Steel, Alex --- "Taking Possession: The Defining Element of Theft?" [2008] MelbULawRw 32; (2008) 32(3) Melbourne University Law Review 1030
[*] Senior Lecturer, Faculty of Law, The University of New South Wales. I would like to thank David Brown, Stuart Green and Ian Leader‑Elliott for reading and commenting on earlier drafts of this article, and Christina Trahanas for her invaluable research assistance. All errors are of course my very own.
[1] It had previously been codified in the Larceny Act 1916, 6 & 7 Geo 5, c 50.
[2] For the purposes of this article, ‘stealing’ is used as a general term to describe the crime that is legally defined as either larceny or theft. It is used when a general comment is being made about the gist of the crime without reference to its specific definitional form.
[3] See generally Criminal Law Revision Committee (‘CLRC’), House of Commons, Eighth Report: Theft and Related Offences, Cmnd 2977 (1966).
[4] See Theft Act 1968 (UK) c 60, s 5(1). This also permits the offence to be broadened so as to include the stealing of intangible forms of property. For the purposes of this article it is assumed that theft is limited to tangible forms of property. For an argument as to why this should be the case, see Alex Steel, ‘Problematic and Unnecessary? Issues with the Use of the Theft Offence to Protect Intangible Property’ [2008] SydLawRw 28; (2008) 30 Sydney Law Review 575.
[5] It does so in a non‑codified form, relying entirely on common law precedent for the elements of the offence: see Crimes Act 1900 (NSW) s 117.
[6] Criminal Code Act 1899 (Qld) ss 390–1.
[7] Criminal Code Act Compilation Act 1913 (WA) ss 370–1, 378.
[8] Criminal Code Act 1924 (Tas) ss 226–7, 234.
[9] This involves taking and carrying away, that is, a physical removal of property: C R Williams, Property Offences (3rd ed, 1999) 22–6, 57–60. See, eg, R v Johnston [1973] Qd R 303, 304 (Hanger ACJ); R v McDonald [1992] 2 Qd R 634, 644–5 (Williams and Cooper JJ); R v Davies [1970] VicRp 3; [1970] VR 27, 29 (Gowans J for Winneke CJ, Gowans and Newton JJ).
[10] This involves ‘some dealing with … goods in a manner inconsistent with the rights of the true owner’: Williams, Property Offences, above n 9, 58. See, eg, R v Hally [1962] Qd R 214, 228 (Gibbs J); R v Angus [2000] QCA 29 (Unreported, McMurdo P, McPherson and Pincus JJA, 18 February 2000); Rogers v Arnott [1960] 2 QB 244.
[11] The theft offence in s 1(1) of the Theft Act 1968 (UK) c 60 is reproduced essentially unchanged in s 72 of the Crimes Act 1958 (Vic). A slightly modified version of the English theft offence is enacted in the Criminal Code Act 1995 (Cth) sch 1 s 131.1 and the Criminal Code 2002 (ACT) s 308: see Model Criminal Code Officers Committee of the Standing Committee of Attorneys‑General, Model Criminal Code — Chapter 3: Theft, Fraud, Bribery and Related Offences — Final Report (1995). More substantially modified forms of the Theft Act’s theft offence appear in s 134 of the Criminal Law Consolidation Act 1935 (SA) and s 209 of the Criminal Code Act (NT).
[12] Steel, ‘Issues with the Use of the Theft Offence to Protect Intangible Property’, above n 4.
[13] These jurisdictions are NSW, Queensland, Tasmania and Western Australia.
[14] These jurisdictions are NSW, Queensland and Tasmania.
[15] The offence does not apply to land or things attached to land: see, eg, Billing v Pill [1954] 1 QB 70, 74–5 (Lord Goddard CJ). It also does not apply to intangible forms of property such as debts: see, eg, Croton v The Queen [1967] HCA 48; (1967) 117 CLR 326, 331 (Barwick CJ).
[16] This means wild animals cannot be stolen: see, eg, R v Townley (1871) LR 1 CCR 315, 316–17 (Bovill CJ). Moreover, owners can be guilty of stealing from bailees: see, eg, Rose v Matt [1951] 1 KB 810, 814 (Lord Goddard CJ).
[17] See, eg, Anic v The Queen [1993] SASC 4159; (1993) 61 SASR 223, 231–2 (Bollen J), which concerned the stealing of illegal drugs.
[18] See, eg, R v Cherry (1803) 2 East PC 556; R v Bloxham (1944) 29 Cr App R 37; R v Davies [1970] VicRp 3; [1970] VR 27, 29 (Gowans J for Winneke CJ, Gowans and Newton JJ).
[19] See, eg, Kennison v Daire [1986] HCA 4; (1986) 160 CLR 129.
[20] See, eg, R v Holloway (1848) 1 Den 370; 169 ER 285.
[21] See, eg, R v Cabbage [1815] EngR 287; (1815) Russ & Ry 292; 168 ER 809; R v Weatherstone (Unreported, Supreme Court of New South Wales, Court of Criminal Appeal, Street CJ, Hunt and Finlay JJ, 20 August 1987). If claim of right is raised, this must also be disproved by the prosecution: see, eg, R v Fuge [2001] NSWCCA 208; (2001) 123 A Crim R 310, 315 (Wood CJ at CL).
[22] See, eg, Crimes Act 1900 (NSW) s 125. For examples of fraudulent conversion, see R v Dunbar [1962] NZPoliceLawRp 29; [1963] NZLR 253 (listing a borrowed boat in a schedule of chattel securities to secure a bank loan); R v Russell [1977] 2 NZLR 20 (painting a hired air compressor a different colour); R v Wakeman (1913) 8 Cr App R 18 (refusing to return a loaned bicycle).
[23] See, eg, Crimes Act 1900 (NSW) s 157. For examples of embezzlement, see R v Wright (1858) 7 Cox CC 413 (bank tellers who pocket deposits instead of placing them in the till); R v Davenport [1954] 1 All ER 602 (employees who pay the cheques of their employers’ creditors into their own bank accounts); R v Campbell [2001] NSWCCA 162 (Unreported, Dowd J and Smart AJ, 9 April 2001) (employees who misappropriate the proceeds of cheques cashed on behalf of employers). See generally R v Bazeley [1730] EngR 140; (1799) 2 Leach 835; 168 ER 517.
[24] In this article, the term ‘fraud offences’ is used to describe such offences generally, and ‘false pretences’ to describe the offences enacted to complement the common law offence of larceny.
[25] In the modern criminal law, fraud offences (as a category) are now better seen as conceptually separate from larceny offences. This is because the newer forms of criminal fraud no longer retain any necessary relationship to possession or even property: see, eg, Crimes Act 1900 (NSW) s 178BA; Criminal Code Act 1899 (Qld) s 408C; Fraud Act 2006 (UK) c 35 (‘Fraud Act’). However, in their original form they were seen as extensions to larceny, distinct only in the manner in which the property was obtained. Such forms of fraud are still in force in NSW: see, eg, Crimes Act 1900 (NSW) s 179.
[26] See Crimes Act 1900 (NSW) ss 164–78.
[27] Theft Act 1968 (UK) c 60, s 4.
[28] Theft Act 1968 (UK) c 60, s 5.
[29] Lawrence v Metropolitan Police Commissioner [1971] UKHL 2; [1972] AC 626, 632 (Viscount Dilhorne).
[30] R v Morris [1984] UKHL 1; [1984] AC 320, 332 (Lord Roskill).
[31] DPP v Gomez [1992] UKHL 4; [1993] AC 442, 495 (Lord Lowry).
[32] For Australian commentary on the problems of an overly broad notion of appropriation, see C R Williams, ‘Reining in the Concept of Appropriation in Theft’ [2003] MonashULawRw 12; (2003) 29 Monash University Law Review 261.
[33] [2000] UKHL 53; [2001] 2 AC 241.
[34] Ibid 251 (Lord Steyn).
[35] R v Holloway (1848) 1 Den 370, 375; 169 ER 285, 287 (Parke B).
[36] See, eg, R v Beecham (1851) 5 Cox CC 181 (return of an expired ticket).
[37] See, eg, R v Smails (1957) 74 WN (NSW) 150 (cutting railway sleepers in half).
[38] See, eg, Lowe v Hooker [1987] Tas R 153 (an attempt to get a purchase refund on stolen goods).
[39] For the legislative history of s 6, see J R Spencer, ‘The Metamorphosis of Section 6 of the Theft Act’ [1977] Criminal Law Review 653; John Smith, ‘The Sad Fate of the Theft Act 1968’ in William Swadling and Gareth Jones (eds), The Search for Principle: Essays in Honour of Lord Goff of Chieveley (1999) 97.
[40] See Alex Steel, ‘Permanent Borrowing and Lending: A New View of Section 6 Theft Act 1968’ (2008) 17 Nottingham Law Journal 3.
[41] R v Fernandes [1996] 1 Cr App R 175, 188 (Auld LJ for Auld LJ, Mantell and Sachs JJ). For a critique of this approach and an alternative interpretation, see ibid.
[42] For a detailed examination of how the section has been interpreted and alternatives, see Steel, ‘Permanent Borrowing and Lending’, above n 40.
[43] [1996] UKHL 13; [1996] AC 815.
[44] See ibid 834 (Lord Goff), 841 (Lord Jauncey), where the reasoning of their Lordships appears to apply more broadly than just to transfers of bank credits. Greg Tolhurst suggests that all transfers of property involve the extinguishment/creation of property rights but that in many cases there may be an additional non‑property right that passes in an assignment, such as a right to contractual performance: see Greg Tolhurst, The Assignment of Contractual Rights (2006) 36–7.
[45] If correct, this might also be applicable to transfers of property rights applying to tangible property. However, the insistence on a taking of possession argued for in this article would allow theft of tangible property to relate to transfers of the ‘thing’ and not the associated property rights. For cases in which such an analysis was adopted, see, eg R v Petronius‑Kuff [1983] 3 NSWLR 178, 181 (Street CJ); Byrnes v Burgess [1999] NSWSC 419 (Unreported, Adams J, 5 May 1999) [3]; R v Arnold [1883] NSWLawRp 57; (1883) 4 LR (NSW) 347, 352 (Martin CJ).
[46] In fact, a majority of the House of Lords considers this to be desirable. In R v Hinks [2000] UKHL 53; [2001] 2 AC 241, 252–3, Lord Steyn stated:
If the law is restated by adopting a narrower definition of appropriation, the outcome is likely to place beyond the reach of the criminal law dishonest persons who should be found guilty of theft. The suggested revisions would unwarrantably restrict the scope of the law of theft and complicate the fair and effective prosecution of theft. … My Lords, if it had been demonstrated that in practice Lawrence and Gomez were calculated to produce injustice that would have been a compelling reason to revisit the merits of the holdings in those decisions. That is however, not the case. In practice the mental requirements of theft are an adequate protection against injustice.
[47] Law Commission, England and Wales, Legislating the Criminal Code — Fraud and Deception: A Consultation Paper, Consultation Paper No 155 (1999) 31.
[48] Ibid 30.
[50] Ibid.
[51] Ibid 17–18.
[52] For discussion of the elements of common law robbery, see, eg, R v Gnosil [1824] EngR 432; (1824) 1 Car & P 304; 171 ER 1206; Smith v Desmond [1965] AC 960; J W Cecil Turner, Russell on Crime (12th ed, 1964) vol 2, 851–67; Williams, Property Offences, above n 9, 192–202.
[53] For discussion of the elements of common law burglary, see, eg, Turner, above n 52, vol 2, ch 45; Williams, Property Offences, above n 9, 214–26.
[54] George P Fletcher, Rethinking Criminal Law (1978) 31.
[55] Regardless of whether Fletcher’s analysis can be supported historically, the idea of manifest criminality is a useful heuristic device with which to analyse the law. For alternative interpretations based on the development of a market economy, see Jerome Hall, Theft, Law and Society (2nd ed, 1952). For a class‑based protection of property interests, see Michael E Tigar, ‘The Right of Property and the Law of Theft’ (1984) 62 Texas Law Review 1443. For a critique of Fletcher’s thesis, see Lloyd L Weinreb, ‘Manifest Criminality, Criminal Intent, and the “Metamorphosis of Larceny”’ (1980) 90 Yale Law Journal 294. For a response, see George P Fletcher, ‘Manifest Criminality, Criminal Intent, and the Metamorphosis of Lloyd Weinreb’ (1980) 90 Yale Law Journal 319.
[56] Tigar, above n 55, 1448 (citations omitted).
[57] Fletcher, Rethinking Criminal Law, above n 54, 232–3.
[58] Following the Norman conquest, access to the jurisdiction of the curia regis required an allegation that the taking had been ‘vi et armis’: James Barr Ames, Lectures on Legal History and Miscellaneous Legal Essays (1913) 37–8. The civil action of trespass emerged at a later date as an alternative to an appeal of larceny: at 48–9. See also Carrier’s Case (1473) Y B Pasch 13, Edw IV, f 9, pl 5; R v Meeres [1794] EngR 1746; (1794) 1 Show KB 50; 89 ER 441.
[59] The appeal of felony for larceny is generally considered to be the precursor to the civil writ of trespass: see, eg, Sir James Fitzjames Stephens, A History of the Criminal Law of England (1883) vol 3, 132–4; Theodore F T Plucknett, A Concise History of the Common Law (5th ed, 1956) 369.
[60] See George P Fletcher, ‘The Metamorphosis of Larceny’ (1976) 89 Harvard Law Review 469, 473, where Fletcher states: ‘The premise of the traditional approach to larceny was that it was possible to perceive thievery directly as an event in the world and that the courts should rely on this unanalyzed perception in framing the law of theft’. See also Stephens, above n 59, vol 3, 129, who notes that a person was presumptively a thief if they travelled though a wood without shouting or blowing a horn.
[61] Fletcher, Rethinking Criminal Law, above n 54, 115–16. Fletcher argues that such crimes are rare in modern criminal law but sees the original form of common law larceny as the paradigmatic form of such crimes: at 60–1.
[62] Ibid 82–3.
[63] At common law, ownership was an unknown term. Possession was the highest form of property right a citizen could have, with such possessory rights being seen in later times to be divided into lawful and unlawful possession: see generally Frederick Pollock and Robert Samuel Wright, An Essay on Possession in the Common Law (1888).
[64] See, eg, Michael E Tigar and Madeleine R Levy, Law and the Rise of Capitalism (1st ed, 1977) 66–7.
[65] Pollock and Wright, above n 63.
[66] Tigar, above n 55, 1444, 1446–8, 1452–6; Tigar and Levy, above n 64, 80–96.
[67] Fletcher, Rethinking Criminal Law, above n 54, 62.
[68] Fletcher speculates that ‘it may be that the institution was well suited for a form of commercial life in which relationships with strangers were seen as private matters, subject to autonomous regulation by contract and therefore properly exempt from the jurisdiction of the criminal courts’: ibid 65.
[69] Ibid 145.
[70] Oddly, given the importance of this theoretical realignment to his thesis, Fletcher does not devote much space to a discussion or justification of this part of the argument.
[71] Fletcher, Rethinking Criminal Law, above n 54, 101 (citations omitted).
[72] Inchoate offences, such as attempts and conspiracies, are strongly tied to this principle: ibid 166–74.
[73] This does not mean that intent did not play an important part in the offence of larceny prior to its metamorphosis. Intent has always been a central element. The manifestly criminal nature of the action, however, simply meant that the requisite intent was assumed. Thus, issues of intent were only raised as a defence to exculpate what otherwise appeared to be a criminal action: ibid 85–6, 117. See also Fletcher, ‘The Metamorphosis of Larceny’, above n 60, 476 (citations omitted), where he states:
Because the required act provided presumptive evidence of intent, the issue was seldom, if ever, litigated. If the issue of intent was called into question, it was because appearances were deceptive. Someone might have looked like a thief without having been one in fact. Like the early use of the fault concept in torts, the issue of non‑intent functioned as an excuse that could defeat the normal inference from appearances.
A third principle, the principle of harmful consequences, provides a basis for criminal liability where the harm caused by the act is such that liability arises without the need to establish either a firm intent to do the harm or a particular method by which it was caused. For Fletcher, murder is the prime example of this type of crime: ibid 235.
[74] [1730] EngR 164; (1779) 1 Leach 212; 168 ER 208.
[75] (1848) 1 Den 387; 169 ER 293.
[76] Fletcher, Rethinking Criminal Law, above n 54, 120.
[77] Ibid 121.
[78] Ibid 99, 233.
[79] For an account of the introduction of these statutes, see Hall, above n 55, ch 2.
[80] Fletcher, Rethinking Criminal Law, above n 54, 122–4.
[81] Fletcher admits that the offence of false pretences does not fit neatly into his story of the shift from manifest to subjective criminality. Even in its most restrictive form (a demonstrable lie about an existing fact), such a lie would not be manifest to a bystander. In fact, Fletcher describes lies as to existing facts as examples of ‘external criminality’, but not ‘manifest criminality’, because they can only be demonstrated to be lies after further enquiry: ibid 124.
[82] Fletcher draws on German embezzlement law for his argument, suggesting that embezzlement has never really been seen by common lawyers as based on a breach of trust because the emphasis has focused on the harm caused, not the nature of the action. By concentrating on the harm, Fletcher argues that it was possible to see embezzlement as being merely a variant of larceny because both protect property interests: ibid 123–4.
[83] Ibid 34–5.
[84] Ibid.
[85] Fletcher considers this account adrift on the ‘simplistic shoals of historic determinism’: ibid
59–60. See also 68–70. Jerome Hall’s account is preferred by Tigar and Weinreb: see Tigar, above n 55, 1444, 1452; Weinreb, above n 55, 302. The argument developed in this article does not require a choice between the accounts because the historic development of larceny is merely a preliminary basis for development of a theoretical position.
[87] Ibid 39; Fletcher, Rethinking Criminal Law, above n 54, 23, 44–9.
[88] [1730] EngR 164; (1779) 1 Leach 212; 168 ER 208.
[89] See, eg, Graham Ferris, ‘The Origins of “Larceny by a Trick” and “Constructive Possession”’ [1998] Criminal Law Review 175; Joseph H Beale Jr, ‘The Borderland of Larceny’ (1892) 6 Harvard Law Review 244; Turner, above n 52, vol 2, 921–6, 931, 934, 941–2.
[90] In Young v The King [1789] EngR 2389; (1789) 3 TR 98, 102–3; [1789] EngR 2389; 100 ER 475, 478 (Lord Kenyon CJ), the King’s Bench reinterpreted the Statute of 30 Geo II to amount to a general false pretences offence. This widened the offence from a specific prohibition on the use of false weights: see Hall, above n 55, 45–52.
[91] R v Kilham (1870) LR 1 CCR 261, 263 (Bovill CJ for Bovill CJ, Willes, Byles and Hannen JJ and Cleasby B).
[92] See David Ormerod, Smith and Hogan Criminal Law (11th ed, 2005) 651–8; CLRC, above n 3, 20. See, eg, DPP v Gomez [1992] UKHL 4; [1993] AC 442.
[94] See Ormerod, Smith and Hogan Criminal Law, above n 92, 655–6.
[95] Criminal Code Act 1995 (Cth) sch 1 ss 135.1–4; Criminal Code 2002 (ACT) ss 332–4; Crimes Act 1900 (NSW) s 178BA; Criminal Code Act (NT) s 227; Criminal Code Act 1899 (Qld) s 408C; Criminal Code Act 1924 (Tas) s 252A; Crimes Act 1958 (Vic) s 82; Criminal Code Act Compilation Act 1913 (WA) s 409. See further Alex Steel, ‘Money for Nothing, Cheques for Free? The Meaning of “Financial Advantage” in Fraud Offences’ [2007] MelbULawRw 8; (2007) 31 Melbourne University Law Review 201.
[96] See, eg, Criminal Code Act 1899 (Qld) s 408C. For discussion of these offences, see Alex Steel, ‘General Fraud Offences in Australia’ (Working Paper No 55, The University of New South Wales Faculty of Law Research Series, 2007).
[97] See generally David Ormerod and David Huw Williams, Smith’s Law of Theft (9th ed, 2007) 127.
[98] Law Commission, England and Wales, Fraud, Report No 276, Cm 5560 (2002) 61.
[99] Fraud Act 2006 (UK) c 35, s 4.
[100] See further David Ormerod, ‘The Fraud Act 2006 — Criminalising Lying?’ [2007] Criminal Law Review 193. For a compelling argument that fraud itself contains a range of distinctly different offences, see Stuart P Green, Lying, Cheating and Stealing: A Moral Theory of White‑Collar Crime (2007).
[101] This is on the basis that theft is an offence that is inextricably tied to property rights infringements whereas fraud is not. For an alternative perspective, see, eg, Alan L Bogg and John Stanton‑Ife, ‘Protecting the Vulnerable: Legality, Harm and Theft’ (2003) 23 Legal Studies 402; Simon Gardner, ‘Appropriation in Theft: The Last Word’ (1993) 109 Law Quarterly Review 194. These perspectives arguably do not militate against a disaggregation of theft into separate offences; instead, they suggest further bases for offences. See also below n 192.
[102] This was a key issue in Carrier’s Case (1473) Y B Pasch 13, Edw IV, f 9, pl 5.
[103] For example, larceny by bailee was a legislative innovation which deems a misappropriation by a bailee as amounting to larceny: see, eg, Crimes Act 1900 (NSW) s 125.
[104] R v Townley (1871) LR 1 CCR 315; Billing v Pill [1954] 1 QB 70.
[105] Rose v Matt [1951] 1 KB 810.
[106] (1473) Y B Pasch 13, Edw IV, f 9, pl 5.
[107] [1803] EngR 416; (1678) T Raym 275; 83 ER 142.
[108] [1730] EngR 164; (1779) 1 Leach 212; 168 ER 208. For a detailed examination of the circumstances in which the case was decided, see Ferris, above n 89, 179.
[109] (1848) 1 Den 387; 169 ER 293.
[110] See, eg, R v Reed (1854) Cox CC 284; Williams v Phillips (1957) 41 Cr App R 5, 9 (Lord Goddard CJ).
[111] ‘The problem is that except in the very early stages of the common law, possession has sometimes been more and sometimes less than what meets the eye. … The concept of possession has matured (or degenerated, depending on your taste) from a natural to a legal fact’: Fletcher, Rethinking Criminal Law, above n 54, 6. A situation which looks like possession, yet is not, is described as custody.
[112] See, eg, Crimes Act 1900 (NSW) ss 124–5, 157, 162, 165–6, 168–70, 172–3, 178A, 527.
[113] Of course, this is an academic viewpoint with the advantage of hindsight. It is unlikely that any such distinction was consciously articulated.
[114] See generally Hall, above n 55, 35–40, 61–6.
[115] Slattery v The King (1905) 2 CLR 546, 562 (Griffith CJ for Griffith CJ, Barton and O’Connor JJ).
[116] See R v Ward [1938] NSWStRp 5; (1938) 38 SR (NSW) 308, 316 (Jordan CJ).
[117] For detailed discussion of this issue, see, eg, A P Simester and G R Sullivan, ‘On the Nature and Rationale of Property Offences’ in R A Duff and Stuart P Green (eds), Defining Crimes: Essays on the Special Part of the Criminal Law (2005) 168. Cf Alex Steel, ‘The Harms and Wrongs of Stealing: The Harm Principle and Dishonesty in Theft’ [2008] UNSWLawJl 38; (2008) 31 University of New South Wales Law Journal 712.
[118] In fraud offences, possession is lost with consent. In offences relating to misappropriation by bailees etc, possession is lost with consent prior to the taking. Larceny by a servant is probably best seen as an example of a non‑consensual taking. Although the employee has control of the property, if the employer interrupts the taking, the employer is likely to object to the taking, which raises the possibility of violence. Due to issues with proving the element of lack of consent, subsidiary legislation is often enacted providing for a lesser penalty for dishonest retention of property: see, eg, Crimes Act 1900 (NSW) s 124.
[119] Fletcher, Rethinking Criminal Law, above n 54, 34–5; Hall, above n 55, 36–40.
[120] Fletcher, Rethinking Criminal Law, above n 54, 34–5.
[121] See, eg, R v Wheatly [1761] EngR 31; (1761) 2 Burr 1125, 1127–8; [1761] EngR 31; 97 ER 746, 748 (Lord Mansfield).
[122] Fletcher argues that embezzlement is an underdeveloped category of offence in English law. Embezzlement can be seen as a crime of breach of trust, but it can also be extended to amount to a crime of dishonest appropriation. Fletcher describes how German criminal law views dishonest finders as guilty of embezzlement on the basis that embezzlement is a general appropriation offence, whereas larceny is the more specific offence of taking possession of tangible goods: Fletcher, Rethinking Criminal Law, above n 54, 18–20.
[123] See, eg, R v Thurborn (1848) 1 Den 387; 169 ER 293 and the discussion of the case in ibid
104–7.
[124] For a discussion of this development, see David Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process of New South Wales (4th ed, 2006) 1002–5.
[125] See, eg, R v Thurborn (1848) 1 Den 387; 169 ER 293.
[126] For reviews of the relevant case law, see R v Potisk (1973) 6 SASR 389; Ilich v The Queen [1987] HCA 1; (1987) 162 CLR 110.
[127] See South Australia, Parliamentary Debates, House of Assembly, 22 August 2002, 1307 (M J Atkinson, Attorney‑General).
[128] A parallel may be drawn with the growth of civil liability for unconscionable behaviour. This growth demonstrates that the law requires basic standards of behaviour in transactional situations. Whether this is properly a role for the criminal law is unclear. It might be that mistake cases could constitute the basis for a separate offence in a disaggregated notion of theft: see further above n 101.
[130] Ibid 12.
[131] Ibid 19 (citations omitted).
[132] The current edition of the text is Ormerod and Williams, above n 97, 80. Cf A P Simester and G R Sullivan, Criminal Law Theory and Doctrine (3rd ed, 2007) 449, who suggest that control adds nothing and can only mean a form of possessory right.
[133] Horsley v Phillips Fine Art Auctioneers Pty Ltd (1995) 7 BPR 97557, 14 371–2 (Santow J). Cf Moors v Burke [1919] HCA 32; (1919) 26 CLR 265, 274 (Isaacs J for Isaacs, Gavan Duffy and Rich JJ). See also E L G Tyler and N E Palmer, Crossley Vaines’ Personal Property (5th ed, 1973) 49, 54.
[134] Horsley v Phillips Fine Art Auctioneers Pty Ltd (1995) 7 BPR 97557, 14 371–2 (Santow J); Moors v Burke [1919] HCA 32; (1919) 26 CLR 265, 270 (Isaacs J for Isaacs, Gavan Duffy and Rich JJ).
[135] A T H Smith, Property Offences: The Protection of Property through the Criminal Law (1994) 100–1. It seems that contractual relationships to property are now included under s 5(3): see below Part V(B).
[136] Model Criminal Code Officers Committee of the Standing Committee of Attorneys‑General, above n 11.
[137] At s 14.5, the Model Criminal Code specifically exempts constructive trusts from theft on the basis that the civil notions of unconscionability are not sufficiently culpable to constitute theft, and that the principles surrounding the existence of constructive trusts are so vague that they offend the principle that the criminal law should be certain and knowable in advance: ibid 50–5. There is no such exclusion in Victoria. See further Steel, ‘Issues with the Use of the Theft Offence to Protect Intangible Property’, above n 4.
[138] See, eg, R v Clowes [No 2] [1994] 2 All ER 316 (‘Clowes’); Mitchell C Davis, ‘After R v Clowes (No 2): An Act of Theft Empowered — A Jury Impoverished?’ (1997) 61 Journal of Criminal Law 99; Steel, ‘Issues with the Use of the Theft Offence to Protect Intangible Property’, above n 4.
[140] See, eg, Criminal Law Consolidation Act 1935 (SA) s 184, repealed by Criminal Law Consolidation (Offences of Dishonesty) Amendment Act 2002 (SA).
[141] See, eg, Crimes Act 1900 (NSW) s 178A.
[142] [1978] HCA 35; (1978) 139 CLR 315, 333 (Gibbs J).
[143] DPP v Huskinson (1988) 20 HLR 562, 564 (Stuart‑Smith LJ); R v Gilks [1972] EWCA Crim 2; [1972] 3 All ER 280, 283 (Cairns LJ). See also R v Hall [1973] QB 126, 132 (Edmund‑Davies LJ for Edmund‑Davies and Stephenson LJJ and Boreham J); Wakeman v Farrar (Unreported, High Court of Justice, Queen’s Bench Divisional Court, Lord Widgery CJ, Ashworth and Eveleigh JJ, 27 November 1973), noted in [1974] Criminal Law Review 136.
[144] [1997] 4 All ER 1, 9–10 (Potter LJ for Potter LJ, Owen J and Judge Tucker).
[145] In the Divisional Court decision of R v Cullen (1974) (Unreported, discussed in Ormerod and Williams, above n 97, 93), it was held that misappropriation of £20 by the victim’s mistress amounted to theft. The Court rejected an argument that such a situation was a domestic transaction and not legally enforceable.
[146] [1997] EWCA Crim 3031 (Unreported, Phillips LJ, Kay and Moses JJ, 21 November 1997).
[147] Ibid.
[149] Ibid 301 (Farquharson LJ for Farquharson LJ, Garland and Ognall JJ).
[151] Ibid 330–1 (Watkins LJ for Watkins LJ, Scott Baker and Auld JJ).
[153] Macleod v The Queen [2003] HCA 24; (2003) 214 CLR 230, 245 (Gleeson CJ, Gummow and Hayne JJ).
[154] See Ian Leader‑Elliott, Commonwealth Attorney‑General’s Department, The Commonwealth Criminal Code: A Guide for Practitioners (2002) 203–17.
[155] [2010] EWCA Crim 209; [1999] 1 Cr App R 427, 432 (Maurice Kay J for Rose LJ, Scott Baker and Maurice Kay JJ).
[156] [1996] UKHL 13; [1996] AC 815.
[157] Klineberg [2010] EWCA Crim 209; [1999] 1 Cr App R 427, 433 (Maurice Kay J for Rose LJ, Scott Baker and Maurice Kay JJ).
[158] R v Adams [2003] EWCA Crim 3620 (Unreported, Laws LJ, Pitchford and Williams JJ, 21 November 2003); Re Kumar (Unreported, Divisional Court, Simon Brown LJ and Turner J, 15 December 1999), noted in [2000] Criminal Law Review 504.
[159] See Ormerod and Williams, above n 97, 89, who suggest that R v Preddy precludes reliance on s 5(3). However, R v Preddy [1996] UKHL 13; [1996] AC 815 may not apply, since it held that such choses in action cannot be ‘obtained’ from another. Similar reasoning applies to ‘receives’. But there is no requirement in s 5(3) that the property received come ‘from another’, merely that it be ‘on account’ of another; arguably, the creation of the new right is still received by the accused. Thus it can be said that one ‘receives’ a credit in one’s account, even if it never existed elsewhere. In contrast to the emphasis in ‘obtaining’, the emphasis in receiving is on the fact that it was not previously in the accused’s control.
[160] (Unreported, Divisional Court, Tuckey LJ and Moses J, 1 November 1999), noted in [2000] Criminal Law Review 411.
[161] See Ormerod and Williams, above n 97, 90–1, who suggest that a conviction could have been based on an obligation owed to the colleagues.
[162] This is the basis of the analysis in Klineberg [2010] EWCA Crim 209; [1999] 1 Cr App R 427, 433 (Maurice Kay J for Rose LJ, Scott Baker and Maurice Kay JJ).
[163] See, eg, R v Arnold [1997] 4 All ER 1.
[164] Jus tertii is a defence to a claim for possession by establishing that a third party has a better right than the claimant. Its availability is highly restricted, and is not available in conversion where the defendant has derived the goods from the plaintiff: see, eg, Jeffries v The Great Western Railway Co [1856] EngR 81; (1856) 5 El & Bl 802; 119 ER 680; Russell v Wilson [1923] HCA 60; (1923) 33 CLR 538, 547 (Isaacs and Rich JJ); The Anderson Group Pty Ltd v Tynan Motors Pty Ltd [2006] NSWCA 22; (2006) 65 NSWLR 400, 413 (Young CJ in Eq).
[165] See Tyler and Palmer, above n 133, 45–54; N E Palmer, ‘The Nature and Elements of Bailment’ in N E Palmer (ed), Bailment (2nd ed, 1991) 1, 101–4.
[166] The ‘defence’ of claim of right — which must be disproved by the prosecution if raised by the accused — is based on a subjective belief as to the possessory rights. It thus operates irrespective of any issues of jus tertii. Whether those property rights actually exist is irrelevant. Cf R v Fuge [2001] NSWCCA 208; (2001) 123 A Crim R 310, 315 (Wood CJ at CL), where it was held that there was insufficient evidence to raise the defence as an issue.
[167] Since relativity of title is a common law doctrine, no account was taken of any equitable interests that the owner might have had over the possessor’s interests.
[168] See, eg, Crimes Act 1900 (NSW) s 178A.
[169] See, eg, Crimes Act 1900 (NSW) ss 156–8.
[170] See, eg, Crimes Act 1900 (NSW) s 172.
[171] See, eg, Crimes Act 1900 (NSW) s 173.
[172] Since such takings involve an act of legal self‑help, the accused has presumptively resolved any relativity of title issues in their favour. If the right to take possession is not present at the time of the taking, larceny will have occurred; thus, if the possessor has any right greater than that of a bailee at will, larceny is likely to have occurred.
[173] See further Steel, ‘Issues with the Use of the Theft Offence to Protect Intangible Property’, above n 4.
[174] That is, the act falls within the meaning of an appropriation.
[175] See, eg, R v Hinks [2000] UKHL 53; [2001] 2 AC 241.
[177] Ormerod and Williams, above n 97, 93; Smith, above n 135, 113–14.
[178] (Unreported, Manchester Crown Court, Judge Da Cunha, 20 December 1972), noted in [1973] Criminal Law Review 253.
[180] In R v Meredith (Unreported, Manchester Crown Court, Judge Da Cunha, 20 December 1972), the police had taken the car on the basis of a statutory power to do so, but the effect was similar to that of a bailee at will: see note in [1973] Criminal Law Review 253. In Turner [1971] 2 All ER 441, 442 (Lord Parker CJ), the Court directed the jury to disregard any issue of lien.
[181] Turner [1971] 2 All ER 441, 443.
[182] Simester and Sullivan, Criminal Law Theory and Doctrine, above n 132, 450.
[183] Ormerod, Smith and Hogan Criminal Law, above n 92, 676.
[184] A beneficiary of a discretionary trust will often have no property interests in trust property prior to the exercise of the trustee’s discretion to direct property to the beneficiary. Without this additional subsection, it might be possible for a trustee to consent to an appropriation of property, subject to a discretionary trust, in circumstances where the person appropriating the property was not guilty of theft on the basis that the property did not belong to anyone other than the consenting trustee.
[185] See Crimes Act 1900 (NSW) ss 164–78.
[186] It is conceded, however, that if the beneficiaries are aware of the trustee’s misdeeds, there might well be violence. Such violence, however, would be likely to arise because of the very lack of a legal right of the beneficiaries to directly restrain the trustee.
[187] Crimes Act 1900 (NSW) s 172.
[188] Consequently, appropriation of the property need not amount to any interference with the property interests of the other. All the relevant property interests may be held by the accused.
[189] In order to assert a greater right, the claimant would need to obtain a court ruling in their favour.
[190] That is, the doctrine of relativity of title meant that as between the victim in original possession of the property and the thief, the victim had a better property right.
[191] See, eg, Criminal Code Act 1899 (Qld) s 390.
[192] Recognising that there is a separate conceptual basis for conversion type offences allows for a discussion of the nature of the trust or obligation that has to be breached in order to amount to a crime. It may well be that there is an appropriate place for enactment of offences where the victim consensually transfers property without imposing a trust, but where it is considered the transferee unconscionably exploits the vulnerability of the transferor (cf Bogg and Stanton‑Ife, above n 101). Disaggregating theft not only makes this extension easier to justify, but also provides a clear environment in which to debate the boundaries of criminalisation of such behaviour. Similar issues may apply to mistake: see above n 126.