Victorian Consolidated Legislation

Crimes Act 1958 - SECT 73

Further explanation of theft

73. Further explanation of theft



(1) This section has effect as regards the interpretation and operation of
section 72 and, except as otherwise provided in this Division, shall apply
only for the purposes of that section and not otherwise.

(2) A person's appropriation of property belonging to another is not to be
regarded as dishonest-

   (a)  if he appropriates the property in the belief that he has in law the
        right to deprive the other of it, on behalf of himself or of a third
        person; or





   (b)  if he appropriates the property in the belief that he would have the
        other's consent if the other knew of the appropriation and the
        circumstances of it; or

   (c)  (except where the property came to him as trustee or personal
        representative) if he appropriates the property in the belief that the
        person to whom the property belongs cannot be discovered by taking
        reasonable steps.

(3) A person's appropriation of property belonging to another may be dishonest
notwithstanding that he is willing to pay for the property.

(4) Any assumption by a person of the rights of an owner amounts to an
appropriation, and this includes, where he has come by the property
(innocently or not) without stealing it, any later assumption of a right to it
by keeping or dealing with it as owner.

(5) Where property or a right or interest in property is or purports to be
transferred for value to a person acting in good faith, no later assumption by
him of rights which he believed himself to be acquiring shall, by reason of
any defect in the transferor's title, amount to theft of the property.

(6) A person cannot steal land, or things forming part of land and severed
from it by him or by his directions, except in the following cases, that is to
say-

   (a)  when he is a trustee or personal representative, or is authorized by
        power of attorney, or as liquidator of a company, or otherwise, to
        sell or dispose of land belonging to another, and he appropriates the
        land or anything forming part of it by dealing with it in breach of
        the confidence reposed in him; or

   (b)  when he is not in possession of the land and appropriates any thing
        forming part of the land by severing it or causing it to be severed,
        or after it has been severed; or

   (c)  when, being in possession of the land under a tenancy, he appropriates
        the whole or part of any fixture or structure let to be used with the
        land.

For purposes of this subsection land does not include incorporeal
hereditaments; tenancy means a tenancy for years or any less period and
includes an agreement for such a tenancy, but a person who after the end of a
tenancy remains in possession as statutory tenant or otherwise is to be
treated as having possession under the tenancy, and "let" shall be construed
accordingly.

(7) Wild creatures, tamed or untamed, shall be regarded as property; but a
person cannot steal a wild creature not tamed nor ordinarily kept in
captivity, or the carcase of any such creature, unless either it has been
reduced into possession by or on behalf of another person and possession of it
has not since been lost or abandoned, or another person is in course of
reducing it into possession.

(8) Where property is subject to a trust, the persons to whom it belongs shall
be regarded as including any person having a right to enforce the trust, and
an intention to defeat the trust shall be regarded accordingly as an intention
to deprive of the property any person having that right.

(9) Where a person receives property from or on account of another, and is
under an obligation to the other to retain and deal with that property or its
proceeds in a particular way, the property or proceeds shall be regarded (as
against him) as belonging to the other.

(10) Where a person gets property by another's mistake, and is under an
obligation to make restoration (in whole or in part) of the property or its
proceeds or of the value thereof, then to the extent of that obligation the
property or proceeds shall be regarded (as against him) as belonging to the
person entitled to restoration, and an intention not to make restoration shall
be regarded accordingly as an intention to deprive that person of the property
or proceeds.

(11) Property of a corporation sole shall be regarded as belonging to the
corporation notwithstanding a vacancy in the corporation.

(12) A person appropriating property belonging to another without meaning the
other permanently to lose the thing itself is nevertheless to be regarded as
having the intention of permanently depriving the other of it if his intention
is to treat the thing as his own to dispose of regardless of the other's
rights; and a borrowing or lending of it may amount to so treating it if, but
only if, the borrowing or lending is for a period and in circumstances making
it equivalent to an outright taking or disposal.

(13) Without prejudice to the generality of subsection (12) where a person,
having possession or control (lawfully or not) of property belonging to
another, parts with the property under a condition as to its return which he
may not be able to perform, this (if done for purposes of his own and without
the other's authority) amounts to treating the property as his own to dispose
of regardless of the other's rights.

(14) Notwithstanding anything contained in subsection (12) in any proceedings-

   (a)  for stealing a motor vehicle or an aircraft proof that the person
        charged took or in any manner used the motor vehicle or aircraft
        without the consent of the owner or person in lawful possession
        thereof shall be conclusive evidence that the person charged intended
        to permanently deprive the owner of it; and

   (b)  for attempting to steal a motor vehicle or an aircraft proof that the
        person charged attempted to take or in any manner use the motor
        vehicle or aircraft without the consent of the owner or person in
        lawful possession thereof shall be conclusive evidence that the person
        charged intended to permanently deprive the owner of it.

Theft, robbery, burglary, &c.