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7.5.1.2 - Charge: Theft (Extended)

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The Elements

I must now direct you about the crime of theft. To prove this crime, the prosecution must prove the following 3 elements beyond reasonable doubt:

One - the accused appropriated property that belonged to another person.

Two - the accused intended to permanently deprive that person of his or her property.

Three - the accused acted dishonestly.

I will now explain each of these elements in more detail.

Appropriation of Property Belonging to Another

The first element that the prosecution must prove is that the accused appropriated property that belonged to another person.

There are three parts to this element:

[If it is not disputed that the thing stolen was property belonging to another, add the following shaded section]

In this case, it is alleged that NOA appropriated [identify property]. It is not disputed that [describe item] is property, nor that this [identify property] belonged to another person, NOC, at the relevant time. The main issue for you to determine in relation to this element is whether NOA appropriated that property.

Appropriation

[If, in the circumstances of the case, appropriation means taking without consent, add the following shaded section]

Although the word "appropriation" has a technical legal meaning, and includes many different types of acts, here it simply means to take something without the owner’s consent.

In this case, the prosecution alleged that NOA took the [identify property and summarise prosecution evidence and/or arguments]. The defence denied this, arguing [insert defence evidence and/or arguments].

[If, in the circumstances of the case, appropriation means something other than taking without consent, add the following shaded section]

The word "appropriation" has a technical legal meaning, and includes many different types of acts. For example, it includes physically taking an object without the owner’s consent.

However, appropriation is not limited to physically taking an object, in the sense of grabbing it with the hands. The law says that any assumption of a person’s property rights that adversely interferes with those rights amounts to an "appropriation".

This means that a person appropriates property whenever s/he:

[If relevant to the circumstances of the case, add: The accused does not need to have interfered with all of the owner’s property rights. S/he only needs to have interfered with any one of those rights.]

In this case it is alleged that NOA appropriated the [identify property] by [describe the form of appropriation; the findings of fact necessary for the jury to find that the accused appropriated the property; and the prosecution evidence and/or arguments concerning appropriation]. The defence denied that NOA appropriated the property, arguing [insert defence evidence and/or arguments].

[If consent is in issue, add the following shaded section]

If you find that NOC consented to NOA [describe form of appropriation] the [describe property], then NOA will not have appropriated that property. [1] An "appropriation" requires the accused to have acted without consent.

It is important to note that it is not for the defence to prove that NOC consented. It is for the prosecution to prove that s/he did not. If the prosecution cannot prove beyond reasonable doubt that NOC did not consent, then this first element will not be met.

It is for you to determine, based on all the evidence, whether NOA appropriated property that belonged to another person. It is only if you are satisfied beyond reasonable doubt that NOA [describe form of appropriation and identify property], that this element will be met. If you are not satisfied that this is the case, then NOA will be not guilty of theft.

Property

[If there is an issue about whether the thing appropriated was property, add the following shaded section]

The second part of this element requires the thing appropriated to be "property".

"Property" is also a technical legal term, which includes many different things. It does not only refer to physical objects.

Of relevance to this case, [describe relevant type of property] is a type of "property". This means that this part of the first element will be met if you are satisfied that what NOA appropriated was [describe type of property].

The prosecution argued [Insert prosecution evidence and/or arguments]. The defence denies that this was the case, arguing [insert defence evidence and/or arguments].

For this element to be satisfied, you must find that [explain findings necessary for the relevant item to be classified as property]. If you are not satisfied that this was the case, then the accused will be not guilty of theft.

Belonging to Another

[If there is an issue about whether the property appropriated belonged to another, add the following shaded section]

The third part of this element requires the thing appropriated to have belonged to another person at the time of the appropriation.

The law says that property "belongs" to anyone who has possession or control of that property, or who has any other proprietary right or interest in it. This includes [insert relevant example]. [2]

In this case the prosecution alleged that the [describe property] belonged to NOC. [Insert prosecution evidence and/or arguments]. The defence denied this, arguing [insert defence evidence and/or arguments].

[If there is uncertainty about which third party the property belonged to, add the following darker shaded section]

The prosecution does not need to prove who the property actually belonged to, as long as they can prove that it belonged to someone other than the accused.

[If it is alleged that the accused had a property right in the relevant property, add the following darker shaded section]

It does not matter if you find that the accused had [describe property right]. If another person also had [describe property right] that was appropriated, then for the purposes of this element the property belonged to another person.

[If it is alleged that the complainant had abandoned the relevant property, add the following darker shaded section]

If you find that NOC had abandoned the [describe property], giving up all ownership rights to it, then that property will no longer have belonged to him/her when it was appropriated.

However, there is a difference between abandoning property and losing it. If NOC had only lost the [describe property], then it still belonged to him/her, even though s/he didn’t know where it was.

It is for the prosecution to prove beyond reasonable doubt that NOC had not abandoned the property. If they cannot do this, then NOA will be not guilty of theft.

Intention to Permanently Deprive

The second element that the prosecution must prove is that, when the accused appropriated the property, s/he intended to permanently deprive the owner of it. That is, s/he intended that the owner would never get the property back.

It does not matter whether the accused intended to keep, sell, give away, destroy or hide the appropriated property. If his/her intention was that the owner would not get it back, then s/he will have had the necessary intention.

[If the accused may not yet have formed the relevant intention when s/he appropriated the property, add the following shaded section]

For this element to be met, the accused must have already decided not to return the property to its owner when s/he appropriated it. This element will not be satisfied if, when the accused appropriated the property, s/he was not yet certain whether or not s/he would give it back – only deciding later that s/he was going to keep it.

[If the accused may have only had an intention to temporarily deprive the owner of his/her property, add the following shaded section]

The accused’s intention must have been to permanently deprive the owner of the property. This element will not be met if s/he only meant to deprive the owner of his/her property temporarily, and then to give it back to him/her.

[If it is alleged that the accused was going to return the property only after its nature had been fundamentally changed, add the following darker shaded section]

However, if the accused was only planning on returning the property after its nature had been fundamentally changed, you may find that s/he intended to permanently deprive the owner of that property. This is because, although it may seem that s/he intended to return the owner’s property, in reality s/he did not intend to give back what s/he took – s/he intended to return something that was completely different.

That is what the prosecution argued happened here. [Insert prosecution evidence and/or arguments]. The defence denied this, alleging [insert defence evidence and/or arguments].

If it is alleged that the accused was only borrowing the property, add the following shaded section

In this case the defence alleged that the accused did not intend to keep the property in question, but was merely borrowing it. [Identify relevant evidence and/or arguments.]

It is not theft to borrow something if the borrower intends to return that property. This is true even if the borrowing is done without permission.

[If the borrowing may have amounted to an outright taking, add the following darker shaded section]

[Warning: this direction will only be relevant in exceptional cases. See the discussion of s73(12) in Theft.]


However, if the accused borrowed the property for a period, or in circumstances, which made it equivalent to an outright taking or disposal, then the law says that s/he will have had an intention to permanently deprive the owner of the property. This will be the case even if s/he intended to give the property back eventually.

That is what the prosecution alleged happened here. [Insert prosecution evidence and/or arguments]. The defence denied this, arguing [insert defence evidence and/or arguments].

[If it is alleged that the accused intended to replace the money or goods appropriated, add the following shaded section]

In this case, you have heard evidence that although NOA took [money / describe object] from NOC, s/he intended to replace it.

Even if you find this to be the case, that does not mean that NOA did not intend to permanently deprive NOC of his/her property. Unless s/he was planning on returning to NOC the exact same [notes / coins / object] that s/he took, NOA will have had an intention to permanently deprive NOC of his/her property. Returning an equivalent [amount of money / item] is not sufficient.

[If the appropriated property is a motor vehicle or aircraft, add the following shaded section]

A special rule applies where an accused is charged with the theft of [a motor car/ an aircraft]. The law says that proof that the accused took, or in any way used the [car/ aircraft] without the consent of the [owner / person who was in lawful possession] is conclusive evidence that the accused intended to permanently deprive the owner of that vehicle.

This means that if you are satisfied that NOA appropriated the vehicle, and that s/he did not have the permission of [the owner / someone entitled to give that permission], then this element will be proven.

[If the accused did not have an intention to permanently deprive, but may have had an intention to treat the property as his/her own, add the following shaded section]

[This direction is based Crimes Act 1958 s73(12). It should only be used in exceptional cases. See Theft for further information.]

There is one exception to the rule that the accused had to intend to permanently deprive the owner of his/her property. This arises where, despite not having such an intention, the accused appropriated the property intending to treat it as his/her own to dispose of regardless of the owner’s rights.

[If it is alleged that the accused parted with the property under a condition as to its return that s/he may not have been able to perform (e.g. by pawning the property), add the following darker shaded section]

The law says that a person will have done this if, for his/her own purposes and without the owner’s consent, s/he parted with the property under a condition that s/he may not be able to meet.

The prosecution alleges that that was the case here. [Insert prosecution evidence and/or arguments.] The defence denies this, arguing [insert defence evidence and/or arguments].

If you are satisfied beyond reasonable doubt that the accused did intend to treat the [describe property] as his/her own to dispose of regardless of NOC’s rights, then this element will be proven, even if NOA ultimately intended to give back the property.

[If there is evidence that the property belonged to the complainant in one of the special senses described in section 74 (e.g. as a person with a right to enforce a trust, or as a person entitled to restoration of property following mistaken delivery), an additional direction will need to be given concerning the intention to permanently deprive. See Theft for further information.]

 

Dishonesty

The third element that the prosecution must prove is that at the time of the appropriation, the accused was acting dishonestly.

In this context, "dishonesty" does not have its ordinary meaning. It is given a special legal meaning. The basic legal meaning is that people act dishonestly when they appropriate property if they do not believe that they have a legal right to take that property.

[If other s72(3) beliefs are raised on the evidence, add the following shaded section]

The law also says that people act dishonestly when they appropriate property if they:

[Add relevant bulleted paragraphs]

For this element to be met, the prosecution must prove that the accused did not have [this/any of these/either of these] belief(s). If it is reasonably possible that the accused did have [this/one of these] belief(s), then s/he will not have acted dishonestly.

Belief in Legal Right

[If there is evidence that the accused believed s/he had a right to the property, add the following shaded section]

In this case, the defence alleged that NOA was not acting dishonestly when s/he appropriated the [describe property] because s/he believed that s/he had a legal right to take the property. [Describe defence evidence and/or arguments.]

If the accused genuinely had this belief s/he will not be guilty of theft, even if his/her belief was legally wrong. However, s/he must have believed that s/he had a legal right to take the property. It is not sufficient for him/her to have believed that s/he had a moral right to the property.

[If the circumstances of appropriation were potentially dishonest, add the following darker shaded section]

The issue here is solely whether the accused believed s/he had a legal right to take the property. S/he does not need to have believed that s/he had a legal right to take the property in the way that s/he did. Even if the accused knew that s/he should not take the property in that way, or acted illegally in the way that s/he took it, she will not be guilty of theft if s/he believed s/he had a legal right to the property.

Belief that the Owner Would Have Consented

[If there is evidence that the accused believed the owner would have consented, add the following shaded section]

In this case, the defence alleged that NOA was not acting dishonestly when s/he appropriated the [describe property] because s/he believed that, if the owner had have known of the appropriation and the circumstances surrounding it, s/he would have consented. [Describe defence evidence and/or arguments.]

This question relates to the accused’s state of mind. The question is whether NOA believed, at the time s/he appropriated the property, that NOC would have consented. It does not matter whether or not NOC actually would have consented, as long as NOA genuinely believed that s/he would have if s/he had been aware of all the circumstances.

Belief that the Owner Could Not Be Discovered

[If there is evidence that the accused believed the owner could not be discovered, add the following shaded section]

[Note: this explanation cannot be relied upon by a person who received the property as a trustee or personal representative.]

In this case, the defence alleged that NOA was not acting dishonestly when s/he appropriated the [describe property] because s/he believed that the owner of the property could not be discovered by taking reasonable steps. [Describe defence evidence and/or arguments.]

This requires the accused to not only have believed that s/he could not identify or locate the owner of the property, but to have believed that s/he could not do so even if s/he took reasonable steps.

Willingness to Pay

[If there is evidence that the accused was willing to pay for the property, add the following shaded section]

[Note: while this direction is primarily relevant to a claim of belief in consent, it may also be relevant to a claim of legal right ]

In this case, you have heard evidence that, at the time NOA took the property, s/he was willing to pay for it. This does not necessarily mean that s/he was not dishonest. The law says that the appropriation of another person’s property may be dishonest even if the accused is willing to pay for it.

Mistaken Belief

[If the accused’s belief may have been incorrect or unreasonable, add the following shaded section]

It is important to note that the accused’s belief does not need to have been correct, or even reasonable. All that is necessary is that it is reasonably possible that NOA genuinely held that belief. If s/he did, s/he will not have acted dishonestly, even if his/her belief was wrong or unreasonable.

However, the reasonableness of the accused’s alleged belief is not irrelevant. In determining whether or not NOA in fact held that belief, you may consider whether his/her belief was reasonable in all the circumstances. This is because the more reasonable NOA’s belief was, the more likely you might think it is that s/he actually believed what s/he says s/he believed.

Onus of Proof

[If dishonesty is in issue, add the following shaded section]

I want to reiterate that it is for the prosecution to prove that the accused was acting dishonestly. It is not for the defence to prove that s/he acted honestly.

In this case, that means that the prosecution must prove, beyond reasonable doubt, that NOA did not believe that [describe relevant belief]. The defence do not have to prove that s/he had that belief.

In determining whether the accused acted dishonestly, your sole focus should be on his/her state of mind at the time s/he [describe relevant act]. The issue is not whether you think s/he was right or wrong to do what s/he did, but whether s/he had the relevant belief at that time.

It is only if you are satisfied, beyond reasonable doubt, that the accused did not believe [describe relevant belief] that this third element will be met.

 

Summary

To summarise, before you can find NOA guilty of theft, the prosecution must prove to you, beyond reasonable doubt:

One – that NOA appropriated property belonging to NOC; and

Two – that NOA intended to permanently deprive NOC of that property; and

Three – that NOA appropriated the property dishonestly.

If you find that any of these elements have not been proved beyond reasonable doubt, then you must find NOA not guilty of theft.

Notes

[1] This part of the charge is based on the assumption that the issue of consent was outlined in the judge’s summary of the defence arguments re appropriation. If this was not the case, then it will need to be modified accordingly.

[2] If it is alleged that the property was subject to a trust, held under a fiduciary obligation, subject to an obligation to make restoration, or the property of a corporation sole, this section may need to be expanded. See Theft for further information.

 

Last updated: 5 December 2007

See Also

7.5.1 - Theft

7.5.1.1 - Charge: Theft (Short)

7.5.1.3 - Checklist: Theft