Stealing By Finding (Qld)

The age-old adage “finders keepers” is not completely in line with whta is legally expected of those who locate property not belonging to them. It’s widely accepted that the good Samaritan thing to do when a person finds something that someone else is likely to have lost is to take reasonable steps to locate the rightful owner. However, this is more than just an altruistic act. A person may in fact find themselves charged with the offence of stealing if steps are not taken before deciding to assume ownership of an item. This article deals with the offence of stealing by finding in Queensland.

Stealing under the Criminal Code

Section 391(1) of the Criminal Code 1899 defines stealing as follows.

“A person who fraudulently takes anything capable of being stolen, or fraudulently converts to the person’s own use or to the use of any other person anything capable of being stolen, is said to steal that thing”

Subsection 2 of the provision states that a person is deemed to taken or converted a thing fraudulently if it is done with any of the following intents –

“(a) an intent to permanently deprive the owner of the thing of it;

(b) an intent to permanently deprive any person who has any special property in the thing of such property;

(c) an intent to use the thing as a pledge or security;

(d) an intent to part with it on a condition as to its return which the person taking or converting it may be unable to perform;

(e) an intent to deal with it in such a manner that it can not be returned in the condition which it was at the time of the taking or conversion;

(f) in the case of money – an intent to us it at the will of the person who takes or converts it, although the person may intent to afterwards repay the amount to the owner”

Under these provisions, in order to secure a conviction for a stealing offence, police must prove –

1. That the person took or converted something;
2. That the thing is capable of being stolen; and
3. That the person took it fraudulently

The answer to the question at hand lies in the words “took or converted”. The way in which the legislation defines this offence makes it so it is not a requirement for a person to take a thing. Simply converting an item will satisfy that element. Conversion refers to dealing with property as if it was your own – for example, keeping or destroying an item that was only loaned to you.

Exception to the offence of stealing by finding

Further, section 391(5) of the Act outlines a specific exception to the offence of stealing by finding, by stipulating that a person is not guilty of stealing if the person who has come into possession of an item does not know who the rightful owner is and believes on reasonable grounds that the owner cannot be discovered. Meeting the second limb of this test is demonstrated by the attempts (or lack of) to locate the owner.

Accordingly, the question of whether finding can be considered stealing is one to be answered on a case-by-case basis, however the primary consideration for the courts is whether the person who found the thing held a genuine belief that the owner could not be discovered, and how such a belief was reached.

Can the lawful owner be found?

Two examples to consider are the following.

1. A person is walking in a public park. There are no other people around. The person finds a small sum of cash scattered on the ground. The person decides to pick up the cash and keep it.
2. A person is walking in a shopping centre. The person locates a mobile phone under a chair in the food court. The person decides to take the phone to a pawn shop and sell it.

Whilst there may still be an expectation that they hand over the money to police, the person in the first example may have a far more reasonable belief that the owner is unable to be located than the person in the second example. This is due to the lack of owner-identifying markings on cash. Mobile phones, on the other hand, generally contain information which can identify an owner.

The question cannot be easily answered and is usually a matter for consideration and deliberation by lawyers, prosecutors, and the courts. As such, it is normally the safest practice to make police aware of any property you have located in order to protect yourself from being charged with a criminal offence.

The following warning is from the Queensland Government website.

“If you find property that someone has obviously lost, take it to your local police station.

If you find goods or money, you can’t keep them. In fact, police can charge you for keeping goods or money you’ve found that you don’t hand in.

If you tell the police that you’ve found something of value, they may later return the goods to you if they can’t find the owner.”

If you require legal advice or representation in any legal matter please contact Armstrong Legal.