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PROPERTY OFFENCES 

GENERAL OVERVIEW

There are a wide variety of property offences under both the "common law" and the statute law made by the Parliament.

The "common law" is the law which has been built up by judges making decisions over the centuries. The judges' decisions are known as "precedents" and often are referred to by the Courts today.

The main statute law passed by the Parliament of New South Wales which deals with property offences is the Crimes Act 1900, which has been amended by the Parliament many times since it was first enacted.

Property offences often involve extremely complicated relationships between:

  • the property itself;
  • whose property it is and whether or not it is in someone's possession; and
  • what relationship or understanding there is between the accused and the victim about the property.

While it is not possible to give a comprehensive analysis of all property offences in the short amount of space available, we can provide an overview of the most common property offences which will give you some information about the types of issues which arise in many property offences.

The most common offences are larceny, receiving and malicious damage, which we will deal with in turn below.

If you are in any doubt, please obtain legal advice as soon as possible and remember that you have the right to remain silent and the right to legal advice if the police question you in relation to any alleged offence. 

LARCENY

It is an offence under the Crimes Act 1900 in New South Wales to commit larceny and the maximum penalty given by the statute is 5 years gaol.

The meaning or "elements of the offence" of larceny are governed by the common law, or judge-made law, which have built up over the years with judicial decisions. The elements of the offence of larceny are well-established and have been summarised by the High Court of Australia as:

  • a person must, without the consent of the owner,
  • fraudulently and without claim of right made in good faith,
  • take and carry away,
  • anything capable of being stolen,
  • with intent at the time of such taking permanently to deprive the owner of that property.

As you can see, each of these elements involves certain facts which would have to be proved beyond reasonable doubt by the prosecution for the offence to be proved in Court.

Clearly, if a person walks into a shop and takes a jumper from a rack in the shop and walks out of the shop, intending to keep the jumper for himself or herself, and having no permission or right to do so, that person is guilty of larceny. Shoplifting is the most common form of larceny.

However, if the facts are changed even slightly, it may be the prosecution cannot succeed - for example, if the mental element of the person intending to permanently deprive the owner is not present, then the person does not commit larceny. If the jumper actually already belongs to the person because he or she bought it from the shop earlier that day and happened to leave it in the shop, then there is no larceny because the person has a "claim of right" to the jumper. The variations on the facts are endless and every case in Court depends on its own facts.

It is always important to seek professional legal advice if you are charged or may be charged with larceny, because it is commonly charged by police but in fact the elements of the offence can be quite complicated to prove in Court. 

RECEIVING STOLEN PROPERTY

It is an offence under the Crimes Act 1900 in New South Wales for a person to receive or dispose of any property which has been stolen if the person knows that that property has been stolen. The maximum penalty listed in the statute is gaol for 10 years.

This offence is often linked in with charges of larceny. The charge of receiving may be seen as an attempt by the Parliament to deter people from knowingly receiving stolen property from thieves, usually intending then to sell the property in the black market.

You can see, however, that the prosecution must prove both the actual, physical receiving of the stolen property and the actual knowledge of the receiver that the property is stolen.

The Courts have interpreted and developed the law on receiving over the years, especially in relation to the mental element of the offence.

It is not enough simply to be suspicious that the property is stolen. To be guilty of the offence, the receiver must have an actual belief that the property is stolen. The Court will take into account all the circumstances when making findings of fact on this point, including how the property was transferred to the person receiving it, but there is a high standard of proof which the prosecution must meet in order to prove beyond reasonable doubt that the accused actually knew that the property was stolen.

Once again, professional legal help could be vital in dealing with this charge. 

MALICIOUS DAMAGE

This offence often arises in the context of domestic disputes or drunken behaviour.

It is an offence under the Crimes Act 1900 in New South Wales to maliciously destroy or damage property belonging to another person.

The maximum penalty listed in the statute for the offence is 5 years gaol, however, if the destruction or damage is caused by fire or explosives, the penalty is a maximum 10 years gaol.

If the offender intends to cause bodily injury to another person as a result of the malicious destruction or damage of the property, then the maximum penalties are increased to 7 years gaol in the general case, or 14 years gaol if fire or explosives are used to cause the destruction or damage.

The words "malicious" and "malice" have been interpreted by the Courts, and without attempting to analyse the many decisions in detail here, a general overview of the meaning of "malice" is that it requires either an intention or recklessness on the part of the accused, both of which require a foresight on the part of the accused of the consequences of his or her actions.

Therefore, you can see that the law is relatively complicated in this area as many cases will turn on the particular state of mind of the accused person. What degree of foresight did the person exercise? Was there an intention to damage or destroy property? Were alcohol or drugs involved and was the accused under the influence of alcohol or drugs at the time? Did that affect his or her mental capacity to have "malice"?

At the other end of the scale, an "accident" which is wholly unintended and is not reckless, such as accidentally slipping over and thereby causing damage, is not malicious damage because the mental element is lacking.

Once again, professional legal advice may be of great assistance to you if the police are intending to prosecute you, or have already charged you for this offence. Remember that you have the right to remain silent and the right to obtain legal advice. The police must assist you to speak to a lawyer if you are about to be charged or if you have been charged with an offence. 

OVERVIEW OF POLICE POWERS

Police have a duty to investigate if a complaint is made to them of a property offence.

You are NOT obliged to take part in an audio / video interview, make any written statement or sign any police notes - ignore anything said by the police which gives the impression that you have to take part in these things because in police investigations of property offences you are entitled to remain silent.

Police have the power to stop and search a person if they have a reasonable suspicion that the person has anything that is stolen or otherwise unlawfully obtained, or anything which has been used or is intended to be used in the commission of an indictable offence.

Similarly, the police have the power to stop and search a vehicle if they have a reasonable suspicion that there is anything in the vehicle which is stolen or otherwise unlawfully obtained or anything which has been used or is intended to be used in the commission of an indictable offence.

If the police propose to search you and/or your vehicle and you do not want them to do so, do not resist the police but ask that they formally record in their notebooks that you have objected to the search. The admissibility in Court of any evidence found by the police can be challenged later. Do not physically resist police or use any swear words or other offensive language, as it is an offence to do these things. Sometimes people are cleared of any wrong-doing in respect of what the police were investigating them for, only to be found guilty of resisting police or using offensive language.

The police may detain you without laying any charge against you for a period of 4 hours. The police are obliged to give you a statement of your rights if you are arrested and taken into police custody, and this statement of your rights includes a statement of the period of 4 hours during which you can be detained without being charged with an offence by police.

The only way that the police can extend this time, up to a maximum of another 8 hours, is by applying to a Magistrate or Justices of the Peace for a warrant to extend the investigation time.

If you are under 18, intellectually disabled or physically impaired, an Aboriginal or Torres Strait Islander or someone from a non-English speaking background then you are entitled to have a support person with you while you are in police custody.

The police are obliged to help you to arrange the attendance of the support person at the place where you are being detained, provided that you tell the police that you want that support person to attend.

The police are obliged to keep a written record of what they do to you in terms of where you are and what stage the investigation has reached at what time, and you are entitled to a copy of that information.

The police will prepare a summary of the facts in your matter known as a "Facts Sheet" and you are entitled to a copy of the "Facts Sheet".

The police are entitled to refuse you bail but only in circumstances where they have a genuine reason for believing that you will not attend Court, and the police must provide reasons if they refuse bail. You are then entitled to be brought before the next available Magistrate to ask for bail and the police must ensure that you are taken to Court for the purpose of appearing before a Magistrate for your bail application. 

THE IMPORTANCE OF TAKING NOTES AT THE TIME OR SOON AFTERWARDS

It is extremely important to take notes of what occurs in relation to a property offence as it occurs, or if this is impossible, then as soon as possible after the event.

You will be at a tremendous advantage if you are able to do this.

As was mentioned in the free information page on property offences, the law is quite complicated in some areas of property offences and often a prosecution will succeed or fail depending on what may seem to be minor, even trivial, detail.

The reason for this is that many property offences have been developed by the common law over centuries. This means that judges have developed the law by making decisions in individual cases, these decisions have been recorded and later judges have referred back to their reasoning, thus building up a body of law which has become known as the "common law".

Judges often distinguish earlier cases on their facts, that is to say, the judge will refuse to apply the reasoning or decision in an earlier case because it is sufficiently different from the present case.

Therefore, the individual facts of your case may prove vital in the determination of the outcome of your case. 

FURTHER INFORMATION

This information is provided by the firm of Ryan & Bosscher Lawyers who specialize in this area of law. They are located at Level 1, 255 Castlereagh Street Sydney 2000, or call them on (02) 9266 0708

Ryan and Bosscher, Lawyers, is a specialist Criminal Law firm committed to providing quality service to clients. There are very few firms practising exclusively in the area of Criminal Defence, and with a reputation of hard headedness, dogged determination and fearlessness, Ryan and Bosscher has become a leading Criminal Defence firm in New South Wales. We are committed to Justice and the protection of an individual's rights. Our specialisation ensures provision of the highest standard of representation to any person charged with a criminal offence. Our familiarity with Criminal Law also ensures that Counsel briefed for complex advocacy matters are also highly qualified in the Criminal Defence field.

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