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Theft and Intention

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February 18, 2016

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A case came across my desk this week in which the question of a person's intention in theft cases reared its interesting head.

The case involved a piece of property that was taken. It didn't belong to the person who took it, and the person knew this. One week later, this person returned the property. In fact, it seems to have been returned in better condition than when the property was taken. Police charged this person with theft.

There was more to the story than that. But it still raises the question: by returning the property, does this constitute theft?

In Victoria, theft is an offence under section 74 of the Crimes Act 1958 and is punishable by up to 10 years imprisonment. It is commonly dealt with in the Magistrates' Court however more serious cases are heard in the County Court.

A person is guilty of theft if he or she "dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it".

The fact that this person dishonestly appropriated property belonging to another is not in question. At the very least they interfered with the rights of the owner of the property or assumed the owner's rights for the period they had it – this is what is meant by "appropriate". It was someone else's property, and the appropriation was dishonest because the person knew the property was not theirs and that they had no legal right to it. The issue here is what was the person's intention.

Judges and Magistrates' are not mind-readers. So in criminal cases Police usually try to prove an accused person’s intention by asking the court to infer it from their actions or something they said. In theft cases, Police must prove the accused's intention to permanently deprive the other person of the property existed at the time the property was appropriated.

If the court is satisfied that the accused only intended to temporarily deprive the owner of their property, the Police have not proven the charge. This is also the case if the accused had not yet decided how the property was to be disposed of. The exception to this general rule is where the accused intends to treat the property as their own or dispose of it regardless of the owner’s rights. An example would be if the person hadn't decided what to do with the property when it was taken, but later sold it.

In the case on my desk, it appears there is no other evidence of the person's intention. It will have to be inferred from their actions. The fact that the property was returned a week later (in better condition) and there is a valid reason for the delay, leaves a reasonable argument that the only inference the court can draw is that the person intended to temporarily deprive the owner. If so the person must be found not guilty.

Ultimately each case will turn on its facts and the nature and strength of the Police evidence. Assessing that evidence and determining if a defence such as this exists is a complex task, and you should seek professional legal advice from someone who only practices in criminal law if you have been charged or suspect you will be charged with theft.

About the Author

John is partner of Armstrong Legal and head of the Criminal Law Division. The experience John possesses, being a high quality mix of defence and prosecution skills, together with his team at Armstrong Legal, mean you can be certain of accurate, dependable and practical advice on how your matter can dealt with.

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