Offences Relating to Property - Comprehensive Notes

Offences Relating to Property

Criminal law LAWS2708, Semester 1, 2025, Andreas Schloenhardt.

Purpose

The purpose of property law is to protect a person’s ownership, possession, and similar rights, whilst preventing and punishing infringements of these rights.

Selected Offences in Queensland

• Offences involving stealing, ss390-417A
• Burglary and unlawful entry, ss418-427
• Receiving stolen property, ss433-435
• Fraud, s408C; Identify fraud, s408D
• Computer hacking, s408E
• Property damage and arson, ss458-479

Overview of Topics

1. Offences involving stealing
2. Burglary and related offences
3. Receiving
4. Offences of dishonesty
5. Property damage and destruction

Offences Involving Stealing

Historical Development

• (Old) Common Law: Originates from old common law.
• Queensland (1899): Present in Queensland.
• UK, Vic, SA (1968-): Modern Theft Laws.

Larceny

• Common Law Definition: A person steals who, without consent of the owner, fraudulently and without a claim of right made in good faith, takes and carries away anything capable of being stolen with intent, at the time of such taking, permanently to deprive the owner thereof.

Theft

• s72 Crimes Act 1958 (Vic):
  • (1) A person steals if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it.
  • (2) A person who steals is guilty of theft; and ‘thief’ should be construed accordingly.

Stealing (Queensland)

• s391(1) Criminal Code (Qld): A person who fraudulently takes anything capable of being stolen, or fraudulently converts to the person’s own use or to the use of any other person anything capable of being stolen, is said to steal that thing.

Larceny vs. Stealing vs. Theft

Elements of Stealing, s398

1. Physical elements

   • Taking or converting, s391(1)
   • Thing capable of being stolen, s390
   • Belonging to another (‘of any other person’, s391(1))

2. Mental elements

   • Fraudulently: special intention, s391(1), (2)
   • No claim of right, s22(2)

Aggravated Penalties, s398

• ‘Punishment in special cases’
• ‘Stealing’ defined in s391(1) to mean:

Physical Elements of Stealing

Taking or Converting, s391(1)

1. Taking
   • Requires physical movement or dealing with property by physical act (so-called asportation), s391(6)
2. Converting
   • Dealing with the property in a way inconsistent with the right of the owner: Ilich v The Queen (1987)
     • E.g., keeping the property, selling it, changing its appearance, also stealing by bailee, stealing by person who finds lost property if finder knows owner or believes owner can be discovered, s391(4), (5)
   • Not: mere use of property, offer/preparation for sale, mere failure to return (R v Angus [2000])

Things Capable of Being Stolen, s390

• Section 390: anything (a) moveable or (b) capable of being made movable
• Property, s1
  • Animate + inanimate things; Money; Electricity, energy, gas, water; Plants, animals (except wild animals, cf ss1(e), 392(1)); “any property real or personal, legal or equitable, including things in action and other intangible property”, s1

Property Belonging to Another

• Property that does not belong to anyone (or has been abandoned) and property which accused owns and in which nobody else has a proprietary interest cannot be stolen.
• Property may be stolen by the owner if others have proprietary rights in or others possess the thing, cf s391(7).
• Property may be stolen from the owner, including part-owner, s391(2)(a)
• Property may be stolen from any person who has a special property in the thing, s391(2)(b)
• Property may be stolen from any person having possession or control, s391(7)
• Property may be stolen from any person having a relevant interest in the thing, s396

Property Obtained as a Result of Mistake

• Problem: (Lack) of consent is not an element of stealing in Qld. Hence: property passes if transferred with consent of the owner, so property may no longer belong to another person.
  • Is it stealing if property passes because of a mistake by the owner?
    • (1) Is it not stealing because property has passed and consent (and validity of consent) is irrelevant: Colvin & McKechnie, cf R v Potisk (1973)
    • (2) But: ownership does not pass (and stealing may arise) if the mistake was a fundamental one: Illich v R (1987). It is fundamental if it relates to the identity of the person to whom it was transferred; to the identity of the thing that is to be delivered; to the quantity to be delivered.