Larceny
Crimes Act 1900 (NSW), Pt 4, Div 5
[5-6100] Introductory note
This direction covers all elements of the offence. In most cases it will be unnecessary to refer in detail to them all. For an analysis of the common law requirements for larceny see Ilich v R (1987) 162 CLR 110 at 124.
[5-6105] Suggested direction
The accused is charged with stealing [identify the property]. To prove the accused is guilty, the Crown must prove beyond reasonable doubt each of the following elements which make up the offence:
- 1.
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the property belonged to someone other than the accused;
- 2.
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the property was taken and carried away;
- 3.
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the property was taken without the consent of the owner.
- 4.
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the property was taken with the intention of permanently depriving the owner of it; and
- 5.
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the property was taken dishonestly.
The last two elements are concerned with the accused’s state of mind. You are concerned with what that state of mind was at the time the property was taken.
You can only find the accused guilty if the Crown proves each element beyond reasonable doubt. If the Crown fails to prove any one of these you must find the accused not guilty.
The property belonged to someone other than the accused
The second element is simply that the property did not belong to the accused but to someone else. The Crown alleges that the property belonged to [name]. There is no dispute about this.
[If appropriate add:
In certain contexts the law differentiates between possession, control and ownership.
For example, if you were to legally buy a ring from a jeweller, the moment you took physical possession of it, you would not only have possession of it but you would also have control of it and you would own it.
If, however, you put the ring in a safety deposit box at the bank, you would no longer have possession of it — the bank would — but you would continue to have control and ownership of it.
All that is required is that, at the time the property was taken, it was owned, controlled or possessed by someone other than the accused.]
The property was taken and carried away
There must be some physical movement of the property, no matter how slight, by the accused [if appropriate: or someone acting on their behalf].
The property was taken without the consent of the owner
The Crown must prove the property was taken without the [owner’s] consent.
The accused intended to permanently deprive the owner of it
The Crown must prove that the accused intended or believed that the property was not taken only for a temporary purpose, but there was an intention to permanently deprive the owner of the property.
[If appropriate: If you find on the evidence the accused took the property but intended to restore it at a later time (or return the equivalent sum of money), that in itself does not entitle the accused to an acquittal. If you are satisfied beyond reasonable doubt the accused intended to take the property to use for [their own benefit/benefit of another], even if they intended eventually to return the property, then this does not prevent you from finding the accused had an intention to permanently deprive the owner of their property at the time it was taken.]
The property was taken dishonestly
The accused must intentionally take the property knowing the property belonged to another person, and the accused acted dishonestly. Whether they were acting dishonestly is for you to determine, applying the current standards of ordinary decent people.
[If claim of right is raised on the evidence:
The accused says they had a genuine and honest belief at the time that they took the property that they had a lawful right to do so. If a person is acting under such a belief, which is genuinely and honestly held, then it cannot be said that that person was dishonest in taking the thing in question, even if it was without the consent of the [owner/person in lawful possession].
It doesn’t matter whether in law there was no such right, or whether the accused mistakenly believed that they had such a right, or whether they had any reasonable grounds for such a belief. If that belief existed at the time the property was taken, then the state of mind of the accused would not have been dishonest. The Crown must prove that at the time the property was taken, the accused did not genuinely believe they had a legal right to it.]
[5-6108] Notes
- 1.
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Dishonesty is an element of the offence of larceny: Ilich v R (1987) 162 CLR 110 at 123; R v Weatherstone (unrep, 20/8/87, NSWCCA). Whether the accused was acting dishonestly is determined applying the current standards of ordinary decent people: Peters v The Queen (1998) 192 CLR 493 at 542, and R v Glenister [1980] 2 NSWLR 597.
- 2.
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Larceny is an offence against possession, not against ownership. A person lawfully in possession of property cannot be guilty of larceny of it: Ilich v R at 123–124, 134–135.
[5-6110] Notes — claim of right
The authorities relating to a claim of right are reviewed in R v Fuge (2001) 123 A Crim R 310 at 314–315; see also Liristis v DPP (NSW) [2016] NSWCA 66 at [62]–[63]. The following principles (omitting citations) apply —
- (i)
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The claim of right must be one that involves a belief as to the right to the property or money in the hands of another.
- (ii)
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The claim must be genuinely, that is, honestly held — whether it was well founded in fact or law or not.
- (iii)
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While the belief does not have to be reasonable, a colourable pretence is insufficient. Where the belief is not reasonable, this may go to its plausibility (Liristis v DPP at [62]–[63]).
- (iv)
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The belief must be one of a legal entitlement to the property and not simply a moral entitlement.
- (v)
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The existence of such a claim, when genuinely held, may constitute an answer to a crime in which the means used to take the property involved an assault, or the use of arms — the relevant issue being whether the accused had a genuine belief in a legal right to the property rather than a belief in a legal right to employ the means in question to recover it.
- (vi)
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The claim of right is not confined to the specific property or banknotes which were once held by the claimant, but can also extend to cases where what is taken is their equivalent in value, although that may be qualified when, for example, the property is taken ostensibly under a claim of right to hold them by way of safekeeping, or as security for a loan, yet the actual intention was to sell them.
- (vii)
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The claim of right must, however, extend to the entirety of the property or money taken. Such a claim does not provide any answer where the property or money taken intentionally goes beyond that to which the bona fide claim attaches.
- (viii)
-
In the case of an offender charged as an accessory, what is relevant is the existence of a bona fide claim in the principal offender or offenders. There can be no accessorial liability unless there has in fact been a foundational knowing of the essential facts which made what was done a crime, and unless the person who is charged as an accessory intentionally aided, abetted, counselled or procured those acts.
- (ix)
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It is for the Crown to negative a claim of right where it is sufficiently raised on the evidence, to the satisfaction of the jury.
Where dishonesty is a specific element of the offence, a claim of right direction is unnecessary and inappropriate. An adequate direction as to dishonesty is sufficient as proof of dishonesty negates a bona fide claim of right: Sigalla v R [2021] NSWCCA 22 at [85]ff (in the context of Commonwealth offences); Macleod v The Queen (2003) 214 CLR 230 at [39]–[49]; [107]. Where appropriate the jury should be directed that the Crown will not have proved dishonesty if it fails to prove the accused did not honestly (even if mistakenly) have a belief they were entitled to the property.
[5-6115] Suggested direction — intention to restore
The following direction, based on Foster v The Queen (1968) 118 CLR 117, is suggested where the evidence raises an intention to restore the property under s 118 of the Crimes Act 1900.
If you find on the evidence the accused took the property but intended to restore it at a later time (or return the equivalent sum of money), that in itself does not entitle the accused to an acquittal. If you are satisfied beyond reasonable doubt the accused intended to take the property to use for [their own benefit/benefit of another], even if they intended eventually to return the property, then this does not prevent you from finding the accused had an intention to permanently deprive the owner of their property at the time it was taken.
[5-6120] Special verdict of “larceny or receiving”
Section 121 of the Crimes Act 1900 permits a jury to deliver a special verdict in certain circumstances where both larceny and receiving are charged.
The special verdict only arises where —
- (i)
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a person is charged with both larceny and receiving; and
- (ii)
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the jury is not satisfied beyond reasonable doubt that the property was stolen or received because the evidence is consistent with both offences having been committed; and
- (iii)
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the jury are unanimously satisfied that —
- (a)
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the accused either stole or unlawfully received the property; and
- (b)
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in either case it is the same property; but
- (c)
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they are unable to say which.
[5-6125] Suggested direction on special verdict — after directions on larceny and receiving
The Crown has suggested you might have a reasonable doubt about whether the accused is guilty of each of those charges in that for larceny, you might think there is a possibility that the accused did not steal the property but received it knowing it had been stolen, and for receiving, you might think there is a possibility the accused did not receive it knowing that it was stolen but actually stole it. To cater for this possibility of a jury having a reasonable doubt about the two charges when considered individually, but being satisfied beyond reasonable doubt that the accused is guilty of one or the other but is unable to say which, the law provides that you may return what is called the “special verdict”.
If you are unanimously satisfied beyond reasonable doubt that the accused did steal the property, you should return a verdict of “guilty” on the first charge and you would not be asked for a verdict on the alternative charge.
If you are unanimously satisfied that the Crown has not proved that the accused stole the property, you should find the accused “not guilty” on the first charge and you will be asked for a verdict on the alternative charge.
If you are unanimously satisfied beyond reasonable doubt that the accused received the property, you should return a verdict of “guilty” on the alternative charge.
If you are unanimously satisfied that the Crown has not proved that the accused received the property, you should find the accused “not guilty”.
If you return verdicts of “not guilty” to each of the larceny and receiving charges you will then be asked if you return the special verdict which is that you are unanimously satisfied beyond reasonable doubt that the accused either stole the property or received it knowing it had been stolen but you are unanimously unable to say which. Your answer should be “Yes” if you are all satisfied of that beyond reasonable doubt and “No” if you are not.
If one or more of you is satisfied that the evidence proves that the accused stole the [property] or that the accused received the [property], then you cannot bring in a special verdict (because you would not be unanimous that you could not say which).
[5-6128] Notes
- 1.
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The special verdict permitted in s 121 of the Crimes Act 1900 usually arises where the Crown is unable to establish beyond reasonable doubt whether the property was stolen or received because the evidence is consistent with both offences having been committed (they are mutually inconsistent offences): R v Nguyen (unrep, 20/2/1997, NSWCCA). This commonly arises where the Crown relies upon the accused’s possession of recently stolen property from which it may be inferred the accused was either the thief or the receiver of the property: see [4-000] Recent possession.
- 2.
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Section 121 only applies where it is the same property alleged to have been either stolen or received: R v Clarke (1995) 78 A Crim R 226 at 228–229. If multiple items of property are alleged to have been stolen or received, the jury will need to be directed that they must be satisfied unanimously that all of the items were either stolen or received but they are unable to say which. Where there is scope for dispute as to whether all of the items were recently stolen or were in the accused’s possession, the better course may be for the Crown to aver multiple counts of stealing and receiving.
- 3.
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The return of verdicts of not guilty and thereby acquittal of both larceny and receiving are pre-conditions to the return of the special verdict: R v Cassidy (1919) SR 48; R v Scott Ferguson (unrep, 8/5/1986, NSWCCA); R v Saleam (1989) 41 A Crim R 108; R v Clarke at 229.
- 4.
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In order to return the special verdict the jury must be unanimously satisfied beyond reasonable doubt of both (1) the accused either stole or received the property, and (2) they are unable to say which. It is not a compromise verdict: R v Nguyen (unrep, 20/2/1997, NSWCCA). The special verdict is not available where there has been compromise such as where some jurors decide the accused is guilty of larceny, some decide the accused is guilty of receiving, and the balance are satisfied the accused is guilty of one or the other but cannot say which: R v Campbell at [29].
- 5.
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The Crown should raise the availability of the special verdict in opening or closing address: R v Walters (unrep, 13/5/1992, NSWCCA).
[5-6130] Suggested written directions
(A) Verdict as to the charge of larceny
- 1.
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If you are unanimously satisfied that the Crown has proved its case of larceny beyond reasonable doubt — return a verdict of “guilty of larceny”. Go no further.
- 2.
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If you are unanimously satisfied that the Crown has not proved its case of larceny beyond reasonable doubt — return a verdict of “not guilty”. [Go to (B) Verdict as to the charge of receiving].
(B) Verdict as to the charge of receiving
- 1.
-
If you are unanimously satisfied that the Crown has proved its case of receiving beyond reasonable doubt — return a verdict of “guilty”. Go no further.
- 2.
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If you are unanimously satisfied that the Crown has not proved its case of receiving beyond reasonable doubt — return a verdict of “not guilty”. [Go to (C) Special verdict].
(C) Special verdict
- 1.
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If you are unanimously satisfied that the Crown has not proved its case of larceny; and
- 2.
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You are unanimously satisfied that the Crown has not proved its case of receiving; but
- 3.
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You are unanimously satisfied that the Crown established beyond reasonable doubt that the accused either stole or received the same property, but you are unable to say which, you may bring in a special verdict of guilty of either stealing or receiving but you are unable to say which.
[5-6145] Suggested written direction — taking the verdict
When you have indicated that you have reached a verdict, your foreperson will be asked —
- 1.
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As to the larceny charge is the accused “guilty” or “not guilty”?
If the answer is “guilty” that will be the end. If the answer is “not guilty” your foreperson will be asked:
- 2.
-
As to the receiving charge, is the accused “guilty” or “not guilty”?
If the answer is “guilty” that will be the end. If the answer is “not guilty” your foreperson will be asked:
- 3.
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Do you return the special verdict that “the accused is guilty of either stealing or receiving but we are unable to say which”? The answer will be either “Yes” or “No”.
[5-6150] Larceny of motor vehicles
Section 154A(1)(a) of the Crimes Act 1900 makes it an offence where a person, without the consent of the owner or person in lawful possession of a conveyance, takes and drives it, or takes it for the purpose of:
- (i)
-
driving it; or
- (ii)
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secreting it; or
- (iii)
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obtaining a reward for its restoration or pretended restoration; or
- (iv)
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for any other fraudulent purpose.
It is an offence under s 154A(1)(b) to drive a conveyance knowing that it has been taken without consent or allowing oneself to be carried in or on the conveyance with that knowledge.
“Conveyance”, as defined in s 154A(2), includes, inter alia, motor car, bicycles, trailers, tractors or ships used for navigation, and “drive” is construed accordingly (see further below).
All the offences under s 154A are deemed to be larcenies (see s 116) and an accused may be indicted as such for the offence of larceny. There is a distinct offence in s 154F of “stealing” a motor vehicle, vessel or trailer. The word “steals” in s 154F requires proof of an intention permanently to deprive the owner or person in possession of the motor vehicle, vessel or trailer: Ilich v R (1987) 162 CLR 110 at 124; Schoffel v R [2023] NSWCCA 88 at [118].
Where the charge under s 154A includes the allegation that the accused drove the conveyance or where that was the alleged purpose of the taking, the word “drive” conveys (as part of its meaning) the application of motive force by the accused — so that in addition to having control of the steering and braking mechanisms of the vehicle, the accused must also be shown to have control over its means of propulsion (whatever the means of propulsion are, whether by the engine or the force of gravity, by the accused having initiated the movement of the vehicle downhill by releasing the hand brake, etc): Hampson v Martin (1981) 2 NSWLR 782 at 795–796. However in R v Affleck (1992) 65 A Crim R 96 at 98 and Williams v R [2012] NSWCCA 286 at [58]–[65] it was accepted that having control over the means of propulsion (in terms of accelerating and braking) was sufficient.
Note, s 4(1) of the Road Transport Act 2013 defines “drive” as including “be in control of the steering, movement or propulsion of a vehicle” but this definition has not been imported into the Crimes Act. As to the meaning of “drive” see also notes 6 and 7 in [5-5410] Dangerous driving.
The act of “driving” involves a voluntary act but there is a presumption of voluntariness and, unless there is evidence which raises the matter as an issue, the presumption applies in favour of the Crown: Jiminez v The Queen (1992) 173 CLR 572; R v Dunne (unrep, 26/03/93, NSWCCA).
The word “other”, qualifying “fraudulent purpose” (in s 154A(1)(a)), suggests that the purpose of “secreting” or “obtaining a reward” must also be shown to be fraudulent. In this context, it is suggested that “fraudulent” means “dishonest”, and the jury would need to be directed on this issue. The jury should be told that to establish the accused took the conveyance “fraudulently”, he or she must be shown to have acted dishonestly in the sense that the purpose at the time of the taking of the conveyance was dishonest and that, in deciding whether the act of taking was dishonest, they should apply the current standards of ordinary decent people: R v Glenister (1980) 2 NSWLR 597 especially at 607–608. In the context of s 154A(1)(a), it would also be appropriate to tell the jury that it would be open to them to find that the accused’s purpose was dishonest if he or she knew that they had no right to take the conveyance for the purpose of secreting it or obtaining a reward for its restoration or pretended restoration. Where a claim of right is raised, see: R v Love (1989) 17 NSWLR 608 and [5-6110] Notes — claim of right above.
[5-6155] Suggested direction — taking and driving (s 154A(1)(a))
The accused is charged with taking and driving a [specify conveyance] without the consent of the owner (or person in lawful possession).
The Crown must prove beyond reasonable doubt that the accused drove the [specify conveyance] in the sense that they moved it, having control over its means of propulsion.
[If appropriate: To “drive” means exercise control at least over the means of propulsion. By “means of propulsion” I mean accelerating and braking.]
Any degree of movement, however minimal, is sufficient … [if in issue, canvass evidence for the Crown and for the accused and the opposing submissions].
The Crown must also prove that the taking and driving of the [specify conveyance] was without the consent of the owner (or person in lawful possession).
[If there is an issue as to ownership or possession, canvass the evidence/opposing submissions.]
[5-6160] Suggested direction — taking the vehicle for the purpose of driving it
In this case, the direction will be as above in relation to the taking involving movement, however minimal, of the conveyance by the act of the accused; ownership or possession, as the case may be; and lack of consent.
The charge is that the accused took the [specify conveyance] without the consent of the [owner/person in lawful possession] for the purpose of driving it. The word “purpose” relates to the accused’s state of mind and the Crown must prove that when they took the [specify conveyance], they took it with that purpose in mind.
You should have regard to all the relevant circumstances before, at the time of and even after, the alleged taking. As there is no direct evidence of the accused’s state of mind at the relevant time, it will be a matter of you drawing an inference or conclusion about the accused’s statement of mind and purpose, taking into account all the surrounding circumstances.
[if in issue, canvass the evidence for the Crown and the accused and opposing submissions. See suggested direction on inferences at [3-150]].
[5-6165] Suggested direction — taking for the purpose of secreting, or obtaining a reward for its restoration or pretended restoration, or for any other fraudulent purpose
[Where the charge is one of secreting
The Crown alleges that the accused had the purpose of hiding the [specify conveyance] from [its owner/person in lawful possession] [indicate the Crown case and deal with evidence on the issue and opposing submissions]].
OR
[Where the charge is one of obtaining a reward for its restoration
The Crown alleges that the accused’s purpose in taking the [specify conveyance] was to obtain a reward for its [restoration/pretended restoration] [deal with evidence for the Crown and accused on this issue and the opposing submissions].]
It is not enough for the Crown to prove that the accused took the [specify conveyance] for the purpose alleged. The Crown must also establish that, in doing so, the accused acted fraudulently, that is to say, dishonestly.
In order to establish that they acted dishonestly, the Crown must prove that they had a dishonest state of mind at the time of the alleged taking.
In determining whether their state of mind was dishonest, you should apply the current standards of what is regarded as dishonest by ordinary decent people in the community.
If you accept that the accused took the [specify conveyance] without the consent of the [owner/person in lawful possession] for the purpose of hiding it from [its owner/lawful possessor/insurance company agent/ etc] then it would be open to you to infer from those circumstances that they took the [specify conveyance] dishonestly.
[Deal with evidence for the Crown, and the accused and submissions].
[If the accused raises a claim of right, add
The accused says they had a genuine and honest belief at the time that they took the [specify conveyance] that they had a lawful right to do so. If a person is acting under such a belief, which is genuinely and honestly held, then it can not be said that that person was dishonest in taking the thing in question, even if it was without the consent of the [owner/person in lawful possession].
It doesn’t matter whether in law there was no such right, or whether the accused mistakenly believed that they had such a right, or whether they had any reasonable grounds for such a belief. If that belief existed at the time the [specify conveyance] was taken, then, the state of mind of the accused would not have been dishonest. The Crown must prove that at the time the [specify conveyance] was taken, the accused did not genuinely believe they had a legal right to it.
[Canvass evidence for Crown and the accused on the issue of claim of right and of dishonesty generally, and the opposing submissions].]
[5-6175] Suggested direction — s 154A(1)(b): driving or allowing oneself to be carried in a conveyance knowing it had been taken without the consent of the owner or person in lawful possession
[Deal with issues of taking and lack of consent, as essential elements of the charge which the Crown must establish beyond reasonable doubt, adapting what is said above for that purpose].
The Crown must also prove that before the accused drove the [specify conveyance] it had been taken without the consent of the [owner/person in possession] [direct the jury in terms of the accused driving it, that is, being in control of the method of propulsion of the conveyance and of its braking and other mechanisms].
[Where it is alleged that the accused allowed himself or herself to be carried in or on the conveyance, after dealing with the requirement of a previous non-consensual taking, add
The Crown must also establish that the accused allowed themself to be carried [in/on] the [specify conveyance] in the knowledge that it had previously been taken without the consent of the [owner/person in lawful possession]. “Knowledge” is a state of mind and it must exist at the time when the accused, voluntarily entered [in/on] the [specify conveyance] and permitted themself to be carried [in/on] it.
Being a state of mind existing in the past, it is generally a matter to be inferred from all the relevant circumstances, but it is essential that the Crown show that the accused had the knowledge that the [specify conveyance] had been taken beforehand without the consent of the [owner/person in possession].
[Deal with the evidence relied upon as to knowledge by the Crown and the accused and opposing submissions and also, if in issue, when that knowledge was acquired and the voluntariness of the accused’s act in allowing himself or herself to be so carried, which may arise, for example, if the knowledge was acquired whilst the conveyance was in motion and he or she could not safely get out or off.] ]
[5-6180] Notes
- 1.
-
Section 125 of the Crimes Act 1900 provides that a bailee of any property who fraudulently takes or converts that property to their own use, or the use of any person other than the owner, shall be deemed guilty of larceny. The relevant elements of the offence under s 125 are that the accused: (i) was in possession of property as a bailee; (ii) took or converted the property to their own use; and (iii) did so fraudulently: Liristis v DPP (NSW) [2016] NSWCA 66 at [4]–[5]. A person in lawful possession of something can steal it by fraudulently converting it to his or her own use; that is, by dealing with the property in a manner inconsistent with the rights of the owner: Liristis v DPP at [6]; Ilich v The Queen (1987) 162 CLR 110 at 124.
- 2.
-
If an accused is in possession of property recently stolen, this may be evidence the accused stole or received the property: R v Bellamy (1981) 3 A Crim R 432; Saleam v R (1989) 16 NSWLR 14; 39 A Crim R 406; R v Cross (1995) 84 A Crim R 242; R v Mahoney [2000] NSWCCA 256. For further discussion, see [4-000] Recent possession.
- 3.
-
Section 10F of the Crimes Act provides that offences of larceny committed outside NSW may be prosecuted in NSW if the offence was committed by a “public official” and involves public money of the State or property held by the public official for or on behalf of the State of NSW.
- 4.
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Where a serious offence is charged, a lesser alternative offence should generally be left to jury where it is a viable outcome on the evidence. See [5-6640] Alternative verdicts for robbery and stealing from the person and [2-200]—[2-210] Alternative verdicts.