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Chapter 22: Larceny

 Table Of Contents 

[22.0] Introduction 

This chapter will examine specifically the offence of 'Simple Larceny', as provided for by section 261 of the Penal Code (Ch. 26). 

When interpreting any section of the Penal Code (Ch. 26), section 3 must be considered. That section states: 

'This Code shall be interpreted in accordance with the Interpretation and General Provisions Act and the principles of legal interpretation obtaining in England, and expressions used in it shall be presumed, so far as is consistent with their context, and except as may be otherwise expressly provided, to be used with the meaning attaching to them in English criminal law and shall be construed in accordance therewith.' (emphasis added) 

In that regard reference should be made to the Larceny Act 1916 (UK), see Toritelia v R [1987] SILR 4. 

Section 171 of the Criminal Procedure Code (Ch. 7) states: 

'When a person is charged with stealing anything and – 

(a)                it is proved that he received the thing knowing the same to have been stolen, he may be convicted of the offence of receiving although he was not charged with it; 

(b)               it is proved that he committed an offence against section 273 of the Penal Code (relating to embezzlement), he may be convicted of embezzlement although he was not charged with it; 

it is proved that he obtained the thing in any such manner as would amount, under the provisions of the Penal Code or of any other law for the time being in force, to obtaining it by false pretences with intent to defraud, he may be convicted of the offence of obtaining it by a false pretences although he was not charged with it.'

[22.1] Offence 

Section 261 of the Penal Code (Ch. 26) states: 

'(1) Stealing for which no special punishment is provided under this Code or any other Act for the time being in force is simple larceny and a felony punishable with imprisonment for five years. 

(2) Any person who commits the offence of simple larceny after having been previously convicted of felony, shall be liable to imprisonment for ten years. 

(3) Any person who commits the offence of simple larceny, after having been previously convicted of any misdemeanour punishable under this Part or under Part XXXV of this Code, shall be liable to imprisonment for seven years.' 

[22.2] Wording Of Charge 

'[Name of Defendant] at [Place] on [Date] did steal [specify the property] the property of [specify the name of the complainant].' 

All things capable of being stolen alleged to have been stolen must be specified. Use of the words such as 'and other articles' is objectionable, see R v Douglas (1926) 19 CrAppR 119. 

A charge of 'Larceny' is bad for 'duplicity' if it alleges theft from a number of different complainants on the same day, see R v Ballingsingh (1953) 37 CrAppR 28 at page 29. 

The law relating to 'Duplicity' is examined commencing on page 86. 

[22.3] Circumstances Of Aggravation 

Include these 'circumstances of aggravation' at the end of the abovementioned charge in appropriate cases: 

(2) and the said [specify the name of the defendant] being a person previously convicted of a felony to wit [specify the felony] under section 175 of the Penal Code (Ch. 26) at the [insert the name] [Magistrates'/High] Court on [specify the date]. 

(3) and the said [specify the name of the defendant] being a person previously convicted of a misdemeanour to wit [specify the misdemeanour] punishable under Part XXXV of the Penal Code (Ch. 26) at the [insert the name] [Magistrates'/High] Court on [specify the date].

Section 120 of the Criminal Procedure Code (Ch. 7) states (in part): 

'The following provisions shall apply to all charges and information and, notwithstanding any rule of law or practice, a charge or information shall, subject to the provisions of this Code, not be open to objection in respect of its form or contents if it is framed in accordance with the provisions of this Code – 

[…] 

(c)(iv) 

[…] 

(h) where a previous conviction of an offence is charged in a charge or information, it shall be charged at the end of the charge or information by means of a statement that the accused person has been previously convicted of that offence at a certain time and place without stating the particulars of the offence;' 

As regards proving a previous conviction, refer to page 305.

[22.4] Elements 

A. Defendant 

B. Place 

C. Date

D. Steal

E. Anything Capable Of Being Stolen

F. Complainant

[22.5] Steal

[22.5.1] Defined 

Section 258(1) of the Penal Code (Ch. 26) states: 

'A person steals who, without the consent of the owner, fraudulently and without 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: 

Provided that a person may be guilty of stealing any such thing notwithstanding that he has lawful possession thereof, of, being a bailee or part owner thereof, he fraudulently converts the same to his own use or the use of any person other than the owner.' (emphasis added)

[22.5.2] Fraudulently 

In Toritelia v R [1987] SILR 4 the Court of Appeal examined the term 'fraudulently'. Whilst that term was examined in context of the offence of 'Embezzlement' as prescribed in section 273 of the Penal Code (Ch. 26), the legal reasoning should be adopted when interpreting the same term as prescribed in section 258 of that Code. 

White P stated at page 7: 

'In the United Kingdom the Theft Act 1968 replaced the Larceny Act 1916 but the Solomon Islands provisions have remained unaltered.' 

It is therefore appropriate only to refer to cases which refer to the latter Act for the purpose of interpreting all offences as outlined in Part XXVII of the Penal Code (Ch. 26) which is headed 'Larceny, Embezzlement and Conversion'. 

In Toritelia v R (supra) White P stated at page 12: 

'[T]he question of fact to be determined on all the relevant evidence is whether the prosecution has proved beyond reasonable doubt that the accused did prejudice or take the risk of prejudicing another's right, knowing that he had no right to do so. Throughout the cases the statement of proof of that knowledge is commonly described as proving the accused's "dishonesty".' (emphasis added) 

In Williams & others v Phillips; Roberts & others v Phillips (1957) 41 CrAppR 5 the defendants who were employed as dustmen took property which they collected on behalf of their employer and kept it for their own purpose. Lord Goddard CJ, delivering the judgment of the Court, held at pages 9 – 10: 

'It is not necessary to talk Latin in these cases and use expressions like animus furandi or animo furandi. The question is: were they acting honestly? That is the test. Of course, they were not acting honestly. They know perfectly well what their duty was, what they had to do with this refuse, and that if they appropriated it to their own use they were stealing it.'

[22.5.3] Claim Of Right 

A person has a claim of right if he/she is honestly asserting what he/she believes to be a lawful claim, even though it may be unfounded in law or in fact, see R v Bernhard (1938) 26 CrAppR 137 [[1938] 2 AllER 140; [1938] 2 KB 264] at page 145. 

If a person takes money he/she knew that he/she had no right to take, the fact that he/she may have had a hope or expectation in the future of repaying that money is not a defence and only capable of going to mitigation of sentence, see Toritelia v R (supra) & R v Williams (1953) 27 CrAppR 71; [1953] 1 AllER 1068; [1953] 1 QB 660. 

See also: R v Cockburn (1968) 52 CrAppR 134; [1968] 1 WLR 281; [1968] 1 AllER 466; R v Clayton (1920) 15 CrAppR 45 & R v Gilson & Cohen (1944) 29 CrAppR 174. 

The law relating to 'Honest Claim Of Right' is examined commencing on page 431.

[22.5.4] Takes

[A] Statutory Provision 

Section 258(2)(a) of the Penal Code (Ch. 26) states: 

'The expression "takes" includes obtaining the possession – 

(i)                 by any trick; 

(ii)               by intimidation; 

(iii)             under a mistake on the part of the owner with knowledge on the part of the taker that possession has been so obtained; or 

(iv)             by finding, where at the time of finding the finder believes that the owner can be discovered by taking reasonable steps.' (emphasis added)

[B] Defined 

In Russell v Smith (1957) 41 CrAppR 198 the defendant was a lorry driver who in the course of his occupation received a greater quantity of goods to deliver than he should. Upon realising the mistake he decided to keep the excess goods for his own purpose. Lord Goddard CJ, with whom Slade & Gorman JJ concurred, stated at pages 204 – 206: 

'The respondent did not know what he had got until, by empting of the lorry at the buyer's premises, he found he had got eight sacks too many. He was never intended to have eight sacks too many and he never intended to take eight sacks too many. He was intending to take the consignment, which the buyer had ordered, into the possession of the buyer. When he found that he had got more than he ought to have, then for the first time he became aware of the mistake which had been made and of the addition that had been made. […] 

[…] 

In this case these eight sacks were not intended to be put into the respondent's lorry; they were not intended to be delivered to the consignee when the rest of the property was delivered. I think it is very much akin to a finding. If a person by inadventure places the sacks in the lorry, it is not very much different from having lost the sacks. In my opinion, therefore, there was a taking. The taking took place when the respondent discovered that he had got the sacks, which were never intended to be given to him and which he must have known were never intended to be given to him at all, except in the sense that they were put on the lorry by mistake.' (emphasis added)

In such circumstances the defendant was guilty of 'Larceny'. 

In R v Ashwell (1885) 16 QBD 190 Lord Coleridge CJ stated at page 225: 

'In good sense it seems to me that he did not take it till he knew what he had got; and when he knew what he had got, that same instant he stole it.' 

See also: R v Thomas (1953) 37 CrAppR 169; R v Hudson (1943) 29 CrAppR 65 at page 71; R v Kindon (1957) 41 CrAppR 208 & Martin v Puttick (1967) 51 CrAppR 272.

[C] Larceny By Finding 

Section 258(2)(a) of the Penal Code (Ch. 26) states (in part): 

'The expression "takes" includes obtaining the possession – 

[…] 

(i)                 by finding, where at the time of finding the finder believes that the owner can be discovered by taking reasonable steps.' (emphasis added) 

The onus is on the prosecution to negative the defence as outlined in section 258(2)(a)(iv) of the Penal Code (Ch. 26) 'beyond reasonable doubt' if there is evidence that the defendant believed that at the time of finding the property he/she did believe that the owner could not be discovered by taking reasonable steps. 

In Thorburn 1 DewCC 387 [3 CoxCC 277] Parke B, delivering the judgment of the Court, stated at page 396: 

'The result of [the] authorities is that the rule of law on this subject seems to be that if a man finds goods that have been actually lost, or are reasonably supposed by him to have been lost, and appropriates them, with intent to take the entire dominion over them, really believing, when he takes them, that the owner cannot be found, it is not larceny; but if he takes them, with the like intent, though lost, or reasonably supposed to be lost, but reasonably believing that the owner can be found, it is larceny.' [word in brackets added] 

In Dolby v Stanta [1996] 1 QdR 138 Williams J of the Court of Appeal, with whom Thomas J and Pincus JA concurred, stated at pages 142 – 144: 

'Abandonment [ie., abandoned / lost] is a common law concept, and although the term has been used in many cases no one has really set out a clear definition of it. In Donoghue v Coombe (1987) 45 SASR 330 von Doussa J said at page 333: 

"The abandonment of goods will not lightly be inferred. Abandonment occurs where an owner is indifferent [ie., does not care] to any future asportation [ie., movement[ of them by others, where the owner leaves them 'for anybody to take (them) away […]. It is possible that the circumstances of the finding, and the nature and condition of the goods, is such that a person may reasonably believe that they have been abandoned, yet at the same time, know, or have the means of ascertaining, the identity of the former owner who abandoned them." 

[…] 

There is common law authority for the proposition that there can be no theft of property which has been abandoned by the owner. […] 

[…] 

Many of the cases indicate that the most critical time is the time of the taking or carrying away of the thing as distinct from the time of finding. […] But those cases also support the proposition that where there is some mark or other feature on or about the thing which indicates ownership and that is ignored by the finder who does nothing to contact a reasonably obvious possible owner, the court may infer that the initial taking was with a fraudulent intent.' (emphasis added) [words in brackets added] 

In Thompson v Nixon (1965) 49 CrAppR 324 Sachs J, with whom Browne J and Parker LCJ concurred, stated at page 329: 

'It seems to me not only odd but wrong that those who find goods and who at the time of the finding have honest intentions towards them cannot be held to have committed any crime at all [, referring to the offence of 'Larceny',] if later they dishonestly sell those goods. That, however, is not a matter which this court can deal with.' [words in brackets added] 

See also: R v Mortimer (1907) 1 CrAppR 21 at page 24.

[22.5.5] Carries Away 

Section 258(2)(b) of the Penal Code (Ch. 26) states: 

'The expression "carries away" includes any removal of anything from the place which it occupies, but in the case of a thing attached, only if it has been completely detached.' (emphasis added) 

In R v Taylor [1911] 1 KB 674 Pickford J, delivering the judgment of the Court, held at page 679: 

'[I]f a man puts his hand into another man's pocket, sizes his purse, removes it from the position in which it was at the bottom of the pocket to the edge of the pocket, and is only prevented from taking it entirely out of the pocket by the accident that it meets an obstruction in the shape of the man's belt, that is sufficient asportation to constitute a simple larceny.' 

See also: Wallis v Lane [1964] VR 293 & R v McDonald [1992] 2 QdR 634.

[22.5.6] Anything Capable Of Being Stolen 

[A] Statutory Provision

Section 257(1) of the Penal Code (Ch. 26) states: 

'Every inanimate thing which has value and is the property of any person, and if adhering to the realty then after severance therefrom, is capable of being stolen: 

Provided that, save as hereinafter expressly provided with respect to fixtures, growing things, and minerals as defined in the Mines and Minerals Act [Ch. 42], anything attached to or forming part of the realty is not capable of being stolen by the person who severs the same from the realty, unless after severance he has abandoned possession thereof.' (emphasis added) 

That section also outlines other 'things' capable of being stolen. 

See: Billing v Pill (1953) 37 CrAppR 174.

[B] Specific Rules 

Section 120 of the Criminal Procedure Code (Ch. 7) states (in part): 

'The following provisions shall apply to all charges and information and, notwithstanding any rule of law or practice, a charge or information shall, subject to the provisions of this Code, not be open to objection in respect of its form or contents if it is framed in accordance with the provisions of this Code – 

[…] 

(c)(i) the description of property in a charge or information shall be in ordinary language, and such as to indicate with reasonable clearness the property referred to, and, if the property is so described, it shall not be necessary (except when required for the purpose of describing an offence depending on any special ownership of property or special value of property) to name the person to whom the property belongs or the value of the property; 

[Therefore, provided the property in question has been described with as much detail as possible, it is not necessary to state the name of the owner of the property or its value, unless such details are required to prove a specific offence.] 

[…] 

(iv) coin and bank notes may be described as money; and any allegation as to money, so far as regards the description of the property, shall be sustained by proof of any amount of coin or of any bank or currency note (although the particular species of coin of which such amount was composed or the particular nature of the bank or currency note, shall not be provided); and in cases of stealing, embezzling and defrauding by false pretences, by proof that the accused person dishonestly appropriated or obtained any coin or any bank or currency note, or any portion of the value thereof, although such coin or bank or currency note may have been delivered to him in order that some part of the value thereof should be returned to the party delivering the same or to any other person and such part shall have been returned accordingly;' (emphasis added) [words in brackets added]

[22.5.7] Ownership

[A] Definitions 

Section 258(2)(c) of the Penal Code (Ch. 26) states: 

'The expression "owner" includes any part owner, or person having possession or control of, or a special property in, anything capable of being stolen.' (emphasis added) 

Section 4 of the Penal Code (Ch. 26) states: 

'"person" and "owner", and other like terms, when used with reference to property, include corporation of all kinds and any other association of persons capable of owning property, and also when so used include Her Majesty.' (emphasis added) 

The term 'Property' is defined in section 4 of the Penal Code (Ch. 26) as including: 

'any description of real and personal property, money, debts and legacies, and all deeds and instruments relating to or evidencing the title or right to any property, or giving a right to recover or receive any money or goods, and also includes not only such property as has been originally in the possession or under the control of any person, but also any property into or for which the same has been converted or exchanged, and anything acquired by such conversion or exchange, whether immediately or otherwise.'

[B] Specific Rules 

Section 120 of the Criminal Procedure Code (Ch. 7) states (in part): 

'The following provisions shall apply to all charges and information and, notwithstanding any rule of law or practice, a charge or information shall, subject to the provisions of this Code, not be open to objection in respect of its form or contents if it is framed in accordance with the provisions of this Code – 

[…] 

(c) (i) the description of property in a charge or information shall be in ordinary language, and such as to indicate with reasonable clearness the property referred to, and, if the property is so described, it shall not be necessary (except when required for the purpose of describing an offence depending on any special ownership of property or special value of property) to name the person to whom the property belongs or the value of the property; 

(ii) where the property is vested in more than one person, and the owners of the property are referred to in a charge or information, it shall be sufficient to describe the property as owned by one of those persons by name and others, and if the person owning the property are a body of persons with a collective name, such as a joint stock company or "Inhabitants", "Trustees", "Commissioners", or "Club" or other such name, it shall be sufficient to use the collective name without naming any individual; 

[Therefore, if the property in question is owned by more than one person it is sufficient to specify 'the name of one of the owners and others'. For example, '… the property of Edmon Peters and others'. 

If the property in question is owned by a 'body of persons' with a collective name it is sufficient to specify the name of that 'body of persons'.] 

(iii) property belonging to or provided for the use of any public establishment, service or department may be described as the property of Her Majesty the Queen; 

[Therefore, for example, the ownership of the property belonging to the RSIP may be vested in 'Her Majesty the Queen'.] 

(d) the description or designation in a charge or information of the accused person, or of any other person to whom reference is made therein, shall be such as is reasonably sufficient to identify him, without necessarily stating his correct name, or his abode, style, degree, or occupation; and if, owing to the name of the person not being known, or for any other reason, it is impracticable to give such a description or designation, such description or designation shall be given as is reasonably practicable in the circumstances, or such person may be described as "a person unknown".' (emphasis added) [words in brackets added]

[C] Special Property 

The term 'Special Property' is not defined in the Penal Code (Ch. 26) or the Interpretation and General Provisions Act (Ch. 85). 

A person who 'special property' in property is said to have a limited or qualified right in relation to the said property. For example, if (A) takes his/her motor vehicle to (B) a mechanic to have it repaired. But in order to avoid paying the bill (A) secretly removes it, that action would amount to 'Larceny' of the 'motor vehicle the special property of (B) [the mechanic]' because (A) had thereby deprived (B) of his/her 'special property' (this is called a 'lien') in the motor vehicle. 

See: Rose v Matt (1951) 35 CrAppR 1. 

Furthermore, people have 'special property' in cheques which are made out to them. Therefore, whilst some other person may have possession of a cheque the money which is obtained on presentation of a cheque to a bank belongs to the person who has 'special property' in the cheque, see Tom Amaiu v The State [1979] PNGLR 576 at page 580.

[D] Identification Of Property 

The prosecution need only prove the identity and ownership of the property, to the same, but to no greater degree than any other element which is 'beyond reasonable doubt'. 

In R v Schiffmann & Brown [1910] VLR 348 the Court held at page 354: 

'It is not necessary that there should be an absolute identification. 

If such a necessity existed it would make a successful prosecution almost impossible with regard to many commodities which are often the subject matter of theft and which exist in large volume, and as to which it is impossible to say that any one unit (any one bottle of beer or any one case with a certain label, for example), is the particular thing which the person alleged to have been robbed had in his possession, and could identify as that particular thing. He can only say that he missed a thing of that description under circumstances suggesting theft, and that this which is found is similar. 

Then each case must depend on its own circumstances and the mere possession of that which is similar to a thing which as been stolen would not of itself be sufficient to justify a conviction. On the other hand, if the similar things are found under circumstances which make a connection between them and the thing supposed to have been stolen in such a way as to make it reasonably probably that they are the same things, the conclusion that they are the same things is one at which the jury is at liberty to arrive, although there is mere similarity in the things themselves.' (emphasis added) 

The circumstances in which property is located may assist in proving the issue of ownership even for so – called 'common articles', see R v Bridger (1930) 22 CrAppR 21 at page 22.

[22.5.8] Intent To Permanently Deprive 

Section 258(1) of the Penal Code (Ch. 26) states: 

'A person steals who, without the consent of the owner, fraudulently and without 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: 

Provided that a person may be guilty of stealing any such thing notwithstanding that he has lawful possession thereof, of, being a bailee or part owner thereof, he fraudulently converts the same to his own use or the use of any person other than the owner.' (emphasis added) 

In Toritelia v R [1987] SILR 4 Connolly JA commented at page 22: 

'A person who intends permanently to deprive the owner of the thing taken must surely be taking it deliberately and with knowledge that it is the property of the owner.' 

In R v Wilson Ono (Unrep. Criminal Case No. 33 of 1995) Muria CJ stated at pages 2 – 3: 

'What the accused asserts in this case is that he took the cheque book without consent of the bank and without any claim of right but that he only took it for safe – keeping with the intention of returning it to the bank later. The suggestion is that there was no intention to deprive the bank of its property and that in those circumstances it is not a larceny. 

To ascertain whether the accused had no intention of depriving the owner of the property taken regard will be hard as to the manner in which the property is dealt with by the accused. This is a question of fact. The accused intending to return the property taken and having the ability to do so may be able to successfully [raise] this element in a larceny charge. On the other hand such person may have failed to fulfill the intention between the date of the commission of the offence and trial. Such a conduct on the part of the accused runs counter to the suggestion that he intends to return the property.' [words in brackets added]

See also: Augustine Taeramo & Thomas Ilala v R (Unrep. Criminal Case No. 38 of 1992; Muria ACJ).

[22.6] Fraudulently Converts 

Section 258(1) of the Penal Code (Ch. 26) states: 

'A person steals who, without the consent of the owner, fraudulently and without 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: 

Provided that a person may be guilty of stealing any such thing notwithstanding that he has lawful possession thereof, of, being a bailee or part owner thereof, he fraudulently converts the same to his own use or the use of any person other than the owner.' (emphasis added) 

The term 'Fraudulently Converts' is not defined in the Penal Code (Ch. 26) or the Interpretation and General Provisions Act (Ch. 85). 

In Rogers v Arnott (1960) 44 CrAppR 195 [[1960] 2 AllER 417; [1960] 3 WLR 73; [1960] 2 QB 244] Donovan J, with whom Parker LCJ & Davies J concurred, stated at pages 199 – 201: 

'The respondent contends that there was a fraudulent conversion here when the respondent, having dishonestly assumed to himself the rights of ownership in the property, endeavoured to exercise it by offering the property for sale. 

There appears to be no reported judicial decision directly on point. […] 

So far as the textbooks are concerned, paragraph 245 of the 16th edition of Kenny's Outlines of Criminal Law contains this passage: "Exactly what constitutes the 'conversion', which involves the bailee in the guilt of stealing, has not been authoritatively stated. The principle must have possession of the goods, otherwise he would not be bailee, and then, as it would seem, any conduct on his part which shows that he assumes either the full title of ownership in the goods, or asserts a right to pass the full title of ownership, will amount to such conversion as will render him guilty of stealing then within the statute." The 16th edition of Russell on Crime, by the same author, at p.1095, has this to say upon the subject: "It is unfortunate that the term 'conversion' does not appear to have been given a precise definition either judicially or in the textbooks. But for the purposes of larceny it is submitted that it is necessary that the offender should have possession of the goods, and that when possession has been obtained any setting up by the offender of a full title to the property in himself, adverse to that of the owner, if done without a bona fide claim of right, will render him guilty of larceny." 

It would be rash, I think to attempt a definition of the term "converts to his own use" which would cover every possible case. […] In short, I agree with the learned author of Kenny and Russel in his view upon this point.' (emphasis added) 

'[The] word "bailee" in the proviso refers only to that limited class of persons who have received into possession goods from some other person on express or implied terms with regard to that possession', see Thompson v Nixon (1965) 49 CrAppR 324 at page 327. 

A 'bailee' is a person to whom goods are entrusted by way of 'bailment'. A 'bailment' refers to the delivery of property from a bailor to the bailee for a specific purpose under an agreement. Such an agreement requires that after the purpose has been fulfilled the property is to be either: 

[i] redelivered back to the bailor; 

[ii] dealt with according to the instructions of the bailor; or 

[iii] kept by the bailee until the bailor reclaims the property. 

A 'bailment' may be of five kinds: 

[i] the delivery of property to a carrier to a person who is to carry out some services in respect of them for payment, including where the carriage or services are to be gratuitous; 

[ii] the lending of property for the use of convenience of the bailee; 

[iii] the placing of property with the bailee on hire; 

[iv] the bare deposit of property with another, for the exclusive use of the bailor; and 

[v] the pawning or pledging of property. 

'A bailee's authority is to store and keep the goods in question and only to part with them, in other words to end the bailment, on express instructions from the owner. In such a case his authority is a limited authority, and is in no way a general authority to deal with the owner's goods', see R v Sutton (1966) 50 CrAppR 114, per Lord Parker CJ at page 119. 

See also: R v Wainwright (1960) 44 CrAppR 190.

[22.7] Liability Of Husbands & Wives 

Section 260 of the Penal Code (Ch. 26) states: 

'(1) A wife has the same remedies and redress under this Code for the protection and security of her own separate property as if such property belonged to her as a feme sole: 

Provided that no proceedings under this Part of this Code [ie., Part XXVII – 'Larceny, Embezzlement & Conversion'] shall be taken by any wife against her husband while they are living together as to or concerning any property claimed by her, nor while they are living apart as to or concerning any act done by the husband while they were living together concerning property claimed by the wife, unless such property has been wrongfully taken by the husband when leaving or deserting or about to leave or desert his wife or for the purpose of giving it to a paramour. [ie., his/her lover] 

(2) A wife doing an act with respect to any property of her husband, if done by the husband in respect to property of the wife, would make the husband liable to criminal proceedings by the wife under this Part of this Code, shall be in like manner liable to criminal proceedings by her husband.' (emphasis added) [words in brackets added] 

The principles of that section are as follows: 

·                     A husband and wife, who are living together, are not criminally responsible for any offence outlined in Part XXVII of the Penal Code (Ch. 26) in respect of anything that they do to their property; 

·                     A husband or wife is criminally responsible for an offence outlined in Part XXVII of the Penal Code (Ch. 26) if either of them is leaving, deserting or about to leave or desert or for the purpose of giving it to a paramour, ie., lover; and 

·                     Furthermore, for example, although a husband and wife who burn their own property commit no offence, if they make a false claim as to who burnt the property to an insurance company they would be criminally responsible for the offence of 'False Pretences' or 'Attempted False Pretences'. 

The law relating to the offence of 'False Pretences' is examined commencing on page 534. 

'A husband or wife do not live together only when they are living in the same house or occupying the same rooms. They may sometimes be said not to live apart when they are separated by the wide seas. The law regards not merely the physical separation of the one from the other, but the existence or determination of the consortium', see R v Creamer (1919) 14 CrAppR 19 at page 21. 

'A married woman [or man] living with her husband can steal from her husband only if she steals from him when leaving or deserting, when she is about to leave or desert him; therefore, unless it was proved that she took the property when she was leaving or about to leave her husband, she could not have stolen the property, although she might have taken it', see Walters v Lunt & another (1951) 35 CrAppR 94 [[1951] 2 AllER 645] at page 98. [words in brackets added] 

See also: R v King (1914) 10 CrAppR 44 at page 48 as regards the term 'about to leave or desert'.

[22.8] Automatic Teller Machines 

In R v Mujunen [1994] 2 QdR 647; (1993) 67 ACrimR 350 the Court of Appeal examined a case which involved a defendant who firstly deposited a cheque which he knew to be forged to the credit of his bank account which had a credit balance of less than $300. That account was subject to conditions that: 

·                     it not be overdrawn unless prior arrangements had been made with the bank; and 

·                     proceeds of cheques deposited would not be available until cleared. 

Secondly, before the cheque was dishonoured and without making any further deposits he withdrew $500 from his account on two occasions by activating an automatic teller machine and a further $300 by withdrawing money over the counter. The defendant was convicted of three charges of stealing from the bank in respect of the money specified. 

As regards the withdrawal of money from the automatic teller machine, Fitzgerald P stated at page 652: 

'The bank did not consent to the appellant [ie., the defendant] taking the money from the automatic teller machine or intend to pass the property in that money to him. I do not think that such an intention should be attributed to the bank merely because its system enabled the appellant to withdraw money before his cheque was cleared, contrary to his contract with the bank.' (emphasis added) [words in brackets added] 

McPherson JA stated at page 656: 

'[T]he proper conclusion is that the property in the money withdrawn by the appellant from or by means of the automatic teller was in the circumstances not intended by the bank to pass to the appellant. Since the money remained throughout the property of the bank, the appellant was guilty of stealing when he took or converted it with the requisite intent. It thus becomes unnecessary to consider whether, even before the money reached him, the appellant had already dealt with it in a manner that was inconsistent with the rights of the bank as owner by activating the teller machine with a view to obtaining fraudulently money to which he knew he had no right.' (emphasis added)

[22.9] Related Offences

[22.9.1] Larceny Offences 

The following are related 'Larceny' offences as provided for in the Penal Code (Ch. 26): 

[i] 'Larceny by Co – partners, etc', section 259; 

[ii] 'Larceny of Will', section 262; 

[iii] 'Larceny of Documents of Title & other Legal Documents', section 263; 

[iv] 'Larceny of Electricity', section 264; 

[v] 'Larceny of Minerals', section 265; 

[vi] 'Larceny of Postal Packets', section 266; 

[vii] 'Larceny by Officer of Post Office', section 267; 

[viii] 'Larceny in Dwelling – House', section 269; 

[ix] 'Larceny from the Person', section 270; 

[x] 'Larceny from Ship, Dock, etc', section 271; 

[xi] 'Larceny by Tenant or Lodger', section 272; 

[xii] 'Larceny of Cattle', section 274; 

[xiii] 'Larceny of Dog', section 275;

[xiv] 'Larceny of Creatures not the subject of Larceny at Common Law', section 276; 

[xv] 'Larceny of Trees', section 279; 

[xvi] 'Larceny of Fences', section 280; 

[xvii] 'Larceny of Fruit & Vegetables', section 281; 

[xviii] 'Killing Animals with Intent to Steal', section 289. 

[xix] 'Larceny of Or Dredging of Oysters', section 290; 

[xx] 'Larceny by Clerks & Servants', section 273; and 

[xxi] 'Advertisement for Stolen Property', section 119.

[22.9.2] Embezzlement Offences 

The following are related 'Embezzlement' offences as provided for in the Penal Code (Ch. 26): 

[i] 'Embezzlement by Co – partners, etc', section 259; 

[ii] 'Embezzlement by Officer of Post Office', section 267; and 

[iii] 'Embezzlement by Clerks & Servants', section 273.

In Toritelia v R [1987] SILR 4 Kapi JA stated at page 27: 

'[A] person may be adjudged guilty of "fraudulent embezzlement" if he uses, diverts, applies or disposes of chattel, money or valuable security in breach of his legal obligation in looking after his employer's property. The fact that he intended to pay back or return the property is irrelevant. This line of authority is supported by R v Williams [1953] 37 CrAppR 71 and R v Cockburn [1968] 52 CrAppR 134. The High Court adopted this line of argument [and the Court of Appeal adopted that line of argument].' 

In that case White P stated at page 20: 

'In the present case the appellant, charged with embezzlement admitted that he knew he had no right to take and use the funds he held as supervisor of the fish market at Yandina. That his intention was to pay back the amount he had taken and that he had some prospects of being able to do so was accepted. But those prospects depended on an advance payment which he would have received if an overseas course had been approved. These prospects were not fulfilled and he was never in a position to repay the amount appropriated. Clearly, the appellant had acted deliberately in breach of his obligations in a manner prejudicing another's right knowing that he had no right to do so. That being the appellant's state of mind at the time of the appropriation with no more than a hope or expectation of being able to repay the amount he had taken there can be no doubt he was dishonestly prejudicing another's right knowing he had no right to do so. In the circumstances he was guilty of embezzlement and should have been convicted.' 

See also: R v Christopher Saungao (Unrep. Criminal Case No. 30 of 1995; Lungole – Awich J). 

Section 174 of the Criminal Procedure Code (Ch. 7) states: 

'When a person is charged with any offence against section 273 of the Penal Code (relating to embezzlement), and it is proved that he stole the property in question; he may be convicted of the offence of stealing although he was not charged with it.' 

Refer also to section 120(c)(iv) of the Criminal Procedure Code (Ch. 7). 

Where it is possible to specify particular offences it is improper to rely on a 'general deficiency', see R v Tomlin [1954] 2 WLR 1140; [1954] 2 AllER 272; [1954] 2 QB 274; (1954) 38 CrAppR 82.

 [22.9.3] Larceny & Embezzlement By Clerks & Servants 

As regards the offence of 'Larceny & Embezzlement by Clerks & Servants', section 120 of the Criminal Procedure Code (Ch. 7) states (in part): 

'The following provisions shall apply to all charges and information and, notwithstanding any rule of law or practice, a charge or information shall, subject to the provisions of this Code, not be open to objection in respect of its form or contents if it is framed in accordance with the provisions of this Code – 

[…] 

(j) when a person is charged with any offence under sections 259 ['Stealing & Embezzlement by Co – Partners, Etc'], 273 ['Larceny & Embezzlement by Clerks Or Servants'] or 278 ['Conversion'] of the Penal Code it shall be sufficient to specify the gross amount of property in respect of which the offence is alleged to have been committed and the dates between which the offence is alleged to have been committed without specifying particular times or exact dates.' (emphasis added) [words in brackets added]

In R v Walsh [1971 – 72] PNGLR 293 the Supreme Court stated at page 298: 

'To us it seems that the term "general deficiency" is an expression in money terms of the difference between the amount which at the end of the period selected for accounting a person or corporation should possess in cash or deposits or investments representing cash and the amount he or it actually possesses. Such a difference is generally to be discovered by an examination of the books of account or entries kept or made in relation to receipts and disbursements. 

In this case we think that there should have been evidence of an examination of the books of account or entries kept or made under the appellant's charge or supervision, or some other evidence that there was a deficiency over some relevant period between the total sums of money received by her and the amount actually accounted for.' 

[22.9.4] Conversion 

The offence of 'Conversion' is provided for by section 278 of the Penal Code (Ch. 26). 

In R v Adachi Reqeo (Unrep. Criminal Case No. 96 of 1998) Lungole – Awich J stated at page 4: 

'The essence of the offence of conversion, which was adopted in s.271 of our Penal Code from the English Larceny Act of 1916, is that the property had been received or was in the possession of the accused lawfully and that he fraudulently converted it to his own use or to the use of some other person. The most significant element in conversion, like in larceny, embezzlement and other related offences in the English Larceny Act 1916 and our Penal Code is the fraudulent intent. The fraudulent intent is disclosed when one deals with the property of another, without that others consent and well knowing that it will prejudice the interest of that other person. The point is explained in great detail in the case of R –v- Williams [… (1953) 37 CrAppR 71]. An important case from our Court of Appeal, on the point is Toritelia v The Queen (1987) SILR 4.' (emphasis added) 

To deposit an employer's cheque into a bank account which it is not authorised does not amount to the offence of 'Larceny', but 'Conversion'. 

In R v Davenport (1954) 38 CrAppR 37 Lord Goddard CJ, delivering the judgment of the Court, stated at pages 41 – 42: 

'There was no larceny here because in larceny there must be an asportation, a taking and a carrying away. The fallacy that led to the charge of stealing money was this: It was thought that because the master's account got debited that was enough to constitute a theft. But, although one talks about a person having money in a bank, it is just as well that it should be understood that the only person who has money in a bank is a banker. If I pay money into my bank either by paying cash or a cheque, that money at once becomes the money of the banker. The relationship between banker and customer is that of debtor or creditor. He does not hold my money as an agent or trustee […]. Directly the money is paid into the bank, it becomes the banker's money, and the contract between the banker and the customer a against his promise to honour the customer's cheques on demand. When the bank is paying out, whether in cash over the counter or by crediting the bank account of somebody else, he is paying out his own money, not the customer's money, but he is debiting the customer in account. The customer has a chose in action, that is to say, a right to expect that the banker will honour his cheque, but the banker does it out of his own money. Therefore, the money paid on those cheques was the banker's money but it led to the customer's account being debited. If the appellant had been charged with the fraudulent conversion of the cheques, there could have been no answer at all, but he was charged with larceny, and it is quite obvious that he could not be convicted of larceny because he did not steal the company's money. He caused their account to be debited, but that is not the stealing of the money.'

However, the defendant could have been convicted of stealing the cheques. 

Refer also to section 120(j) of the Criminal Procedure Code (Ch. 7). 

See also: R v Sotere Ria (Unrep. Criminal Case No. 9 of 1993; Palmer J); R v Bottomley (1922) 16 CrAppR 184 at page 189; R v Smith (1924) 18 CrAppR 76; R v Sheaf (1925) 19 CrAppR 46; R v Morter (1927) 20 CrAppR 53; R v Lynskey (1952) 36 CrAppR 30; R v Pilkington (1958) 42 CrAppR 233 & R v Yale (1963) 47 CrAppR 229.

[22.10] Alternative Charges

[22.10.1] Statutory Provision

 Section 171(a) of the Criminal Procedure Code (Ch. 7) states: 

'When a person is charged with stealing anything and – 

(a)                it is proved that he received the thing knowing the same to have been stolen, he may be convicted of the offence of receiving although he was not charged with it.' 

Section 59(3) of the Traffic Act (Ch. 131) states: 

'If on the trial of a charge of stealing a vehicle the court is of the opinion that the defendant was not guilty of stealing the vehicle but was guilty of an offence under this section, the court may find him guilty of an offence under this section and thereupon he shall be liable to be punished accordingly.' 

[22.10.2] Practice Note 

The prosecution is required to advise the Court whenever it is relying on charges in the alternative. 

In David Kio v R (Unrep. Criminal Appeal Case No. 11 of 1977) Davis CJ issued the following 'Practice Note': 

'In view of this provision [, referring to section 171(a) of the Criminal Procedure Code (Ch. 7),] it is unnecessary to include in a charge of stealing an alternative count of receiving […]. 

[…] 

In future cases of stealing, where there is a possibility of the court finding the accused not guilty of stealing but guilty of receiving, I recommend that the accused be charged with stealing alone. Where this is done the prosecutor should always draw to the court's attention the provisions of section 171(a) of the Criminal Procedure Code.' [words in brackets added]

[22.10.3] Doctrine Of Recent Possession 

The 'Doctrine Of Recent Possession' may be applied in appropriate cases, see David Kio v R (Unrep. Criminal Appeal Case No. 11 of 1977; Davis CJ; at page 3). 

In R v Langmead (1864) Le & Ca 427; 169 ER 1459 Blackburn J stated at pages 441 and 1464 respectively: 

'I do not agree … that recent possession is not as vehement evidence of receiving as of stealing. When it has been shown that the property has been stolen, and has been found recently after its loss in the possession of the prisoner, he is called upon to account for having it, and, on his failing to do so, the jury may very well infer that his possession was dishonest, and that he was either the thief or the receiver according to the circumstances.' 

At pages 439 – 440 and 1464 respectively Pollock CB stated: 

'If, as I have said, there is no other evidence, the jury will probably consider with the reason that the prisoner stole the property; but, if there is other evidence which is consistent either with is having stolen the property, or with his having received it from someone else, it will be for the jury to say which appears to them to be the more probable solution.' 

In R v Brain otherwise Jackson (1918) 13 CrAppR 197 Avory J, delivering the judgment of the Court, stated at pages 198 – 199: 

'It is quite true that if a man is found in possession of recently stolen property it may give rise to a presumption either that he is the person who actually stole it or that he received it knowing it to have been stolen. What is "recent" stealing depends on the character of the goods. Some naturally change hands quicker than others. But after the presumption has been raised it is still the duty of the judge to tell the jury that it is only a presumption which calls for some explanation by the prisoner. If he gives no explanation or one which the jury does not believe, the jury may presume he is the person who stole the property or received it knowing it to have been stolen.' (emphasis added) 

In Trainer v R (1906) 4 CLR 126 Griffith CJ explained the 'doctrine of recent possession' at page 132: 

'It is a well known rule that recent possession of stolen property is evidence either that the person in possession of it stole the property or received it knowing it to have been stolen according to the circumstances of the case. 

Prima facie the presumption is that he stole it himself, but if the circumstances are such as to show it to be impossible that he stole it, it may be inferred that he received it knowing that someone else had stolen it.' (emphasis added) 

See also: Attorney – General of Hong Kong v Yip Kai – Foon [1988] 1 AllER 153; [1988] 2 WLR 326; (1988) 86 CrAppR 368 & R v Marcus (1923) 17 CrAppR 191.

[22.11] Compared With False Pretences 

In R v Caslin (1960) 44 CrAppR 47 [[1961] 1 WLR 59; [1961] 1 AllER 246] Lord Parker CJ, delivering the judgment of the Court, stated at page 53: 

'The first question which arises is whether she was properly charged with larceny by a trick or whether this was a case of obtaining money by false pretences. The distinction between the two is a very fine one and, […] the distinction is often largely academic. The authorities on subject are numerous, and the result in each case must depend upon the exact facts and the true inferences to be drawn therefrom. The guiding test in each case is whether the person whose money is obtained meant to part with the property in the money, in which case it would, if the representation was false and as to an existing fact be false pretences, or whether he meant only to part with possession, in which case, whether the false representation was to an existing fact or as to the future, it would be a case of larceny by trick.' (emphasis added) 

Simply the distinction between the offences of 'Larceny' and 'False Pretences' is that in respect of the offence of 'Larceny' the complainant loses possession, but not ownership; whereas in respect of the offence of 'False Pretences' the complainant loses both possession and ownership. As a consequence of a 'fraud' the owner of the property gives the defendant ownership of the property in question by consent. 

The offence of 'False Pretences' is examined commencing on page 534. 

See also: Tom Amaiu v The State [1979] PNGLR 576 at page 580. 

[22.12] Jurisdiction

The law relating to the jurisdiction of the courts in respect of the offence of 'Larceny' is examined commencing on page 14. 

The law relating to 'Sentencing' in respect of the offence of 'Larceny' and related offences is examined commencing on page 918. 

In respect of stolen property a Court should direct that the property be restored to the person from whom it was taken, see section 104(3) of the Criminal Procedure Code (Ch. 7).