Freedom” account with St George Bank in Goulburn. By July 2010, Moore had made 3 deposits, to a total amount of approximately $6,000.00. By July 2013, Moore had made multiple withrdawals from the account, for a total amount of in excess of $2,000,000.00 and used the monies to purchase clothes, concert tickets, expensive cars, and property. The bank had never questioned the withdrawals, and continued to pay monies to Moore and, on his account, charge fees for the account being overdrawn.
The NSW Court of Criminal Appeal quashed the convictions on the basis there was no evidence to establish any deception by Moore, and mere “dishonesty” is insufficient to establish Fraud. The Court of Criminal Appeal held (Leeming JA; Fagan J; and Adams JA in separate judgments):
· The bank had clearly paid monies under mistake, and Moore had acted dishonestly by taking advantage of the mistakes by the bank.
· The terms of the contract between the bank and Moore did not prevent Moore from making applications to the bank to withdraw money. It was the decision of the bank to pay the monies to Moore.
· Merely making an application to withdraw money is not, of itself, deception. There was no deceptive acts or representations by Moore to the bank that caused the bank to pay monies to him.
· Dishonestly retaining monies that have been obtained, where there has been no deception that caused the monies to be paid in the first place, is not Fraud.
Causation
There must be a causal nexus between the deception and the property passing/financial advantage/financial disadvantage: R v Kovacs [1974] 1 All ER 1236 per Lawton LJ:
“What there must be is a causal connection between the deception used and the pecuniary advantage obtained. There was such a connection in this case”.
Balcombe v De Simioni (1972) 126 CLR 576 where Defendant was a door to door salesman who falsely represented that he needed to sell cookbooks because he was a student from South Australia who had been selected to travel overseas and represent the youth of Australia on a goodwill tour. Gibbs J stated (in respect of Section 409 of the Criminal Code (WA)):
“…it must be proved…he obtained such property by means of a representation of a matter of fact which representation was false in fact and which he either knew to be false or did not believe to be true…”
However, in respect of the above, note that the definition of “deception” includes words or conduct as to fact or law, and can be either intentional or reckless.
“Property” includes personal cheques and bank cheques (Parsons (1999) 190 CLR 619).
“Obtaining a financial advantage” includes dishonest conduct to defer payment of legal debt, even if the Defendant would never have been able to pay the debt in any event (Vasic (2005) 11 VR 380, where the Defendant obtained building materials which he ‘paid’ for with a valueless cheque).
Fraud-The Issue of Honest Belief of Claim of Right
The 2010 amendments to the Crimes Act 1900 do not refer to honest belief of claim of right. However, the discussion paper which formed the basis of the amendments (Legislation, Policy and Criminal Law Review Division, Department of Justice and Attorney General NSW “Discussion Paper on Crimes Amendment (Fraud and Forgery) Bill 2009” stated:
“NSW will continue to rely on the common law defence of claim of right under the proposed Bill”.
Honest Belief of Claim of Right remains a ‘defence’ to the offence of fraud (and previously, obtaining by false pretences’). The rationale for this is that a Defendant is not acting dishonestly if he or she honestly believes she has a legal right to the property
Kastratovic (1985) 42 SASR 59 per King CJ:
“The essential notion of defrauding is dishonestly depriving some person of money, or property, or depriving him of, or prejudicially affecting him in relation to, some lawful right, interest, opportunity or advantage which he possesses…To defraud must involve something more than merely inducing a course of action by dishonest means…In all cases, the element of intent to defraud connotes the intention to produce a consequence which is in some sense detrimental to a lawful right, interest, opportunity, or advantage of the person to be defrauded, and is an intention distinct from and additional to the intention to use the forbidden means…a person is not defrauded if he is caused to do no more than pay his just debt…That proposition, however, should not be understood in a wider sense than intended. It can apply only to a belief that the debt is presently due and payable…Moreover, I think that the proposition must be confined to a state of mind which excludes any belief that there is a genuine dispute about or reasonably available defence to the accused’s claim”.