LWZ114 Lecture Notes - Lecture 11: Embezzlement, Larceny, Criminal Conversion
OFFENCES AGAINST PROPERTY
LARCENY
S131 CLCA: Any person convicted of simple larceny shall be liable to be imprisoned up to 5 years.
Physical elements
❖ Tangible property of another;
❖ A physical taking and carrying away of the property;
❖ Without consent of the owner.
➢ A mistake vitiates consent only if it is fundamental (ie. mistake about D’s identity or the nature & quantity of the
goods).
Fault elements
At the time of the taking:
❖ Intention to permanently deprive the owner of the property;
❖ Without a claim of right;
➢ D did not honestly believe that he had a right to it in law.
❖ That is dishonest.
➢ R v Feely
▪ Dishonesty involves moral obloquy. {Do we want to call D a dishonest person?}
▪ ‘Dishonesty’ is determined by the jury applying the current standards of ordinary decent people.
▪ *D, manager, removed 30 pounds from employer’s safe against his express instructions.
▪ *D always intended to replace the money & the employer owed him 70 pounds in wages and commissions.
▪ No defence that D intended to repay, or that his employer owed him more than the sum taken.
➢ R v Ghosh
▪ Feely/Ghosh test: To prove dishonesty, the prosecution must convince the jury that:
• The accused’s conduct was dishonest according to the standards of reasonable and honest people; and
• The accused knew that his conduct was, by those standards, dishonest.
▪ Actions may be dishonest even if they are morally justified.
▪ [Model Criminal Code: A degree of uncertainty or variability is preferable to a very narrowly drawn
definition of dishonesty. Anyway, the cases where dishonesty is a genuine issue are few.]
➢ Peters (HC): The jury decides whether D’s act was dishonest, by the standards of ordinary, decent people.
▪ Rejected Ghosh test as distracting: Irrelevant whether D subjectively appreciated that his act was dishonest by
the standards of ordinary honest people.
➢ Wasik: Motive is relevant to the issue of dishonesty.
➢ Deficiencies of Feely/Ghosh test: Outcome depends on jury’s views, and we have a multi-cultural society.
Other offences against property
Larceny as bailee, larceny as a clerk/servant, larceny by trick, embezzlement by clerk/servant, obtaining credit by fraud or
false pretences, fraudulent conversion, blackmail, robbery.
OBTAINING BY FALSE PRETENCES
❖ D employs a deception or false pretence;
❖ Which is intended to deceive; and
❖ Which causes V to agree or consent to hand over ownership of the property.
THEFT: S15.1 Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences Act) 2000 (Cth).
Physical elements
❖ Property belonging to another;
➢ S14.4: Property includes all real or personal property, including money and intangible property.
➢ S15.4(1): A person cannot commit theft of land, or things forming part of land and severed from it by the person
or the person’s directions, except where:
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
S131 clca: any person convicted of simple larceny shall be liable to be imprisoned up to 5 years. A physical taking and carrying away of the property; A mistake vitiates consent only if it is fundamental (ie. mistake about d"s identity or the nature & quantity of the goods). D did not honestly believe that he had a right to it in law. Dishonesty" is determined by the jury applying the current standards of ordinary decent people: dishonesty involves moral obloquy. [model criminal code: a degree of uncertainty or variability is preferable to a very narrowly drawn definition of dishonesty. Anyway, the cases where dishonesty is a genuine issue are few. ] Wasik: motive is relevant to the issue of dishonesty. Deficiencies of feely/ghosh test: outcome depends on jury"s views, and we have a multi-cultural society. Larceny as bailee, larceny as a clerk/servant, larceny by trick, embezzlement by clerk/servant, obtaining credit by fraud or false pretences, fraudulent conversion, blackmail, robbery.
