Contents Offences s 117 s 117 s 117 s 125 Fraud s 192E s 192E s 192E Assault s 61 s 61 Aggravated Assaults s 59 s 33 s 428B(2) s 35 Sexual Assault

Transcription

1 Contents Offences... 2 Larceny (s 117; specific intent)... 2 Larceny by Finding (s 117)... 6 Larceny by Trick (s 117)... 7 Larceny by a bailee (s 125)... 8 Fraud... 9 Dishonestly Obtaining Property (s 192E)... 9 Dishonestly Obtaining Financial Advantage (s 192E) Dishonestly Causing a Financial Disadvantage (s 192E) Assault Battery (s 61; basic intent) Psychic Assault (s 61; basic intent) Aggravated Assaults Occasioning Actual Bodily Harm (s 59; basic intent) Wounding OR Grievous Bodily Harm with Intent (s 33; specific intent (s 428B(2)) Reckless GBH or Wounding (s 35; basic intent) Sexual Assault (s 61I ; basic intent) Complicity ss 345/346) Joint Principals in the First Degree Accessories After the Fact (s 347) Attempt (s 344A) Defences Intoxication Self-Defence Duress Necessity

2 1.1 Burden and standard of proof The prosecution must prove all elements of the offence beyond reasonable doubt (Woolmington) Offences 1.1 Charge Larceny (s 117; specific intent) Offence of larceny (Crimes Act 1900 (NSW) s 117) 1.2 Actus Reus (Ilich) 1. Taking and carrying away There must be asportation (the physical removal of the property said to be stolen) carrying off requirement (Lapier) Mere passive retention of the property will not be sufficient for larceny, there must be a positive act (Thomas) 2. Property capable of being stolen Property must be of some value, even the slightest value will be sufficient (Perry) Property must be moveable, it is not possible to steal land (Young) Property must have an owner (capable of ownership or possession) Abandoned property cannot be stolen (MacDonald) Abandonment occurs where owner has intentionally given up any interest in property (Donoghue v Coombe) It is not necessary to prove which precise objects are stolen, it is possible to charge D for stealing part of a larger whole (Russell v Smith) Low v Blease) 3. Which belonged to another Property may simultaneously belong to more than one person (Duyo John Anic v R) Property may be stolen from more than one person, even if the person is in possession or control unlawfully Possession Actual Possession (Moors v Burke) Where the person intends to possess the property The person has some degree of physical control over the property at some stage No requirement P is aware of property (Hibbert v McKiernan) Dishonest conversion may alter original innocent purchase to larceny (s 94AA; reversing common law position (Davies)) Constructive Possession Where D does not have actual possession, but has the legal right to assume possession whenever D wishes to do so (Ellis v Lawson; shop assistant taking radio) Whether constructive possession is maintained when handing over physical custody is a question of fact and degree (Chisser) Control Property can be stolen from someone who has control of it manual custody exclusive right or power Ownership Property can be stolen from an owner who is not in possess or control of property (Flood) An owner can be guilty of larceny if they take property from P who is in lawful possession 2

3 4. Without consent of the person in possession (Croton) The taking property must amount to a trespass in order for larceny to be committed (Ellis v Lawson) A taking against the will of the person in possession (Davies) Facilitation and Consent Where an owner facilitates or allows property to be taken away, it does not necessarily amount to consent (Kennison v Daire; the ATM facilitated the withdrawal, but it did not amount to consent) But, where the property is delivered personally, or at the ow cannot deny consent (Turvey; owner advised co-conspirator to go along with larcenous plot to entrap D) Turvey is compared to Martin v Puttick where D stole chops from supermarket by facilitation constructive possession of the bag) Threats Consent due to threats may be vitiated (Lovell) Consent due to mistake There are two types of mistake Unilateral D obtains property due to a mistake, and D is aware of the mistake at the time Mutual D obtains property due to mistake and only subsequently becomes aware of the mistake without consent of the person in possession In the case of mutual mistake D will lack the MR at the time of taking Contemporary approach Where D obtains property by mistake And D is only aware of the mistake (unilateral) Or D subsequently becomes aware of the mistake (mutual) D can only be charged with larceny if the mistake is fundamental as to prevent ownership from passing Fundamental mistakes Mistake as to the identity of whom the property is given (Middleton) D was given extra money at the post office based on a mistaken identity Mistake as to the identity of that which is handed over (Ashwell) D received a sovereign rather than a shilling, and only discovered the mistake later Where an excess quantity of goods is delivered (Russell v Smith) Exclusion; If D receives too much money cannot be guilty of larceny, ownership only passes when the person in possession hands it over intending the person to be an owner S 124 for fraudulent misap can only apply to unilateral mistake, as ownership has passed by the time the necessary MR Is formed Riley Principle (Riley) Where a fundamental mistake has been made and D only subsequently becomes aware of the error and decides to keep the property The consent is vitiated at the time D becomes aware Under Riley the original trespassory taking will extend unless and until D forms the necessary MR 3

4 1.3 Mens Rea (Illich) Larceny is not committed unless, at the time of taking the property 1. D intends to permanently deprive the owner of the property Conditional return Where D takes the goods of another with the intention of returning them at a later time, subject to specific conditions Where D takes property, an intention to return the property is not a defence to charge of larceny if D has appropriated the property for s 118) the property and return it to its true owner (Foster) exercising ownership exercise of ownership and larcenous under s 118 Altered condition Where D intends to return the property to the owner, but in a substantially altered condition, or with reduced value larceny can be charged (Duru) The change in the property must be substantial, and not that which can occur with the normal use of the property (Bailey) Illegal use of motor vehicles Intent to permanently deprive is not required for illegal use of motor vehicles, only lack of consent (s 154A) Fungibles Non-interchangeable property (typically cash) Where D takes money from the till, and intends to return that money the next day, and has a reasonable expectation of doing so, D can be charged with larceny (Cockburn) Where D has taken an antique chair, with the intention of returning the chair the next day, then the focus is on whether D appropriated the chair under s D does not have a claim of right in good faith Belief of a claim of right to property is inconsistent with larceny moral right will be insufficient (Harris v Harrison) Mistake of law and fact Belief in a claim of right might arise due to a mistake in fact or law Where the belief is due to a mistake in law, this mistake may negative charges of larceny, if the mistake prevented D from forming the necessary MR; as D is not acting fraudulently (Lopatta) Belief does not have to be reasonable The belief does not have to be reasonable (Lopatta) There is no need for D to demonstrate a belief in a right to enforce the claim (Nundah) The role of the reasonableness of the belief is in evidence Claim of right to the entire property D cannot argue legal claim of right if they took more than they believed they were entitled to (Astor v Hayes) Belief in a legal right to the property D need only have a belief in the legal right to the property, rather than a belief in the legal right to employ the means in question to recover it (Love) 4

5 3. There is an element of fraud fraudulent dishonest (MacLeod; dishonesty is defined in s 4B) Where D acts to permanently deprive without a bona fide claim of right, D fraudulent current standards of ordinary decent people Feely; applied in MacLeod) dishonest according to the standards of ordinary people and known by the defendant to be dishonest by the standards of ordinary people (s 4B) Fraudulence, may be important in NSW due to s 118 which forgoes the requirement that D intends to permanently And in cases where fungibles are involved 1.4 Temporal Coincidence Generally, the fraudulent intent must exist at the time of taking (Thurbon) Exceptions apply A charge of larceny as a bailee requires that D formed the intent subsequently to taking possession of the goods (because a bailment involves a possessory transfer) An honest but trespassory taking (without consent), and the subsequent development of the fraudulent intent, may amount to riley principle Where D innocently acquires property Only to later form the intention to permanently deprive the owner 5

6 Larceny by Finding (s 117) Where V loses property, and D finds an dishonestly appropriates it 1.5 Actus Reus (Illich) 1. Took an carried away (as for simple larceny) 2. Property capable of being stolen (as for simple larceny) 3. Which belonged to another Property which is found cannot be stolen, unless at the time the property was owned, possessed or under the physical control of another If goods have been abandoned, then these goods cannot be the subject of larceny (Hibbert v McKiernan; where abandonment is defined as the intentional giving up of ownership and possession Donaghue v Coombe) 4. Without consent of the owner consent is assumed and the taking is not trespassory (MacDonald) If D has no intention or regard to the owner, or the intention to keep the property, the taking is without consent (MacDonald) 1.6 Mens Rea (Illich) 1. D has the intention to permanently deprive (as for simple larceny) 2. Without a claim of right (as for simple larceny) 3. Fraudulently Emphasis of larceny by finding is on fraudulence If D honestly believes that the property has been abandoned, or that the owner cannot be found then D will not have acted fraudulently (Thurbon) If D, at the time of finding forms the honest belief that the owner cannot be found, D cannot be guilty of larceny (Thurbon; at the time of taking the bank note D had acted innocently) If D finds property which is lost or reasonably supposed by D to be lost, with the intention of returning the property to the owner, D will not be guilty of larceny if D subsequently fraudulently appropriates the property (Matthews; camera hanging on a paling fence ) But, in NSW the offence of unlawfully being in possession of property has been created to cover cases where there was no trespassory taking and D later forms the MR (s 527) 6

7 Larceny by Trick (s 117) Where D comes into possession of property with the consent of the owner, but the consent was induced by a trick Pear) 1.7 Actus Reus (Illich) 1. Took and carried away (as for simple larceny) 2. Property capable of being stolen (as for simple larceny) 3. Which belonged to another The true owner must have consented only to a transfer of possession, not ownership For fungibles, it is a question of fact and degree, the court will look at the intention of Justelius) 4. Without the consent of the owner inducement (Pear) Trickery Can include any form of artifice, deception or false representation Promises as to the existence of a circus (Wort) Presentation of worthless checks (Stewart) Impersonation (Kay) A person cannot trick a machine (Kennison v Daire) 1.8 Mens Rea (Illich) 1. Acted with an intention to permanently deprive (see simple larceny) 2. Without a claim of right (see simple larceny) 3. Fraudulently 7