LAWS1206 Lecture Notes - Lecture 15: Property Damage, Egg Cell, Implied License
Week 11: Property Offences I
Print Property Legislation, esp CH3 of the code
Instead of going to the common law, go to Chapter 2 relating to all the principles i.e.
mens rea etc.
Interpretation Act Applies S15AA
Wednesday, 10 May 2017
17:41
Every offence has been a NSW crimes offence (it is a common law jurisdiction)
Have major piece of legislation but all the gaps are filled up by the case laws
Manslaughter: alleged defined in s18(1)(b), only way to understand the content of
manslaughter is to go to the common law where concepts of manslaughter can be interpreted
Code: it is intended to be a complete state of a law. It is supposed to be in the code,
everything is in it
Brief explanation of the pre-9 April 2004 position in relation to property
offences in the ACT.
Introduction to the changes brought about by the Criminal Code (Theft,
Fraud, Bribery and Related Offences) Amendment Act 2004 – which inserts a Chapter 3
into the Criminal Code 2002 (ACT).
Note that the new offences are based on the MCC, Chapter 3, which,
like the old ACT provisions, are modelled on the Theft Act 1968 (UK). So there
are a lot of similarities between the old and the new offences.
Criminal Codes and their interpretation:
Significance of Chapter 2 – General Principles of Criminal
Responsibility (NB section 7 of the Code)
Statements re Code interpretation by Kirby J in Barlow (1997) 188
CLR 1 and Charlie (1999) 199 CLR 387.
Relevance of the common law to interpretation of code offences?
Introduction to the old common law of larceny and questions.
Overview of ACT Chapter 3 Offences
The elements of theft under the Criminal Code 2004 (ACT) (ss 308 and 321).
Physical Elements of theft (ss 308 and 321):
Appropriation (s 304);
Property (Code Dictionary + definition in Legislation Act 2001
(ACT));
Belonging to someone else (ss 301 and 305).
Special issues re “property”:
Money transfers (s 330);
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General deficiency (s 307).
What are property offences?
Majority of major crimes are property offences, prevalent
Larceny(NSW) / theft (ACT) / stealing
Fraud / obtaining by deception / embezzlement
Burglary / breaking and entering / unlawful entry with intent
Robbery : stealing with force, threat of force
Extortion / bribery:
Criminal damage / vandalism
Computer hacking / computer misuse
Copyright piracy / Trade mark counterfeiting
Dealing in stolen goods
Forgery / uttering ( when attempt to pass of a forge document when you know
it is forged)
Property offences in Australian Jurisdictions
Category 1: basing on the common law of larceny
In NSW, the longstanding legislative offences in the Crimes Act 1900 (NSW) are
based on the common law of larceny. On February 22, 2010, the Crimes Amendment
(Fraud, Identity and Forgery Offences) Act 2009 (NSW) inserted a few new
definitions as well as some fraud offences into the Crimes Act, but the bulk of offences
(based on larceny) remain unchanged.
Category 2: updated laws, not on larceny, but on the 1968 Act from England, adopted
the approach but still did it with the context of a pre-existing code or legislation
Legislative/Code offences directly based on the English Theft Act 1968 (Vic, SA and
NT).
Category 3: Griffith Code Jurisdiction, based on the old common law of larceny,
contrasted to category two
Griffith Code property offences based on larceny (in jurisdictions that have Criminal
Codes based on the Draft Code developed by Sir Samuel Griffith in 1897 - Qld, WA,
Tas).
Category 4: based of model criminal code, it is itself based on Theft Act
Code offences based on the MCC - the provisions of which were themselves based on
the Theft Act 1968 (UK) (ACT and Cth).
LOOKING AT ACT PROPERTY OFFENCES
Because:
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NSW is the only Australian jurisdiction to cling to the common law of
larceny; and
Very importantly,
You cannot complete a compulsory criminal law and procedure course without
knowing something about criminal codes.
(The ACT is in transition from having a common law criminal law system very
similar to NSW to being a codified criminal law jurisdiction. That transition will
be complete by 1 July 2017 (see Criminal Code 2002 (ACT), ss 7, 8 and 10 as at 1
May 2017.)
ACT used to be a common law jurisdiction like the NSW,
Still on track to be a complete codified jurisdiction, trying to move to a
Code juris but still retaining old legislation ACT, but that’s do with offences against
the person
Property offences are completely codified
History of ACT property offences
Criminal Code (Theft, Fraud, Bribery and Related Offences) Amendment Act
2004 (ACT) added Chapter 3 to Criminal Code 2002 (ACT)
Prior to 2004, ACT was in category 2, we had Legislation modelled from
the English Theft Act
Sometimes look to the Victorian to see how law worked
The NEW law adopted from MCC is itself modelled from the English
Theft Act
In force in ACT from 9 April 2004
Replaced previous property offences in Crimes Act 1900 (ACT) (based on
Theft Act 1968 (UK) offences)
Based on Model Criminal Code property offence provisions which are
themselves also based on offences in Theft Act 1968 (UK)
What is a Code?
Definition of a ‘Code’ in Matthew Goode, ‘Codification of the Australian Criminal
Law’ (1992) 16 Crim LJ 5
[A Criminal Code is a] pre-emptive, systematic, and comprehensive enactment
of the whole field of law. It is pre-emptive in that it displaces all other law and its
subject areas save only that which the Code excepts. It is systematic in that all of
its parts, arranged in an orderly fashion and stated with a consistent terminology,
form an interlocking, integrated body, revealing its own plan and containing its
own methodology. It is comprehensive in that it is sufficiently inclusive and
independent to enable it to be administered in accordance with its own basic
policies.[1]
What motivated the ACT to adopt a Criminal Code?: '
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Document Summary
Print property legislation, esp ch3 of the code. Instead of going to the common law, go to chapter 2 relating to all the principles i. e. mens rea etc. Every offence has been a nsw crimes offence (it is a common law jurisdiction) Have major piece of legislation but all the gaps are filled up by the case laws. Manslaughter: alleged defined in s18(1)(b), only way to understand the content of manslaughter is to go to the common law where concepts of manslaughter can be interpreted. Code: it is intended to be a complete state of a law. It is supposed to be in the code, everything is in it. Brief explanation of the pre-9 april 2004 position in relation to property offences in the act. Introduction to the changes brought about by the criminal code (theft, Fraud, bribery and related offences) amendment act 2004 which inserts a chapter 3 into the criminal code 2002 (act).
