Larceny

[5-6100] Introductory note

This direction covers all elements of the offence. In most cases it will be unnecessary to refer in detail to them all. It should be drawn to the attention of the jury that, to justify a conviction, not all the property referred to in the charge (whether it be money or goods) need be proved to have been stolen — part of the property alleged will suffice.

[5-6105] Suggested direction

The accused is charged with stealing … [identify the property]. What amounts in law to stealing? The essential elements of that offence are —

1.: that the property must belong to someone other than the accused;
2.: it must be taken and carried away; and
3.: the taking must be without the consent of the owner of the property.

Beyond those three elements or requirements, there are an additional three elements which relate to the accused’s mental state at the time of the taking, namely —

4.: the property must be taken with the intention of permanently depriving the owner of it;
5.: the property must be taken without a claim of right made in good faith; and
6.: the property must be taken dishonestly.

So far as the three last mentioned elements are concerned (the mental elements), it is essential that they exist at the time of the taking. I propose now to tell you a little more about those various elements that have significance in the present case.

That the property must belong to someone other than the accused

The law differentiates in a number of contexts between possession, control and ownership. Each of those concepts can become quite involved and complex. Fortunately, in the circumstances of the present case, it is neither necessary for me to seek to explain all their refinements to you, nor for you to understand all of those refinements.

However, to give you but the broadest of examples: if you were to buy, say, an expensive diamond from a jeweller, assuming that it was legally [his/hers] to sell to you in the first place, then, the moment you took physical delivery of it you would own it, have the control of it, and be in possession of it.

If, however, you proceeded to place it in a bank security box for safe keeping, you would, for some legal purposes anyway, cease to possess it, although you would still own it and be in control of it. If a robber broke into the bank and took your diamond, the robber would then be in possession of it, even though you would, in law, continue to be its owner.

When I direct you that the property must belong to someone other than the accused, all that is required is that, at the time of the taking, it must be owned, controlled or possessed by someone other than the accused. Thus in this context, the law uses the concept of belonging in the widest possible sense.

That it must be taken and carried away

Before there is a stealing in law, there must be some physical movement of the property in question, no matter how slight, by the accused or someone acting on [his/her] behalf. The slightest movement will suffice.

That the taking must be without the consent of the owner

In the present case, the Crown has alleged that the property was the property of [name] and has called supporting evidence. If you are satisfied, to the standard already mentioned, that this is so, then [name] is the owner of the property. You must then be satisfied to that same standard that the taking was without [name’s] consent.

We come then, to the further three elements which relate solely to [the accused’s] mental state at the time of the alleged taking.

The intention of permanently depriving the owner of it

It does not amount to stealing if the property is taken only for a temporary purpose, unless the person taking the property realises at the time of taking that it is certain or almost certain that the result of [his/her] actions will be that the owner of the property will be permanently deprived of it.

That the property must be taken without a claim of right made in good faith

If the accused genuinely claims that [he/she] was legally justified in taking the property then, even if legally wrong in that claim, [he/she] is not guilty of stealing. However, the claim must be one of legal right. The question is whether, at the time of the taking, the accused genuinely believed that [he/she] had such a legal right. It is not sufficient that the accused believed that [he/she] had a moral entitlement to the property.

That the property must be taken dishonestly

What this means is that the accused, by the intentional taking of the property without mistake and with knowledge that the property of another person was being taken, acted dishonestly. Whether [he/she] was acting dishonestly is for you to determine, applying the current standards of ordinary decent people … [see: R v Glenister (1980) 2 NSWLR 597; R v Weatherstone (unrep, 20/8/87, NSWCCA)].

[5-6110] Notes — claim of right

The authorities relating to a claim of right are reviewed in R v Fuge (2001) 123 A Crim R 310 at 314–315. The principles extracted from the authorities (omitting citations) are as follows —

(i): The claim of right must be one that involves a belief as to the right to the property or money in the hands of another.
(ii): The claim must be genuinely, that is, honestly held — whether it was well founded in fact or law or not.
(iii): While the belief does not have to be reasonable, a colourable pretence is insufficient.
(iv): The belief must be one of a legal entitlement to the property and not simply a moral entitlement.
(v): The existence of such a claim, when genuinely held, may constitute an answer to a crime in which the means used to take the property involved an assault, or the use of arms — the relevant issue being whether the accused had a genuine belief in a legal right to the property rather than a belief in a legal right to employ the means in question to recover it.
(vi): The claim of right is not confined to the specific property or banknotes which were once held by the claimant, but can also extend to cases where what is taken is their equivalent in value, although that may be qualified when, for example, the property is taken ostensibly under a claim of right to hold them by way of safekeeping, or as security for a loan, yet the actual intention was to sell them.
(vii): The claim of right must, however, extend to the entirety of the property or money taken. Such a claim does not provide any answer where the property or money taken intentionally goes beyond that to which the bona fide claim attaches.
(viii): In the case of an offender charged as an accessory, what is relevant is the existence of a bona fide claim in the principal offender or offenders. There can be no accessorial liability unless there has in fact been a foundational knowing of the essential facts which made what was done a crime, and unless the person who is charged as an accessory intentionally aided, abetted, counselled or procured those acts.
(ix): It is for the Crown to negative a claim of right where it is sufficiently raised on the evidence, to the satisfaction of the jury.

[5-6115] Suggested direction — defence of intention to restore

The following direction is suggested where the defence raises intention to restore under s 118 of the Crimes Act 1900. See also Foster v The Queen (1968) 118 CLR 117.

If, members of the jury, you find that the accused did intend to appropriate the property for [his/her] own use or for [his/her] own benefit or for that of another, but intended eventually to restore the same (or return the equivalent sum of money) that in itself does not entitle the accused to an acquittal. If you are satisfied beyond reasonable doubt that the accused intended to appropriate the goods to [his/her] own use for [his/her own benefit/for the benefit of another], even if [he/she] intended eventually to return the property, then the Crown has established this element.

If the question of consent of the owner or claim of right are raised as issues, the onus is on the Crown to negative these ingredients.

[5-6120] Notes — larceny/receiving (special verdict)

See s 121 of the Crimes Act 1900. This is only available when the accused is charged with larceny (or any offence including larceny) and with receiving in respect of the same property. To the extent to which the property charged in the larceny charge is not common to the property charged in the receiving count, such a verdict is not available. It is only where there is common property charged in each count that the special verdict will be available and such a verdict, if returned, will be limited to that common property: R v Clarke (1995) 78 A Crim R 226; R v Nguyen (unrep, 20/02/97, NSWCCA).

These authorities establish that the special verdict only arises where —

(i)

the Crown is unable to establish beyond reasonable doubt whether the property was stolen or received because the evidence is consistent with both offences having been committed;

(ii)

the jury are unanimously satisfied that —

(a): the accused is guilty of larceny or receiving; and
(b): in respect of the same property; but
(c): they are unable to say which.

For a recent case see R v Campbell [2004] NSWCCA 314.

[5-6125] Suggested direction — after directions on larceny and receiving

The accused is charged with stealing and, in the alternative, with receiving property.

After considering the evidence, you may not be satisfied beyond reasonable doubt that [he/she] either stole it or received the property. In that event, the accused is entitled to be found “not guilty”, if you are unanimously of that view.

On the other hand, you may be unanimously satisfied beyond reasonable doubt that [he/she] did steal the property. If you are unanimously of that view, your duty would be to return a verdict of “guilty” on the first count and you would not be asked for a verdict on the second count.

Alternatively, you may not be satisfied beyond reasonable doubt that the accused stole the property, in which case you would turn to consider the second count. If, in respect of that count, you were unanimously satisfied beyond reasonable doubt that [he/she] received the property, then again your duty would be to bring in a verdict of “not guilty” on the first count, but “guilty” on the second count.

Another alternative position which you may arrive at is, that having unanimously found the accused “not guilty” on the first count, you may also unanimously find that you are not satisfied beyond reasonable doubt as to [his/her] guilt on the second count. In that case, your unanimous verdict would be one of “not guilty” in respect of both charges.

There is, however, another alternative which the law makes available. It arises and arises only where —

1.: you are not satisfied that the Crown has established its case beyond reasonable doubt as to the first charge; and
2.: you are not satisfied beyond reasonable doubt that the Crown has established its case in relation to the second charge; but
3.: You are satisfied beyond reasonable doubt that the accused either stole the property or received it, and furthermore you are also unanimously satisfied beyond reasonable doubt that you cannot say which. In that case, the law provides for what is termed a “special verdict” to that effect, that is to say, that the accused is guilty of either stealing or receiving, but you are unable to say which.

[If applicable, add

There is, however, one further matter in relation to that “special verdict” which I must direct you about as a matter of law. You may remember that in dealing with the charges of larceny and receiving I told you that provided you were satisfied beyond reasonable doubt that the accused stole the property in relation to the charge of stealing, or received it in the case of the charge of receiving, you may bring in a verdict of “guilty” in respect of that count. I confirm those directions of law. But I add this qualification to it for the purposes of the “special verdict” to which I have just referred. You may only bring in that special verdict in respect of property which is common to both the stealing and the receiving charge.]

I have written these possible verdicts down on a piece of paper which will be handed to the [foreman/forewoman] after Counsel have seen it. When you return to court after reaching your verdict, my associate will ask the [foreman/forewoman]: “As to the first count (larceny) is the accused ‘guilty’ or ‘not guilty’”. If the answer to that question is “guilty” then no further question will be asked.

If the answer to that question is “not guilty”, my associate will then say to the [foreman/forewoman]: “As to the second charge (receiving) is the accused ‘guilty’ or ‘not guilty’?”. If the answer is “guilty”, then no further questions will be asked. If, on the other hand, the answer is “not guilty” then my associate will ask the [foreman/forewoman]: “Do you return a special verdict that the accused is ‘guilty’ of either stealing or receiving (the same property) but you are unable to say which?”. The response to that question will be either “We do return a special verdict” or “We do not return a special verdict”, as the case may be.

[5-6130] Suggested written direction — verdict as to the charge of larceny

1.: If you are unanimously satisfied beyond reasonable doubt that the Crown has established its case — return a verdict of “guilty of larceny”. Go no further.
2.: If you are not unanimously satisfied beyond reasonable doubt that the Crown has proved its case — the accused can not be convicted of larceny. Go to [5-6135].

[5-6135] Suggested written direction — verdict as to the charge of receiving

1.: If you are unanimously satisfied beyond reasonable doubt that the Crown has established its case of receiving — return a verdict of “guilty of receiving”. Go no further.
2.: If you are not unanimously satisfied beyond reasonable doubt that the Crown has established its case as to this charge — the accused can not be convicted of receiving. Go to [5-6140].

[5-6140] Suggested written direction — verdict as to the charge of special verdict

1.: If you are not unanimously satisfied that the Crown has established its case as to larceny; and
2.: You are not unanimously satisfied that the Crown has established its case as to receiving; but
3.: You are unanimously satisfied that the Crown established beyond reasonable doubt that the accused either stole or received the same property, being the whole or part of the property charged in each count, but you are unable to say which, you may bring in a special verdict of “guilty of either stealing or receiving”.

[5-6145] Suggested written direction — questions

When you have indicated that you have reached a verdict, your [foreman/forewoman] will be asked —

1.: As to the larceny count is the accused “guilty” or “not guilty”?
2.: (If guilty) so says your [foreman/forewoman] so says you all?
3.: (If not guilty) As to the receiving charge is the accused “guilty” or “not guilty”?
4.: (If guilty) So says you [foreman/forewoman] so says you all?
5.: (If not guilty) Do you or do you not return a special verdict that the accused is “guilty of either stealing or receiving” and you can not say which?

[5-6150] Larceny of motor vehicles

Section 154A of the Crimes Act 1900 creates a number of offences, the most prevalent of which is taking and driving a motor car without the consent of the owner or the person in lawful possession. The scope of the section, however, is considerably wider and includes not only motor cars but other forms of conveyance as defined in subs 2, such as carts, bicycles and ships. The offence is widened by including taking for the purpose —

(i): of driving it; or
(ii): secreting it; or
(iii): obtaining a reward for its restoration or pretended restoration;
(iv): or for any other fraudulent purpose.

The section is further extended by making it an offence to drive a conveyance knowing that it has been taken without consent or allowing oneself to be carried in or on the conveyance with that knowledge.

The section was introduced in 1924 in order to deal with the prevalence of “joy riding” in motor vehicles, that is to say, taking and driving away without consent, but not with the intention of permanently depriving the owner or person in possession of the vehicle and hence falling short of larceny at common law.

All the offences under s 154A are deemed to be larceny and the accused may be indicted as for that offence. The maximum penalty for the offence of larceny is imprisonment for five years (s 117). There is now a distinct offence in s 154F of “stealing” a motor car. The word “steals” in s 154F requires proof of an intention permanently to deprive the owner or person in possession of the motor car in order to establish that offence. The s 154F offence is punishable by a maximum penalty of imprisonment for ten years. The legislative policy expressed in s 154A and s 154F is apparently to continue to treat the “joy riding” of a wide variety of conveyances as being a less serious offence than the specific offence of larceny of a motor car — maintaining the distinction between the “joy rider” and the motor car thief.

Where the offence charged is “taking and driving”, the word “drives” imports some degree of movement of the conveyance. However, it has been held in England that to “drive” a vehicle does not include releasing the hand brake and letting it run down a hill or towing it or pushing it and thus, by any of those means, moving it: R v Bogacki (1973) 57 Cr App R 593 at 597. The English provision has been repealed and replaced by s 12 of the Theft Act 1968 (UK) which deleted the requirement of “driving” and expressed the offence in terms of “taking” for the use of the accused or of any other person. The court in R v Bogacki held that the word “takes” also imports the concept of movement and requires that for a conviction under s 12 of the Theft Act 1968 (UK) it must be shown that the accused, in taking the conveyance, did so with some movement of it, however small.

Presumably the lack of any requirement of “driving” in some of the s 154A offences means that movement by means of towing or pushing or releasing a hand brake would satisfy the requirement of a “taking” in respect of those offences.

Where the charge under s 154A includes the allegation that the accused drove the conveyance or where that was the alleged purpose of the taking, the word “drive” conveys (as part of its meaning) the application of motive force by the accused — so that in addition to having control of the steering and braking mechanisms of the vehicle, the accused must also be shown to have control over its means of propulsion (whatever the means of propulsion are, whether by the engine or the force of gravity, by the accused having initiated the movement of the vehicle downhill by releasing the hand brake, etc).

On the other hand, simply steering a vehicle being towed by another vehicle does not constitute “driving” since the steerer of the towed vehicle does not have any control over the means of propulsion of the vehicle: Hampson v Martin (1981) 2 NSWLR 782. The determining factor in whether “driving” is established is the control over propulsion, that is, over the mode of moving and stopping the vehicle: R v Affleck (1992) 65 A Crim R 96.

The act of “driving” involves a voluntary act but there is a presumption of voluntariness and, unless there is evidence which raises the matter as an issue, the presumption applies in favour of the Crown: Jiminez v The Queen (1992) 173 CLR 572; R v Dunne (unrep, 26/03/93, NSWCCA).

The word “other”, qualifying “fraudulent purpose”, suggests that the purpose of “secreting” or “obtaining a reward” must also be shown to be fraudulent. In this context, it is suggested that “fraudulent” means “dishonest”, and the jury would need to be directed on this issue. The jury should be told that to establish that the accused took the conveyance “fraudulently”, he or she must be shown to have acted dishonestly in the sense that the purpose at the time of the taking of the conveyance was dishonest and that, in deciding whether the act of taking was dishonest, they should apply the current standards of ordinary decent people: R v Glenister (1980) 2 NSWLR 597 esp at 607–608. In the context of s 154A(1)(a), it would also be appropriate to tell the jury that it would be open to them to find that the accused’s purpose was dishonest if he or she knew that they had no right to take the conveyance for the purpose of secreting it or obtaining a reward for its restoration or pretended restoration. Where a claim of right is raised, see: R v Love (1989) 17 NSWLR 608.

[5-6155] Suggested direction — charge is taking and driving (s 154A(1)(a))

The accused is charged that [he/she] without the consent of the owner (or person in lawful possession) of a … [specify conveyance] took and drove it.

To establish this charge, the Crown must prove beyond reasonable doubt that the accused took and drove the … [specify conveyance]. In order to do so, the Crown must establish that the accused drove the … [specify conveyance] in the sense that [he/she] moved it, having control over its means of propulsion and its steering and braking mechanisms. Any degree of movement, however minimal, is sufficient … [if in issue, canvass evidence for the Crown and for the accused and the opposing submissions].

The Crown must also prove that the taking and driving of the … [specify conveyance] was without the consent of the owner (or person in lawful possession).

[If there is an issue as to ownership or possession, canvass the evidence/opposing submissions and add

I direct you, as a matter of law, that if you accept the evidence of [owner/person in lawful possession] that [he/she] was, at the time of the alleged taking, [the owner/ person in lawful possession] of the … [specify conveyance], then it is open to you to find on that issue in favour of the Crown, provided you are satisfied as to it beyond reasonable doubt … [deal with any other evidence of ownership and/or possession such as certificates under traffic legislation].

I further direct you that if you are satisfied that the [owner/person in lawful possession] did [own/lawfully possess] the … [specify conveyance] at the time of the alleged taking, and that [he/she] did not consent to the taking and driving of it by the accused, then it is open to you to find that the Crown has established the second of these two essential matters which it must prove beyond reasonable doubt if you are to return a verdict of “guilty” in accordance with the directions I have given you.]

[5-6160] Suggested direction — where the accused is charged with taking the vehicle for the purpose of driving it

In this case, the direction will be as above in relation to the taking involving movement, however minimal, of the conveyance by the act of the accused; ownership or possession, as the case may be; and lack of consent.

The charge is that the accused took the … [specify conveyance] without the consent of the [owner/person in lawful possession] for the purpose of driving it. The word “purpose” relates, of course, to the accused’s state of mind and the Crown must prove beyond reasonable doubt that when [he/she] took the … [specify conveyance], [he/she] took it with that alleged purpose in mind.

Whether you are satisfied beyond reasonable doubt that the Crown has proved that the accused had that purpose will be a matter for you to determine having regard to all the relevant circumstances before, at the time of and even after the alleged taking. Since it is a state of mind which must be proved, this will be a matter of your drawing an inference or conclusion as to [his/her] state of mind, that is to say [his/her] purpose, from all the surrounding circumstances … [if in issue, canvass the evidence for the Crown and the accused and opposing submissions].

[5-6165] Suggested direction — where the charge is one of taking for the purpose of secreting, or obtaining a reward, or for any other fraudulent purpose

… [Deal with issues of taking; ownership/lawful possession; lack of consent in [5-6155]. Deal also with the question of the purpose of the accused adapted from [5-6160]].

Where the charge is one of secreting

In order to establish this essential element of the charge, the Crown must prove that the accused took the vehicle for the purpose of secreting it, that is to say, for the purpose of concealing it. In this case, the Crown alleges that the accused had the purpose of concealing the … [specify conveyance] from [its owner/person in lawful possession/an insurance company representatives/etc] … [indicate the Crown’s case accordingly and deal with any evidence on the issue and opposing submissions].

Whilst it is necessary, it is not sufficient for the Crown to prove beyond reasonable doubt that the accused took the … [specify conveyance] for the purpose alleged. The Crown must also establish beyond reasonable doubt that, in doing so, the accused acted fraudulently, that is to say, dishonestly.

In order to establish that [he/she] acted dishonestly, the Crown must prove that [he/she] had a dishonest state of mind at the time of the alleged taking.

In determining whether [his/her] state of mind was dishonest, you should apply the current standards of what is and what is not regarded as dishonest by ordinary decent people in the community.

I direct you, as a matter of law, that if you accept that the accused without the consent of the [owner/person in lawful possession] took this … [specify conveyance] and did so for the purpose of concealing it from [its owner/lawful possessor/insurance company agent/etc] then it would be open to you to infer from those circumstances that [he/she] took this … [specify conveyance] dishonestly … [deal with evidence for the Crown, and the accused and opposing submissions].

[If the accused raises as an issue a claim of right, add

Here the accused asserts that [he/she] had a genuine and honest belief at the time that [he/she] took the … [specify conveyance] that [he/she] had a lawful right to do so. If a person is acting under such a belief, which is genuinely and honestly held, then it can not be said that that person was dishonest in taking the thing in question, even if it was without the consent of the [owner/person in lawful possession].

It matters not whether in law there was no such right, or whether the accused mistakenly believed that [he/she] had such a right, or whether [he/she] had any reasonable grounds for such a belief. If that belief existed at the time of the taking then, as I have said, the state of mind of the accused would not have been dishonest.

Furthermore, I repeat that the Crown must prove beyond reasonable doubt that in taking the … [specify conveyance], the accused did act dishonestly. This issue having been raised therefore, it is for the Crown to establish beyond reasonable doubt, that the accused had no such genuine belief as asserted by [him/her].

If, at the end of your deliberations on this matter, you are left in a state of reasonable doubt as to whether the accused may have had such a genuine and honest belief, then the Crown would not have established this part of its case and your duty would be to acquit the accused, because in that event, the Crown would not have established a necessary element of the charge, namely that in taking the … [specify conveyance], the accused was acting dishonestly … [canvass evidence for Crown and the accused on the issue of claim of right and of dishonesty generally, and the opposing submissions].]

[5-6170] Suggested direction — where the charge alleged is taking for the purpose of obtaining a reward for restoration or pretended restoration of the conveyance

… [Deal with issues of taking, purpose, ownership or lawful possession, and lack of consent].

The Crown alleges that the purpose of the accused in taking the … [specify conveyance] was to obtain a reward for its [restoration/pretended restoration] … [deal with evidence for the Crown and any evidence for the accused on this issue and the opposing submissions. Proceed then to deal with “fraudulently” by adapting what is written above under (C) in relation thereto].

[5-6175] Suggested direction — where the charge is under s 154A(1)(b): driving or allowing oneself to be carried in a conveyance knowing that it had been taken without the consent of the owner or person in lawful possession

… [Deal with issues of taking and lack of consent, as essential elements of the charge which the Crown must establish beyond reasonable doubt, adapting what is said above for that purpose].

The Crown must also prove beyond reasonable doubt that before the accused drove the … [specify conveyance] it had been taken without the consent of the [owner/person in possession] … [direct the jury in terms of the accused driving it, that is, being in control of the method of propulsion of the conveyance and of its braking and other mechanisms].

[Where it is alleged that the accused allowed himself or herself to be carried in or on the conveyance, after dealing with the requirement of a previous non-consensual taking, add

The Crown must also establish that the accused allowed [himself/herself] to be carried [in/on] the … [specify conveyance] in the knowledge that it had previously been taken without the consent of the [owner/person in lawful possession]. “Knowledge” is a state of mind and it must exist at the time when the accused, by [his/her] voluntary act, entered [in/on] the … [specify conveyance] and permitted [himself/herself] to be carried [in/on] it.

Being a state of mind existing in the past, it is generally a matter to be inferred from all the relevant circumstances, but it is essential that the Crown show that the accused had the knowledge that the … [specify conveyance] had been taken beforehand without the consent of the [owner/person in possession].

It is not sufficient for the Crown to show that after the accused had entered [in/on] the … [specify conveyance] and permitted [himself/herself] to be carried [in/on] it that [he/she] acquired that knowledge and remained [in/on] the … [specify conveyance].

… [Deal with the evidence relied upon as to knowledge by the Crown and the accused and opposing submissions and also, if in issue, when that knowledge was acquired and the voluntariness of the accused’s act in allowing himself or herself to be so carried, which may arise, for example, if the knowledge was acquired whilst the conveyance was in motion and he or she could not safely get out or off.] ]

Criminal Trial Courts Bench Book — Other offences