LARCENY | STEALING OR THEFT | SECTION 117 CRIMES ACT
LARCENY
Larceny (stealing or theft) is a criminal offence under the section 117 Crimes Act 1900 (NSW), which states:
Whosoever commits larceny, or any indictable offence by this Act made punishable like larceny, shall, except in the cases hereinafter otherwise provided for, be liable to imprisonment for five years.
WHAT THE PROSECUTION NEED TO PROVE?
To secure a guilty verdict for larceny, the prosecution must prove the following elements beyond a reasonable doubt:
- Property belonging to someone other than the accused,
- Was taken and carried away by the accused,
- Without the consent of the owner of the property,
- With the intention of permanently depriving the owner of it,
- Without a claim of right made in good faith, and
- Taken dishonestly.
STANDARD OF PROOF
Section 141 Evidence Act 1995 states:
In criminal proceedings, all the elements of an offence must be proved beyond a reasonable doubt by the prosecution.
The Courts have held that the expression “proved beyond reasonable doubt” mean exactly what they say – proof beyond reasonable doubt.
This is the highest standard of proof known to the law. The test in a criminal case is not whether the accused is guilty. In a criminal case the prosecution must prove the accused’s guilt beyond reasonable doubt. A suspicion, even a strong suspicion, that the accused may be guilty is not enough. Further a decision that the accused has probably committed the offence also falls short of what is required to prove an offence beyond reasonable doubt.
DEFENCES
Defences available to an accused person facing a larceny (stealing or theft) charge include:
HONEST AND REASONABLE MISTAKE OF FACT
If the defendant can raise a reasonable doubt as to their knowledge at time of the offending, then they are entitled to an acquittal.
DURESS
The law recognises that in some cases, a person who commits what would otherwise be an offence should be excused for committing the offence. The law recognises that sometimes people do not have a choice, and their choices have been overborne by a serious threat to either them or their family.
To establish duress, the following three elements must be satisfied:
- because of threats of death or really serious injury to them or a member of their family,
- being threats of such a nature that a person:
- of ordinary firmness and strength of will, and
- of the same maturity and sex as the accused, and
- in the accused’s position,
- would have given in to them and committed the crime demanded of them.
NECESSITY
The legal defence of necessity arises when conduct that would otherwise amount to a criminal offence is undertaken in order to avoid some immediate peril or irreparable harm.
HONEST CLAIM OF RIGHT
A genuine, honest belief, regarding a legal entitlement to property or money in the hands of another is a defence.
For a consultation with a Criminal Lawyer, call AMA Legal on (02) 8610 3764.
