“Theft by finding”

Offence under: Section 74, Crimes Act 1958

Overview:  A person can be charged with theft if he or she finds or accidentally comes across something belonging to another and then keeps it or deals with it as if he or she is the owner.

Example

For example, Ms XY sees a wallet lying outside her house and keeps the contents of it.

In addition to using the $50 found inside, she also attempts to sell a diamond ring she finds inside the wallet’s coin compartment.

She gets tracked down by the police after she puts the ring up for sale on eBay – turns out it was made to order by the owner and easily identifiable.

Although Ms XY has come to the property innocently, she appropriated it by keeping it and dealing with it as an owner.

The ‘finders keepers’ rule does not apply.

How the law works

There are 3 elements to a charge of theft that must be proved:-

  1. Appropriation
  2. An intention to permanently deprive
  3. Acting with dishonesty

Appropriation: The accused must have appropriated property that belonged to another person.

In this regard, the courts consider lost property as still belonging to the owner. Abandoned property, however, no longer belongs to the owner.

Intention to permanently deprive: The accused must have intended to permanently deprive the owner of the property when he/she appropriated it.

Intention: The intention to permanently deprive must exist at the time of he/she took the item.

Permanent deprivation: It will not suffice if the accused had only intended a temporary deprivation.

However, say on 18 August 2011, Mr YZ finds 2 tickets to see ‘Phantom of the Opera’ on 25 August 2011 but only intends to return the tickets to the rightful owner on 27 August 2011, this amounts to an intention to permanently deprive.

Acting with Dishonesty: In respect to the charge of theft in Victoria, dishonesty means acting without any claim of legal right. 

Dishonesty can often be a question of degree for a Magistrate or a Jury to make a decision about. It must be remembered that the onus is always on the Prosecution to prove dishonesty beyond a reasonable doubt. If the accused puts a case which could be true, then the Prosecution might have problems proving dishonesty.

Possible defence

The Act provides that a person is deemed to not have acted dishonestly if it can be shown that he or she took reasonable steps to identify or locate the owner before appropriating the property that was found.

For example, if the wallet that Ms XY found contained a driver’s licence or identity card of some description, it could be reasonably expected that she would be able to identify and locate the owner.

If you are facing any problems regarding this issue, or are just generally apprehensive about going to court, you should feel free to ring Brendan Wilkinson on 0438-670-198  or email brendanwilkinson@bigpond.com