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Module 5 · Theft

Theft has three elements: the accused appropriated property belonging to another, did so intending permanently to deprive the other of it, and acted dishonestly (s 72(1)). Every element must hold at one and the same point in time (Greenberg (Eng)). The recurring problem forms are theft by finding, theft by keeping after a mistake, theft where consent is contested, and dishonesty run through the claim of right. Robbery and armed robbery are excluded from assessment by printed instruction, so the robbery timing rule stays as context only. The marks sit in coincidence, fixing the one moment at which every element is true at once, and in working the three statutory beliefs on the facts rather than at large.

Cases at a glance

Definition and property

The burden. The prosecution must prove each of the three elements beyond reasonable doubt (charge book 7.5.1 [2]). The craft is in knowing which one or two elements the facts put in dispute, and in fixing the single moment at which they are tested.

Property. A bank credit is a debt owed by the bank to the customer, a thing in action, and it is capable of being stolen (s 71(1)). In Oxford v Moss (Eng) an undergraduate obtained the proof of a university examination, read it and returned it; the confidential information was not intangible property, so he was not guilty of theft. Copying a confidential document is therefore not theft of the information, though taking the paper itself can be.

Belonging to another. Possession, control and any proprietary right or interest each count, and the Crown needs only one (s 71(2)). In Turner (No 2) (Eng) the accused removed his own car from outside the garage that had repaired it, to avoid paying for the repairs; it was enough that the garage was in fact in possession or control, and the appeal against his theft conviction was dismissed. Money received otherwise than as trustee, under a fiduciary obligation to deal with that particular money in a particular way, is deemed, as against the fiduciary, to belong to the beneficiary of the obligation (s 73(9)), which is how group deposits stay capable of being stolen in the collector's hands. Hall (Eng) marks the limit: the travel agent who banked client deposits in the firm's general account under no special terms owed a mere contractual obligation to provide the trips, and his convictions were quashed ([1973] QB 126). The counter-arguments run the other way. Fungibles that mix and lose separate identity, like petrol in a tank, may cease to belong to another (Greenberg (Eng)). A thing is abandoned only where the owner has intentionally relinquished all ownership rights, and a taker of abandoned property in no one's possession or control commits no theft (Small (Eng); charge book 7.5.1 [37]).

Appropriation and consent

Any single right. Assuming any one of the owner's rights is enough, and the Crown need not prove the accused assumed them all (s 73(4); Stein v Henshall). In Morris (Eng, HL) the accused took goods from the shelves of a self-service store and attached labels showing lower prices; the substitution adversely interfered with the owner's right to have the goods sold and paid for at the greater price, and the appeals were dismissed. In Lawrence (Eng, HL) a taxi driver took £6 from a newly arrived tourist's open wallet for a fare worth about ten shillings and sixpence; the House of Lords held that the Theft Act had relieved the prosecution of the burden of establishing that the taking was without the owner's consent, and the appeal was dismissed. Victoria reads Lawrence narrowly: consent induced by fraud is not real consent, so there is an appropriation (charge book 7.5.1 [14]). So in Baruday, where an insurance broker extracted cheques from the City of Knox with bogus accounts for extra workers compensation premiums, the consent was obtained by fraud, he appropriated the cheques when he paid them into his account, and the appeal was dismissed. Genuine consent runs the other way. In Roffel he and his wife held all the shares and directorships, he alone ran the company day to day, and he drew cheques on its account intending to defraud its creditors; the company through its directing mind and will had concurred, so his receipt of the money was no appropriation, and the appeal was allowed. Roffel was considered in obiter to be wrongly decided by the High Court of Australia in MacLeod v R (2003) 214 CLR 230. It has since been read down to narrow application only to the type of company involved in it. The UK line, that any taking is an appropriation irrespective of the presence or absence of the victim's consent (Gomez; Hinks (Eng, HL)), is the essay contrast, not the Victorian position. Whether apparent consent given under coercion is real consent for s 73(4) is decided by no authority these sources carry, so name it as an open point. On the Victorian approach, a fact situation such as that in Hinks, where the prosecution case was influence and coercion rather than deception, might arguably lead to acquittal, providing the consent was not regarded as having been obtained by deception. The recurring error is to invent a deception at a clean handover to force an early appropriation; where the taking was innocent, the route is the later assumption by keeping (s 73(4)).

Mistake and the obligation to restore

Which route. Where only the payer is mistaken and the recipient knows it at the handover, an appropriation occurs at the taking and s 73(10) is not needed. Where both parties are mistaken, property passes under ordinary principles, so s 73(10) must be invoked to keep the property belonging to the other when the recipient later realises the mistake and decides to keep it. In Gilks (Eng) a bookmaker mistakenly overpaid the accused £106 on his winnings and the accused kept the money knowing he was not entitled to it; he was convicted of theft of the £106. A stallholder who hands change for a hundred instead of a twenty presents the same pattern: nothing is wrong at the handover and there is no deception, so Lawrence is distinguished in one sentence rather than argued. The provisions then work as a pair: s 73(10) keeps the overpayment belonging to the payer, the keeping or spending that follows supplies the appropriation, and every element can coincide when the accused decides to keep what was never theirs (s 73(4); charge book 7.5.1 [47]).

Dishonesty

No residual meaning. Section 73(2) is the exhaustive definition of what is not dishonest, so no residual standard survives once the beliefs are addressed (Salvo). The United Kingdom line in Feely, Ghosh and Ivey does not represent the law in Victoria (Salvo). Under the English Theft Act and s 86 of the Commonwealth Crimes Act 1914, dishonesty instead has its ordinary meaning, assessed by the standards of the ordinary person (Peters; Macleod; Ghosh (Eng); charge book 7.5.1 [69]); that is the essay contrast, never the Victorian test. In Salvo a car dealer retook a Ford by handing over a cheque he then stopped, believing the property in the car had not passed and that he was entitled to retake it; the Full Court held that dishonestly imports the absence of any belief in a legal right to deprive the other of the property, and the appeal was allowed with a new trial ordered. The Crown must negative a claim of right where the evidence sufficiently raises one. Any one genuine belief defeats the element, so dispose of the beliefs that plainly fail in a line each and spend the analysis on the one the facts make live.

The claim of right, belief (a)

The legal right. The belief must relate to a right in law; a claim of moral right is not sufficient (s 73(2)(a)). The belief is tested for genuineness rather than correctness: a belief founded on a mistake of fact or of law still exculpates if genuinely held (Langham (SA); charge book 7.5.1 [75]). The belief is in the right, not in the means: the accused need not have believed they were entitled to use the measures employed to take the property (Salvo; Bedford (SA); 7.5.1 [76]). In Langham (SA) the accused returned a $675 crossbow to a sports store, was refused cash and given credit, bought a shotgun with part of the credit, and later that day menaced the store manager with it, demanding and receiving the $301 balance in cash. His appeal against conviction for armed robbery was allowed: a genuine belief in legal entitlement to the property taken is enough, and it need not extend to a right then and there to take the property by the means adopted or at all. Nor is the claim confined to the very notes once held; it can extend to their equivalent in value, of which Langham is the example, though it may fail where the thing is taken ostensibly under such a claim while the actual intention is to sell it (Lenard (SA)). But the claim must extend to all of the property taken, not just to part of it (Bedford (SA); Astor v Hayes; 7.5.1 [74]). A worker owed $700 who takes $900 therefore has no claim of right to the taking of the $900 at all, and a split conclusion is available only where the facts disclose two separate appropriations. The error is to test the belief against the part the accused was owed, or against the means: a claim that does not cover the whole of what was taken does not exculpate any of it (charge book 7.5.1 [74]).

The owner would consent, belief (b)

The consent belief. An appropriation is not dishonest where the accused believed the owner would have consented to it had the owner known of the appropriation and the circumstances surrounding it (s 73(2)(b)). The belief is built on pattern evidence. Housemates who have swapped cars without asking for years make the belief comfortable even though no one asked on the night; not asking is the very situation the belief addresses, so run it on the pattern rather than treating the missing permission as decisive. An intention to repay belongs here too, as evidence of a belief in consent: willingness to pay can bear on dishonesty but does not necessarily exclude it (s 73(3); charge book 7.5.1 [83]-[84]).

The owner cannot be found, belief (c)

Finding. An appropriation is not dishonest where the accused believed the person to whom the property belongs could not be discovered by taking reasonable steps (s 73(2)(c)). The provision covers the finder and the mistaken receiver, provided the belief was genuinely held (charge book 7.5.1 [79]). It is defeated by reasonable steps sitting in plain sight: an engraved ring, a lost property notice, an open door to knock on, each a step the finder never took. Keep the belief distinct from abandonment. Property no longer belongs to an owner who has intentionally relinquished all ownership rights, while property merely lost still belongs to the owner (Small (Eng); 7.5.1 [37]-[38]). The (c) belief concedes the thing still belongs to someone and asks only whether that someone can be found. Property that came to the accused as trustee or personal representative cannot attract the belief at all (s 73(2)(c)).

Intention permanently to deprive

Timing and conditional intention. It is trite law that the intention which falls to be considered is the intention of the accused at the time of the appropriation (Sharp v McCormick). In Sharp v McCormick the accused took a motor car coil from his employer, meaning to fit it to his car and to return it if it did not fit; his reservation of the probability or possibility of keeping it amounted to an intention to treat the coil as his own to dispose of regardless of the owner's rights, and the case was remitted to the magistrate for further hearing. Using a motor vehicle or aircraft in any manner without the consent of the owner or lawful possessor is conclusive evidence of the intention (s 73(14); charge book 7.5.1 [62]). That reaches use without any movement of the vehicle, and the passenger who rides in a vehicle they know to be stolen (7.5.1 [63]-[64]). Some facts leave genuine doubt: a person who pockets a letter when surprised may or may not have meant to return it, and the honest answer is that a jury might not be satisfied beyond reasonable doubt.

Section 73(12). Section 73(12) is relevant only in exceptional cases; it is apt to confuse and should only rarely be introduced into a charge (Dardovska; charge book 7.5.1 [58]). The common law knew three such situations, surveyed by Charles JA in Dardovska: the ransom principle, taking property intending to return it only if the owner pays for it (Lloyd (Eng)); the essential quality principle, returning the thing only after a fundamental change of character; and the pawning principle, pawning another's property while hoping, without being certain of the ability, to redeem it. The cheque is the standard essential quality example: in Duru (Eng) the appeal was dismissed because a cheque, while a piece of paper, changes its character once it is paid. Section 73(13) now carries the pawning case: parting with another's property, for the accused's own purposes and without the owner's consent, under a condition as to its return the accused may not be able to perform, is deemed treating it as their own to dispose of regardless of the owner's rights (7.5.1 [61]). The limit is Dardovska itself. The accused there lured the victim to a house, where she and two accomplices assaulted him and took a tape recorder and documents, which she said she took to gather incriminating information for the police. Far from treating the documents as her own to dispose of regardless of the victim's rights, her intention was to insist to the police that they were the victim's documents, and the conviction was quashed (Dardovska).

The single moment of coincidence

One point in time. The prosecution must prove that each element of theft existed at the same time (Greenberg (Eng); charge book 7.5.1 [85]). Greenberg is the rule biting: the accused filled his tank intending to pay, decided at the cashier's office not to, and drove away; at the filling there was no dishonesty, and at the driving away the petrol no longer belonged to the proprietors, so no single moment held every element and he could not be guilty of theft. Where property is held under a fiduciary obligation, it is enough that the dishonesty existed at the point of appropriation; the receipt and the dishonest appropriation need not coincide (Hall (Eng); 7.5.1 [86]). The method is mechanical: name the candidate moments on the facts, the first taking, the decision to keep, the spending, then pick the moment the Crown would choose and test every element at that moment and no other. The timing sentence takes a fixed form: all elements must coincide at the one point in time, here when the accused decided to keep the thing.

The movable moment. Keeping or dealing with property as owner is itself an appropriation, so where the first taking was innocent the Crown's case crystallises later, at the decision to keep, the spending or the refusal to return (s 73(4); charge book 7.5.1 [15]). Section 73(10) keeps a mistaken payment belonging to the payer at that later moment (7.5.1 [47]). Two failures recur: testing the elements at the innocent taking and acquitting there, and inventing a deception at the handover to force an early moment. Fix the moment first; the honest route runs through the later assumption by keeping (s 73(4)).

A worked example

How the examiners mark it

Examiners reward method over coverage, and five habits earn the marks in theft. First, no introduction: open with the elements and their authority, then a triage sentence naming the live elements, so an obvious element earns one line and a contested element earns the analysis. Second, headings that carry conclusions, Tessa appropriated the credit by keeping it, rather than bare labels. Third, likelihood language in every conclusion: the Crown could prove this beyond reasonable doubt, a jury might not be satisfied. A split conclusion is available in theft only where the facts disclose separate appropriations. This is because a claim of right that does not cover the whole taking does not exculpate any of it (charge book 7.5.1 [74]). Fourth, dismissal discipline: where the paper prints an exclusion, honour it in one sentence and move on. Fifth, authority for every statement of law, pinpointed to the subsection, s 73(2)(a) rather than s 73. The mirror image loses marks: writing all you know about theft, testing elements at different moments, importing deceptions the facts lack, and concluding with certainty on two-sided facts.

Robbery, context only

out of scopeRobbery and armed robbery are excluded from assessment by printed instruction. The required move is one sentence printing the exclusion, after which the theft analysis carries the weight.

The one-screen reserve

Four points order the reserve. First, stealing is an integral part of robbery, so every element of theft runs before force is even mentioned, and any defence to theft is also a defence to robbery (s 75(1); charge book 7.5.2 [23]). Second, the force, or the putting or seeking to put in fear of it, must come immediately before or at the time of the theft and be used in order to steal (s 75(1)). Force after the appropriation is not robbery (Foster (NSW), persuasive), while force used simply to get possession of the property can suffice (Hood (WA)). The appropriation may be a continuing act, force at any point before it is complete satisfies the element, and when it was complete is for the jury (Hale (Eng); 7.5.2 [15]-[16]). Both are interstate, and the sources searched carry no Victorian appellate decision on the timing point. Third, a genuine claim of right to the property defeats robbery and its aggravated forms (Skivington (Eng); charge book 7.5.2 [23]-[24]). This is because the belief destroys the dishonesty of the stealing at robbery's core. The belief need only be in a legal right to the property, not in a right to take it by the means used (7.5.2 [24]). Fourth, armed robbery is robbery while the accused has with them a firearm, imitation firearm, offensive weapon, explosive or imitation explosive (s 75A(1)), the articles taking the meaning assigned to them by s 77(1) (charge book 7.5.3 [6]-[7]). An article is an offensive weapon if it is made for causing injury or incapacitation to a person, is adapted for that use, or is one the accused intends or threatens to use for that purpose (s 77(1A)). Adaptation requires physical transformation: a glass bottle smashed to produce jagged edges is adapted, but an article is not adapted merely by being handled or presented aggressively (Nguyen; 7.5.3 [17]-[19]). An unmodified, innocuous article can still qualify on the intends-or-threatens limb, the kitchen knife or walking stick carried with aggressive intent (Wilson v Kuhl; Nguyen; 7.5.3 [20]-[21]).

Critical pitfalls and counter-arguments

Take it to the practice bank

This module is drilled in the Criminal Law practice bank. Every problem there carries a realistic Pass answer, an H1 model answer, and an examiner's comment explaining the decisive fact and where the marks are lost.

Practice prompts

1. Fix the single moment of appropriation on a set of facts and test every element at it.
2. Argue appropriation where the owner apparently consented, and say why the consent does or does not hold.
3. Run the three exculpatory beliefs against a claim of right and test the belief against the amount taken.
4. Distinguish losing from abandoning on a theft by finding.
5. Where the facts brush robbery, write the sentence that prints the exclusion and moves to theft.
6. Run the s 73(10) route on a mistaken bank credit and fix the theft at the spending rather than the payment.
7. Split a dishonesty conclusion where a claim of right covers part of the amount taken and write both halves in likelihood language.
8. Write the triage sentence for a theft scenario that names the two live elements and disposes of the rest in a line each.