There are ways and ways of thieving

"Finders keepers" is the worst piece of legal advice ever.

It's right up there with "An eye for an eye".

In the Letters to the Editor section recently, Peter Johnstone, of Wyndham, touched upon some difficult definitions of theft relating to lost or abandoned goods.

He thought rubbish put out for collection could be deemed abandoned and he pondered about keeping lost property.

Let's look at the basic principles of theft.

It's all a bit difficult but if you keep in mind that theft can be committed by taking, finding, keeping, altering or converting then you are almost there.

If it smells dishonest, a crime almost certainly exists to cover it.

The statutory law is found in sections 218-230 of the Crimes Act 1961 and in the definition of "claim of right" in section 2.

Section 219 states: "Theft or stealing is the act of dishonestly and without claim of right, taking any property with intent to deprive any owner permanently of that property."

It then states that the intent to deprive the owner permanently includes intent to deal with that property in such a manner that it cannot be returned to the owner in the same condition.

A co-owner is guilty of theft if he deals with the property in a way that is inconsistent with the rights of the other co-owner.

So if a brother and sister jointly own a car, and the brother sells it and pockets the money, then the brother is guilty of the theft of his sister's share in the car.

Theft is committed "by taking" at the time the offender takes the property.

The thief who puts an item in his pocket before leaving the shop, intending to steal it, can be convicted of theft at that stage because the act and the necessary mental element is complete.

The shop does not have to wait until he exits the building.

The prosecution must prove beyond reasonable doubt a physical act and an accompanying mental act.

These are called in Latin the actus reus and the mens rea.

As well as the normal defences of "It wasn't me," or "I didn't realise I was doing it," you also have a defence of what is known as claim of right.

"Claim of right" allows you to claim you made a mistake of fact in committing some act.

Your partner might ask you to pick up a package from a particular place.

You go to the wrong place and pick up someone else's package.

If you are believed in this mistake of fact then you have a defence called claim of right.

There are also some specialist sections.

Section 220 states that if you receive any property that requires you to account to another person for it, then you commit theft if you intentionally fail to account to the other person.

Under section 222 you may be convicted of theft of another person's property even though you were married to or in a civil union or a de facto relationship with each other at the time of the theft.

Sections also cover the dishonest taking or copying of trade secrets.

This amounts to theft.

Where goods have been abandoned then nobody owns them and they are not capable of being stolen.

But lost goods are not abandoned goods.

However, a genuine belief that the goods have been abandoned will provide a defence because the prosecution has to prove both a guilty mind as well as the guilty act.

A householder who puts out rubbish for collection does not abandon that rubbish.

It remains in his or her ownership until collected and then passes on to the local authority.

But if that rubbish contains goods that have obviously been accidentally thrown out, such as a diamond necklace, then the rubbish collector would be found guilty of theft if he pocketed the necklace.

Theft usually involves the concept of taking.

But theft can also involve finding and keeping or converting to your own use the property of another which has been accidentally left on your property.

A new definition in 2003 imports the concept of dishonestly using or dealing with property against the interests and rights of the true owner.

If you borrowed a bike with the consent of the owner, then your possession and use of the bike of course does not constitute theft.

But if the owner forgot who he lent the bike to and you sold it at an auction and pocketed the money, then you would be guilty of theft.

If a couple of bank robbers being pursued by the police tossed a bag of cash on to your section and you remained mute about it for a couple of months and then, thinking the heat was off, used the money for your own purposes, you would be guilty of theft.

You had not taken the money in the first instance but you subsequently used or dealt with it in a way that was dishonest.

Courts have frequently said a finder who knows who the owner is, or believes the owner could be found by taking reasonable steps, but decides to keep the found property, will be guilty of theft.

That just accords with common sense.

But does everyone appreciate that?It means that if you find a $10 note on the footpath you cannot automatically keep it.

You must first consider reasonable steps you might take to discover its owner.

So the old saying "Finders keepers" is incorrect . . . unless you wish to risk some jail time.

• Michael Guest is a former lawyer and District and Family Court judge.

 

 

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