CRIMES (THEFT) BILL EXPLANATORY MEMORANDUM. The object of the Act is to replace the present law dealing with the crimes of larceny, false pretences, embezzlement, robbery, burglary and blackmail, and the various crimes related thereto, by a short set of comprehensive modern provisions. REASONS FOR THE PROPOSED REFORM. The law on the matters covered by the Act is basically the common law, but it is at present added to and varied by over 100 sections in the Crimes Act. The basic offence is larceny (stealing), which originated more than six centuries ago in the common law. When the law of larceny first took shape, the notions of ownership and intangible rights (which are the foundation of a modern commercial community) were unknown. Possession of physical objects was all-important, and larceny came to be defined (as it still is) as the taking and carrying away. of some physical object from the possession of some other person, without his consent. During the intervening centuries, the judiciary and legislature have endeavoured to adapt this framework to meet the needs of a modern society. The steps taken have, however, been piecemeal. as occasion arose, and the result is a patchwork of judicial decisions and statutory provisions. Inevitably, there are many loopholes, and the distinctions between the various crimes which now exist are highly technical and complicated. Some of these distinctions can be effectively made by the courts, but at the cost of defying common sense. Others still defy judicial attempts at a satisfactory resolution. A few examples may illustrate the point :- (a) Suppose that John's sheep strays on to William's land, and grazes with William's sheep. If, after a few days, William sells the straying animal and pockets the proceeds, it is doubtful whether he has committed any crime, even though he knows, when he sells it, that it is not his. (b) Suppose that John and Mary decide to live together and pool their earnings, which they pay into a joint account opened for the purpose and over which each has a power to sign cheques. If some time later John, having decided to leave Mary, signs a cheque and draws out the entirety of the fund, which he keeps for himself, the law holds that he has stolen nothing from Mary. (c) Suppose that John asks William for a loan of $2.00 to enable him to buy a few drinks that evening at a local hotel. If William by mistake hands over a $10.00 bill and John takes it without noticing the error, which he discovers when he offers the note at the hotel, it is doubtful whether John, should he decide to keep the surplus $8.00, has stolen anything from William. Certainly he has stolen either the whole $10.00 or nothing at all. The layman would say he has stolen $8.00, but that is the one crime which he has clearly not committed, in the eye of the law. The distinction between the statutory crime of obtaining by false pretences and the common law felony of larceny is highly technical, and in consequence difficult to apply in practice, especially where money is the object of the crime. Indeed, the welshing bookmaker has in the past been able to profit by it, for which (if either) of the two crimes he has committed is a question that still awaits satisfactory resolution by the highest courts; in the lower courts there are conflicting decisions on the matter. I 1-[37]-750/7.3.1973.-987.
2 Embezzlement, again, is loaded with technicality, and there are two conflicting lines of judicial authority on what is meant by receiving property " on account of" one's employer, although this is the key feature of the crime. Robbery is, in essence, larceny accomplished by violence or threats of violence, and thus has many of the technicalities of larceny in addition to some of its own. Blackmail is the subject of several separate statutory provisions involving technical distinctions, even though no difference of principle is present; thus, a mistaken belief that one is legally entitled to be paid the sum demanded is a defence to a charge brought under one provision, but apparently no defence to a charge brought under a different provision. Burglary is similarly a common law felony of ancient origin, modified and extended by statute to meet modern conditions. The law here is again replete with technical distinctions which serve no useful purpose. The possibility of reforming this area of the law has been extensively studied in England and the United States since the end of World War H. In the United States a draft statute on the matter was prepared by the American Law Institute as part of its Model Penal Code. In England the Criminal Law Revision Committee, after an intensive review which took seven years, recommended the replacement of the entirety of the existing law by a comparatively short new statute, which was in due course enacted as the Theft Act 1968. Both the English Committee and the American Institute found it necessary to tackle the problem by way of radical excision and replacement, rather than by modification and amendment, which (owing to the unsatisfactory nature of the basic concepts) has proved unsuccessful in the past. In Victoria the Chief Justice's Law Reform Committee has studied the matter carefully for a period of about two years, and has in the course of that study naturally considered both the English and the American recommendations. It has decided to recommend the enactment of the English statute with some minor modifications; a few of these modifications relate to matters of basic principle, but most of them are needed to take account either of the relationship between federal and state spheres of legislative authority or of the general pattern of Victorian legislation. Its decision was based on the fact that the English reform has proved highly successful in practice. The English courts have shown a determination to interpret the new provisions according to their letter and spirit, and to discourage attempts to introduce into new law the technicalities that disfigured the old. Their decisions will be readily available as precedents and guidance for our own courts. The major benefit which may be expected to flow from this reform is that attention will be focussed on the basic question of honesty or dishonesty, instead of on technical questions such as the precise legal analysis of the manner in which the property came into the hands of the accused man. Simplicity is of course a further benefit. Since the great majority of cases is handled by the county courts and magistrates' courts, and often with the accused unassisted by counsel, this should prove a great boon. It may be added that the task of the police and other prosecuting agencies and officials will be greatly eased, as the English experience has shown. These persons at present face great difficulties especially in dealing with the more sophisticated types of stealing and fraud. It cannot fail to be of benefit to the public interest that they will be able to concentrate on the facts of the various cases they enquire into, and on the question of dishonesty or no, instead of being forced to concern themselves with minute legal technicalities that serve principally the interests of the well-advised or well-informed rogue. THE STRUCTURE OF THE BILL. Clause 1. This sets out the title of the Act, and provides that it is to come into operation on a day to be fixed by proclamation. That day must, however, be a date not less than 12 months after the passing of the Act. The purpose of the 12 months' delay is to provide an interval during which the judges, the bar, solicitors, the police, and all others concerned can familiarize themselves with the new provisions. Clause 2. This is the main provision. It sets out in sub-clause (1) a series of amendments to the Crimes Act ; these will be explained in detail below. Sub-clause (2), together with the Schedule, amends section 83 of the Goods Act and section 102A of the Justices Act, and repeals one word in the Marine Stores and Old Metals Act. These amendments are purely consequential, substituting the language of the new provisions for that of the present law. I
.. 3 Clause 3. Since the new provisions replace both the existing common law and the existing statutory provisions, sub-clause (1) abolishes the common law offences which are to be replaced. The abolition takes place as from the commencement of the Act. It is intended that the text of this sub-clause shall be included as a footnote in future reprints of the Crimes Act. Sub-clause (2) amends, consequentially and by way of general reference, all references to the existing common and statute law in other statutes (save those expressly dealt with in the Schedule). These amendments also operate only as from the commencement of the Act. Clause 4. This clause provides that the new provisions shall have effect only in relation to offences wholly or partly committed on or after the coming into operation of the Act. It is a transitional provision in standard form. THE AMENDMENTS MADE BY CLAUSE 2 (1). A-INTRODUCTORY. Paragraph (a). This amends section 1 of the Crimes Act by providing a new name for Division 2. It also provides for the insertion of that name at the appropriate point (i.e. immediately following the last section of Division 1) in the Act. Paragraph (b). This is the main amendment, its text extending from page 2 to page 16. Briefly, it replaces the present subdivisions (1) to (8) inclusive of Division 2 of Part I. of the Act, and their headings, by a new set of sections numbered 71 to 96. The amendment or repeal of subdivisions (19) to (21) is accomplished by paragraphs (d) to (g) and will be explained under those paragraphs. B-THE NEW PROVISIONS. These replace the present subdivisions (1) to (18) and the present section 71 (an introductory definition section repealed by paragraph (c), as explained later), and are as follows :- Section 71. This is a definition section applying to the whole of Division 2 as amended. It replaces a similar definition section in the present Act. Sub-section 0) provides definitions for the terms "gain ", "loss ", "goods ", and " property". " Gain" and "loss" extend only to gain or loss in money or other property, but cover both temporary and permanent gains and losses. In accordance with the common understanding of these terms, it is provided that one may gain by keeping what one already has, as well as by getting what one has not; and one may lose by not getting what one might get, as well by parting with what one already has. " Goods" includes money and every kind of property except land; but it includes things severed from land by stealing. " Property" includes every kind of property, and extends to land, money, and intangible property such as stocks and shares. Sub-section (2) provides that for the purposes of the Division property is treated as belongin~ to any person who possesses or controls it, or who has any right or interest of a proprietary (ownership) nature in it (except for certain minor equitable interests). Section 72. This is the principal section dealing with theft. Sub-section (1) defines stealing by stating that a person steals if he dishonestly appropriates another's property with the intention of permanently depriving that other of it. The term " dishonestly" was deliberately chosen as being one which is readily and easily understood by laymen as well as by lawyers. No attempt is made to define its full scope since it is impossible to anticipate the various cases that arise from time to time ; section 73 (2), explained below, does, however, provide that three well-recognized types of dealing with the property of others is not to be regarded as dishonest. Thus there can in no case be a conviction unless the magistrate or jury is satisfied beyond reasonable doubt that the appropriation was dishonest, and section 73 (2) ensures that such satisfaction cannot occur in the cases specified there. SeCtion 73 (3), also explained below, provides an additional gloss on the word.
The term " appropriates " was also deliberately chosen as being the only word which satisfactorily covers the various cases of taking away someone else's property from him, failing to give it up to him when one knows it belongs to him, and so on. It was thought by the English Committee, and has been demonstrated in practice, that the term can be readily explained to a jury according to the context of the particular case. Moreover, most people are already familiar with the notion of misappropriation. It should be noticed that whether an appropriation is dishonest, and effected with the intention of permanently depriving another person of his property, are matters to be decided (in accordance with basic legal principle) by reference to the circumstances existing at the time when the appropriation occurs.. Sub-section (2) follows up the definition of stealing by providing that a person who steals is guilty of the crime of theft, and is a thief. It should perhaps be mentioned that the English Act contains a sub-section to the effect that one may steal even though one does not expect to gain or benefit from the appropriation, e.g. where one takes another's property in order to maliciously destroy it. This was included by way of repeating a proposition which forms part of the existing law, and to guard against the possibility that judicial interpretation might " read into" the new provisions a requirement that such an expectation of gain or benefit must be shown. As experience has since revealed a judicial determination not to read into the statute phrases which do not appear there, add as the sub-section in question was unhappily and somewhat misleadingly worded, it is is thought unnecessary to include it in the Victorian Act. Section 73 provides a series of commentaries on the five points-(a) dishonesty, (b) appropriation, (c) property, (d) belonging to another, and (e) intention to permanently deprive-appearing in the definition given by section 72. Sub-section (1) states that the provisions of the section apply only (except where otherwise expressly provided) to the crime of theft. Sub-section (2) specifies three cases in which an appropriation of another's property is not to be treated as dishonest (c! notes to section 72). Theyare:- (a) where the appropriator believes he has a right in law to deprive the other of his property, i.e. where he acts under a claim of right; (b) whether the appropriator believes he would have the owner's consent if the latter knew of the circumstances; and (c) where the appropriator does not know who the owner is and believes that he cannot discover the owner by taking reasonable steps. This last case deals with the position of finders of lost property. It does not apply to a trustee or personal representative, who is never entitled to keep the trust or estate property for himself (save under a court order) if the beneficiary cannot he found. '. Sub-section (3) provides that an appropriation may be dishonest notwithstanding that the person concerned is willing to pay for the property. Whether, in a given case, the appropriation was dishonest or not will be a matter for the magistrate or jury to decide in light of the circumstances. For example, if John takes WiIliam's car without his consent, the appropriation may well be found to be dishonest even though John is at all times willing to pay, since the mere possession of wealth does not confer a licence to take whatever one wants. Sub-section (4) defines the concept of appropriation by providing in effect, that a person appropriates another's property whenever be treats it as if it were his own to dispose of or.deal with.' It ekpmsly covers the case where a person comes by another's property.quite innocently nd later decides to 'treat it asbis OWD ; e.g. where he is handed something by mistake and decides' to keep it on finding out the mistake.
---... --- 5 Sub-section (5) narrows the effect of sub-section (4) above. It provides that a person who comes by some property in good faith and for value does not steal it if, on learning that it belongs to a third party and that the person who purported to sell or pledge it to him had no right to do so, he nevertheless keeps it. This accords with the present law. The civil rights of the true owner of course remain unaffected. Sub-section (6). This provides that land, and things forming part of land but severed from it, cannot be stolen. To this general rule three exceptions are specified :- (a) the case of the trustee (or person in an analogous position) who appropriates the trust land, or things severed from it, in breach of the trust ; (b) the case of a person who, not being in possession of land, severs something from it and appropriates it when severed, e.g. of someone who wrongfully enters another's garden and uproots and takes away for himself some valuable rose-bushes (but note the gloss on this in sub-section (7), below); and (c) the tenant who rips out and keeps for himself a fixture let to him with the land. Sub-section (7) provides a gloss on sub-section (6) (b). It specifies that a person who picks mushrooms, flowers, fruit, or foliage growing wild on another's land does not steal them, unless he gathers them for reward, sale, or other commercial purpose. Sub-section (8) provides that wild animals, whether tame or not, are to be regarded as property. But a wild animal, neither tamed not ordinarily kept in captivity, cannot be stolen (nor can its carcass), unless it has been or is being brought into possession by someone else and that other's possession of it has not been lost or abandoned. Sub-section (9) provides that property subject to a trust is to be regarded as belonging to any person entitled to enforce the trust. It is needed to cover certain exceptional cases of trusts whose beneficiaries have no interest in the trust property. Sub-section (10) deals with certain special cases of persons who receive property in circumstances which put them under an obligation to others to deal with it in a particular way, e.g. the treasurer of a Christmas benefit fund. The property is to be regarded as belonging to the person from whom it is received, so that if it is dishonestly misapplied, it can be regarded as having been stolen. Sub-section (11) deals with the case of a person who gets property by another's mistake and is under an obligation to restore it or part of it, or its proceeds or value. To the extent of the obligation to restore, the property is regarded as belonging to the person entitled to restoration. Thus if John mistakenly gives William a $10.00 note when both intend a $2.00 note to be handed over by way of loan or gift, WilIiam becomes a thief of the surplus $8.00 when and if he decides to keep it for himself. Sub-section (12) covers the unusual case of a corporation sole (e.g. the Public Trustee), and provides that its property continues to belong to the corporation even if there is a temporary vacancy in the office. Sub-section (13) states that a person is to be regarded as intending permanently to deprive another of his property if he intends to treat it as his own regardless of the other's rights, even though he does not mean the other permanently to lose the thing itself. Specifically, a borrowing or lending of another's property may amount to a permanent deprivation if and only if the circumstances and the period of time in question make the transaction equivalent to an outright taking or disposal. Sub-section (14) provides a rider to sub-section (13). It deals with the case of one who, having another's property, parts with it under a condition as to its return which he may not be able to perform, and does so for his own purposes and without the owner's authority. For example, if John, being short of funds, takes William's transistor radio and pawns it, he is to be regarded as having intended to deprive William permanently of his radio. Most of the modern decisions under the present law are to the same. effect.
6 Sub-section (15) repeats the recently-enacted provision that "illegal users" of mo~or cars or aircraft are to be treated as thieves thereof. It is assumed that Parliament would not wish to vary this rule. Section 74 makes a thief guilty of felony and provides a maximum sentence of 10 years. This maximum is the same as that of the English ccunteq::art. At rresent sirrlple larceny carries a maximum of 5 years, but many provisions of the Crimes Act dealing with srecial classes of theft (e.g. of motor cars, aircraft, cattle, goods in process of manufacture), carry 1O-year maxima. So also do embezzlement and fraudulent conversion, which are now forms of theft. As courts have ample power to temper an individual sentence to the circumstances of the case, it is thought that the maximum of 10 years (i.e. the penalty available in the more serious cases under the present law) is appropriate. Section 75. Sub-section (1) defines robbery in simple terms as, in effect, stealing accomplished by the use of force or threats thereof. It repeats the effect of the present law but clarifies and removes some of the present technicalities. Sub-section (2) provides a maximum penalty of 20 years for robbery or assault with intent to rob. Present penalties vary from 3 to 20 years, and as in section 74, the 20-year maximum has been chosen in view of the courts' flexible powers. The maximum penalty under the corresponding English provision is life imprisonment. Section 76 deals with burglary. The present law requires a breaking and entering of a building with intent to commit a felony therein. The concept of" breaking" has given rise to a mass of technicality, and the offence is at present covered by a series of sections with maximum penalities varying from 7 to 20 years according to the time of day and type of building when or in which the offence takes place. Sub-section (1) provides that burglary is committed by entering a building (or part thereof) as a trespasser, and doing so either with intent to steal therein (the most common type ofburglarious intent) or with intent to commit an assualt on someone therein or to damage the building or some property therein ; but in the last two cases only if the intended assault or damage is of a nature which, if it were committed, would itself be a crime sufficiently serious to carry a penalty of 5 years or more. The definition follows that of the English Act but makes two modifications thereof. Under the English provision an intent to commit any damage in the building, however slight, makes the offence burglary, while an intent to commit only the more serious types of personal injury is required-a discrepancy which appears to regard property damage as more serious than personal injury and is thought undersirable. The English provision also makes it burglary to enter as a trespasser, but without other criminal intent, and thereafter commit a theft, personal assault, or malicious damage ; here also, it is thought that the principal of " relation back" thus involved is undersirable. Sub-section (2) provides that burglary may be committed in an inhabited vessel or vehicle (e.g. a houseboat or caravan) as well as in a building, even when the ordinary inhabitant is not present. Sub-section (3) provides a maximum penalty of 14 years, which is that of the English Act. The principal used in other sections of taking the present maximum, whatever it may be, has been here departed from in order to leave room for a higher maximum under section 77. Section 77. Sub-section (1) creates a separate felony of aggravated burglary, consisting of burglary committed by a person who has with him, when entering, any firearm, immitation firearm, offensive weapon, or explosive (each of which is. defined). Sub-section (2) provides a maximum penalty of 20 years for this offence. corresponding English penalty is life imprisonment. The
7 Section 78 creates a new offence, for the purpose of protecting articles and collections kept for public display, e.g. the various collections displayed in the National Gallery. The public nature of the premises where they are housed makes then less easy to protect than goods in private premises, and consequently more susceptible to unauthorized "borrowing". Sub-section (1) defines the offence as removing, without lawful authority, from a building open to public access any article displayed or kept for display therein. Such a removal is not not necessarily theft, since there need be neither dishonesty nor an intention to deprive the owner permanently of the article. Sub-section (2) makes it clear that the offence may be committed even in cases where public access to the building is limited to a particular period or occasion (e.g. on weekdays only). At the same time the offence is limited by providing that if the article removed is not part of a collection intended for exhibition to the public, the person removing it commits the offence only if he removes it during a period of public access (i.e. if he gains entry by virtue of his public right and abuses it when inside). Sub-section (3) provides that no offence is committed by a person who believes he has lawful authority to remove the article taken or that he would have such authority if the person in charge knew of the circumstances. Sub-section (4) provides that this offence shall be a felony with a maximum penalty of 5 years. Section 79 re-enacts, with one change, the recently-enacted section 82 dealing with the theft of a motor car for use in connexion with a felony. The required minimum sentence of 6 months is retained, but the present maximum of 7 years has been deleted, as the new section 74 (explained above) provides a maximum of 10 years for all types of theft. Section 80 re-enacts existing provisions (sections 83A (3) and (4)) covering the "hijacking" of aircraft. Section 81 creates a new offence of obtaining property by deception. It is similar to the present "obtaining by false pretences", and strictly speaking its scope is covered by the crime of theft. As, however, we have become accustomed to thinking of obtaining by deceptive practices as something different from stealing, it has been thought desirable to create a specific crime covering this type of fraud. This will avoid the necessity, which would otherwise arise, of charging the accused with theft and entering into a lengthy explanation to the jury of how the definition of the latter crime covers a somewhat atypical kind of stealing. It is of the essence of the Act's scheme, however, that theft and obtaining by deception shall be regarded as overlapping, and not mutually exclusive, offences. It has, indeed, been so held in England. In contrast, the present Victorian law treats the crimes of larceny by a trick and obtaining by false pretences as mutually exclusive, a matter which has given rise to much technicality in distinction, and has from time to time enabled rogues to escape any penalty for their activities. In the result, therefore, the confidence trickster, at whose activities this section strikes, will ordinarily be charged with criminal deception. But if he is perchance charged with theft instead, he will not be able to meet that charge by the unmeritorious claim that what he really committed was criminal deception. Sub-section (l) defines the crime as dishonestly obtaining property belonging to another by deception, with the intention of permanently depriving that other of it. The offence is declared to be felony and given a maximum penalty of 10 years; in both these respects it is treated exactly as is theft, thus reinforcing the intention that the two offences are not mutually exclusive (if they differed in respect of either grade or penalty, an argument that they are mutually exclusive might well be successfully mounted). At present, obtaining by false pretences carries the same penalty as simple larceny, and in this respect the new provisions make no change. Obtaining by false pretences is, however, at present a misdemeanour, whereas larceny is a felony. This difference in grade is derived solely from history and is founded on no sound discernible principle; the precise type of lie with which one defrauds one's victim is scarcely a matter of great moment. In order to achieve the desired result of treating the new "theft" and "criminal deception" alike, this historical accident has been disregarded, and criminal deception is declared a felony,
8 Sub-section (2) defines "obtaining" as covering the obtaining of ownership, possession, or control of property, thus removing one of the main technicalities of the present law. Sub-section (3) applies to this offence the provisions of section 73 (13) and (14), which expound the meaning of "intending to permanently deprive" (as explained above). Sub-section (4) defines deception as covering all types of deception, whether as to fact, law, or one's present intentions, and whether by words or conduct. It thus eradicates the many technical distinctions which have grown up around the phrase" false pretences" under the present law. Section 82 creates a new offence of obtaining a financial advantage by deception. It is needed because certain types of common fraud, involving a dishonest obtaining of another's services (for example, without any intention of paying for them), are not covered by the offences of theft (section 72) or criminal deception (section 81); since no "property" is obtained, neither of those sections is available. It is thought undesirable, because of possible unfortunate repercussions, to deal with the problem by defining" property" so as to include services. The present section differs, however, in two respects from its English counterpart. The English Act uses the phrase" pecuniary advantage", and provides a definition for the phrase. This definition is unhappily worded, and has given rise to a set of technicalities described recently by an eminent English judge as a " judicial nightmare". It is thought that the proposed section 82 will remove these difficulties. Sub-section (1) defines the offence as dishonestly obtaining by deception a "financial advantage". This phrase is thought more apt to describe what is meant than is the phrase " pecuniary advantage" used in the English Act; and in order to avoid a repercussion in Victoria of the "judicial nightmare" no attempt is made to define it. The offence is, in common with all other analogous offences under the Act, declared to be felony. It carries a maximum penalty of 5 years. Sub-section (2) applies the definition of " deception" in section 81 to this offence. Section 83 makes it a felony dishonestly to destroy or falsify accounts or accounting documents, or to use knowingly false accounts or documents, either with a view to gain or with intent to cause loss to another. The notion of falsification is explained in sub-section (2). The offence carries a maximum penalty of 7 years. Section 84 makes directors and other officers of corporations and companies equally liable, with the corporation or company itself, for offences of deception committed with their consent or connivance. Section 85 makes it a felony, with a maximum penalty of 7 years, for a director or other officer of a corporation or association to publish a false statement with intent to deceive members or creditors about the affairs of the corporation or association. Section 86 creates two offences, each a felony with a maximum penalty of 7 years. Sub-section (1) covers the dishonest destruction or concealment of a valuable security, will, or court or government document, either with a view to gain or with intent to cause loss to another. Sub-section (2) covers in similar manner the dishonest procuring, by deception, of the execution of a valuable security, or the doing or certain things in relation to it. The like purpose or intent is required as in sub-section (1). Sub-section (3) defines "valuable security" and applies the section 81 definition of " deception" to these two offences. Section 87 replaces a number of existing provisions relating to blackmail and extortion by a new, simply-worded provision. Sub-section (1) defines blackmail as the making of an unwarranted demand with menaces. The demand must be made either with a view to gain or with intent to cause loss. In addition, it is specified that a demand with menaces is unwarranted unless the person making it believes (a) that he has reasonable grounds for making it and (b) that the use of menaces is a proper method for reinforcing the demand. These provisions avoid the many technicalities of the present law, and provides a proper test, and one which a jury can readily apply, for distinguishing the true blackmailing demand from a genuine claim. j
9 Sub-section (2) makes it immaterial what act or omission is demanded, thus avoiding any argument that, because the offence requires the demand to be made with a view to gain or to causing loss, some "property" must be demanded. The sub-section also covers the effect of the present section 126, which was enacted many years ago to obviate doubts which had arisen. Sub-section (3) makes blackmail a felony with a maximum penalty of 14 years. Section 88 creates a new offence of handling stolen goods, to replace the present" receiving" offence, and to cover several similar activities, all of which involve helping the thief to realize his ill-gotten gains. Sub-section (1) defines the offence in appropriate terms. It is specified that the" handler" must know or believe the goods to be stolen, and must act dishonestly in the matter. Sub-section (2) makes the offence felony with a maximum penalty of 14 years. This is greater than the present maximum, but is chosen deliberately to deter the professional "fence" whose existence makes the activities of professional thieves possible. Section 89 repeats in modern form the present law providing a minor penalty for advertising for the return of stolen goods "with no questions asked". Section 90 deals with incidental matters relating to offences in respect of stolen goods. Sub-section (1) applies the Act's provisions to good stolen outside Victoria but brought into the State, and to goods stolen before the commencement of the Act. Sub-section (2) extends the stolen goods provisions to the proceeds of the sale of the stolen goods and to goods into which the original stolen goods have been transmuted or broken down Sub-section (3) provides that goods cease to be stolen if they are restored to their rightfu owner, possessor or custodian, or when any right to restitution in respect of the theft ceases to exist Sub-section (4) provides that goods obtained by blackmail or criminal deception are to be regarded as stolen goods. Section 91, by sub-section (1), makes it an offence for a person to have with him, when away fron his place of abode, any article for use in the course of or in connexion with any burglary, theft, or cheat. Sub-section (2) provides a maximum penalty of 3 years for the offence. Sub-section (3) makes proof of the possession of any article, made or adapted for use ij committing a burglary, theft or cheat, prima facie evidence that the possessor had it with him fo such use. If the accused provides an innocent explanation of his possession, however, th prosecution must satisfy the jury beyond reasonable doubt that the explanation is untrue. Th sub-section thus abrogates a recent decision of the English Court of Criminal Appeal which i thought to place an unfair burden on the accused, and returns the law on this point to accord wit fundamental principle. Sub-section (4) defines "cheat" as an offence of criminal deception, and removes an doubt whether an offence under section 79 (1) (explained above) is to be treated as theft. Section 92 authorizes a justice to issue to a constable a warrant to search for stolen goods, which ma be seized when found. An inspector or superior police officer is also empowered to issue to a constable search warrant if the premises to be searched are now, or have within the previous 12 mond been, occupied by a person who has been convicted within the preceding 5 years of an offence either ( handling stolen goods or involving dishonesty. 987/13.-2 Section 93 deals with questions of procedure and evidence. Sub-section (1) facilitates the joint charging and trial of several persons who have at differe times, or at the same time, handled all or any of the goods stolen in the course of one theft.
10 Sub-section (2) provides that on a joint trial for handling stolen goods the jury may find anyone of the accused guilty whether or not he acted jointly with the other accused, provided of course that they are satisfied as to his guilt. Sub-section (3) provides that in proceedings for the theft of anything in the course of transmission, by post or otherwise, or for handling stolen goods from such a theft, a statutory declaration as to the despatch of the goods, or as to the non-receipt of them, shall, subject to certain safeguards, be admissible evidence. The accused can by written notice require the attendance. at the trial, of the person making the declaration. Sub-section (4) applies to this section the definitions of section 90 concerning stolen goods. Section 94 provides that where a court convicts a person of an offence of theft, criminal deception, blackmail, or handling stolen goods, it may make an order for restitution of the goods, or for the payment of compensation out of money in the possession of the prisoner when he was apprehended, either to the owner of the goods or to any person who has, since the theft occurred, in good faith bought them or lent money on them. The court is not to act in this regard unless in its opinion the relevant facts have appeared in evidence at the trial or appear in available documents. This section replaces existing provisions with similar effect. Section 95 deals with thefts of and damage to property of one spouse, by the other. Sub-section (I) provides generally that one spouse can steal or damage the other's property, and be criminally liable for doing so, as if they were not married. Sub-section (2) provides that one spouse may bring proceedings for theft etc. against the other as if they were not married, and that a spouse who does so shall be a competent witness for the prosecution. The sub-section refrains, however, from compelling the spouse to be a witness against his or her will. Sub-section (3), however, requires the consent of the Attorney-General to such proceedings to be first obtained, save where (a) a third person is charged jointly with the offending spouse or (b) where the spouses are separated under a court order and at the time of the offence no longer under an obligation to cohabit. The requirement of consent is not, nevertheless, to prevent the arrest, or issue of a warrant for the arrest, or the remand in custody or on bail, of any person charged with an offence, if the arrest is made without warrant, or the warrant issued on the information of a third party. Section 96 repeats recently-enacted provisions dealing with ancillary matters relating to motor car tealing. It is the last of the set of new sections inserted by clause 2 (I) (b) of the present Bill. ~-THE REMAINING PROVISIONS OF CLAUSE 2 (1). Paragraph (c) repeals the present section 71, a replacement having been provided in paragraph (b). Paragraph (d) provides an appropriate heading for sections 175-186 inclusive, which deal with secret :>mmissions and remain unrepealed. Paragraph (e) provides an appropriate heading for the remaining unrepealed provisions of Division 2. Paragraph (f) repeals sections 187-190 inclusive of the present subdivision (20) and also the whole ~ the present subdivision (21). Sections 191-193 remain unrepealed save as mentioned in paragraph ) below. Paragraph (g) re-enacts, in a form consequential upon the changes made by paragraph (I), the present ction 193. Paragraph (h) to (0) inclusive effect consequential amendments or repeals of various sections in the ter parts of the principal Act and in its 6th Schedule. By Authority: C. H. RlxON. Government Printer, M~!t>ollf;Je. I