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Stealing by Finding (Vic)

Written by Amran Azad

Amran holds a Bachelor of Business and a Bachelor of Laws from La Trobe University as well as a Masters in Global Business Law. Amran completed her Graduate Diploma of Legal Practice at Leo Cussens Centre for Law and was admitted to practice law in the Supreme Court of Victoria and the High Court of Australia in 2016. Amran has worked on a wide range of legal matters including civil, immigration, business, family, and criminal law. She passionately advocates on behalf of her clients to achieve the best possible outcome every time.

When most people think of stealing, they think of a deliberate act of taking property that belongs to someone else. However, in some circumstances, keeping something that you have found can amount to the offence of stealing. This is known as stealing by finding and it occurs when a person finds an item and decides to keep it without taking reasonable steps to try to find the lawful owner.

What is theft?

For a person to be found guilty of theft in Victoria, the prosecution must prove three elements beyond a reasonable doubt. These are set out in Section 72 of the Crimes Act 1958 and are:

  1. The accused appropriated property belonging to another;
  2. The accused did so with an intention of permanently depriving the other of the property; and
  3. The accused acted dishonestly.

Appropriation of property

For the first element, the court must be satisfied that the accused appropriated property belonging to another person. An ‘appropriation’ can involve taking, using, damaging, extinguishing, lending or offering to sell another person’s property (or any of their property rights).

The Crimes Act defines property to include ‘money and all other property real or personal including things in action and other intangible property.’ Whether the item appropriated by the accused was ‘property’ can involve questions of both law and fact. It is for the judge to determine as a question of law whether a particular circumstance creates a proprietary right, and a jury will usually determine whether the factual circumstances existed.

If the property no longer ‘belongs’ to any person, then a person cannot be found to have committed theft. However, lost property still ‘belongs’ to the owner and can be appropriated. This is what occurs in a case of stealing by finding.

Permanent deprivation

The second element of the offence of theft requires the accused to have intended to permanently deprive the owner of the property. If the accused only intended to temporarily deprive the owner of the property or was undecided as to the disposal of the property, this element is not met.

However, even when an accused comes across property innocently, if they later assume the right to it by keeping it or dealing with it as an owner, they will be taken to have appropriated it and may be found guilty of stealing by finding. The only exception is where an individual purchases property in good faith (ie not knowing the person selling the property does not have the right to do so). In such a situation, the purchaser has not committed an offence.

Dishonesty

Dishonesty is a subjective concept concerning the accused’s belief. It has a unique meaning for the purposes of theft and relates to acting without any claim of legal right. This was set out in the 1981 Victorian Supreme Court decision of R v Salvo.

The Crimes Act redefines dishonesty in the context of theft to clarify that a person’s appropriation is not to be regarded as dishonest if the person believed that:

  1. They had a legal right to deprive the owner of the property; or
  2. The owner would have consented to the appropriation if they had known of it and the circumstances surrounding it; or
  3. The owner of the property could not be discovered by taking reasonable steps.

When lost property is found and kept, the finder has not acted dishonestly if, in the circumstances, they could not have found the lawful owner by taking reasonable steps. Therefore, as long as the finder of property genuinely believed that the owner could not be identified or located by taking reasonable steps, they will not be guilty of theft (R v MacDonald (1983) 8 A Crim R 248). This requirement states that the accused not only believed that they could not identify or locate the owner of the property in addition to a belief that they could not do so even if they took reasonable steps.

Avoid a charge of stealing by finding

Victoria Police has cautioned the general public that a person can be charged with theft if they find something belonging to another person and keep it or deal with it as if they are its owner. Police have recommended that any item found should always be taken to a police station and if it is not claimed within a three-month period, then the finder may take ownership of it.

However, reasonable measures may vary depending on the property and circumstances in which a person finds the item. As a general principle, the finder should be able to satisfy law enforcement that they had attempted to contact or locate the owner in a genuine manner. For example, if you find an item of value in a particular business premise, advising Management of the find would be taking reasonable steps.

If you require legal advice or representation in relation to stealing by finding or in any other legal matter, please contact Go To Court Lawyers.

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