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This article was written by Joseph Palamara - Associate - Werribee

Joseph holds a Bachelor of Laws from Victoria University and completed his Graduate Diploma of Legal Practice at the College of Law. Joseph also holds a Certificate in Legal Business from the College of Law. Joseph was admitted to practise law in the Supreme Court of Victoria in March 2017 and is also admitted in the High Court of Australia....

Stealing by Finding (Vic)


Theft is the most common property offence and is contained in section 72 of the Crimes Act 1958. While theft generally relates to deliberately taking an item that belongs to someone else without permission, it can also arise in situations where an item is found and retained, without taking steps to locate the legal owner. This is known as stealing by finding.

What is theft?

In order for the offence of theft to be proven beyond a reasonable doubt, the following thresholds (or elements) must be established by the prosecution:

  1. That the accused obtained property that belonged to another;
  2. That they did so with the intention to permanently deprive the other of the property; and
  3. That they acted dishonestly.

What is stealing by finding?

When a person comes across an item in the street and obtains this property for their own benefit (for example a mobile phone), there is a serious question as to whether the possession of this item may constitute the offence of theft – theft in these circumstances is known as stealing by finding. To determine this, we must look into the above elements a little further.

Appropriation

Under section 73(4),  ‘appropriation’ is committed if a person assumes any of the rights associated with an item (for example, taking an item into their possession).

Intention to permanently deprive

For a theft to be committed, there must be an intention to permanently deprive the owner of the property which has been appropriated. This intention must be permanent, and an intention to temporarily deprive the owner of the item is not enough to meet this threshold. For example, when someone locates an item in the street, with the intention to hand it into a lost and found, or to the police, there is no intention to permanently deprive the true owner of the item. However, in a situation where a person locates an item and take the item home, the argument that they do not have an intention to permanently deprive the owner of the property becomes less likely to succeed.

Dishonesty

Under the legislation, there is a very specific definition of what constitutes ‘dishonest conduct’ in the context of theft. Theft by finding an item will only be made out when the prosecutions can prove that the accused’s appropriation of the property belonging to another was dishonest.

Conduct is not regarded to be dishonest if:

  1. the accused 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 the circumstances; or
  3. the owner could not be discovered by taking all reasonable steps.

It is generally the last of these considerations that causes a hurdle for many people who appropriate an item that they have ‘found’. The finder of the item is required to take all reasonable steps in attempting to locate the true owner of the item, to avoid appropriating that item dishonestly. In situations where an item has details attached pertaining to the identity of the true owner (for example a wallet with identification cards in it, or a mobile phone with details contained on it), this may require more to be done before reasonable steps’ can be said to have been taken, as it is highly likely that the identity of the true owner could be discovered.

In situations whereby an individual locates an item, and they hold the legitimate belief that the true owner of the item cannot be located by taking reasonable steps, it is arguable that this conduct does not constitute the offence of theft. However particular attention needs to be given to the state of mind and belief that the person who appropriated the property has.

Stealing by finding: Lost Property vs Abandoned Property

It is important to consider whether an item is simply lost or has been abandoned by its owner. Under the Crimes Act 1958 an item/property, no longer ‘belongs’ to someone if that person has ‘intentionally’ relinquished all ownership rights of that property. This principle was further expounded in the decision of R v Small [1987] Crim LR 777.

The key point here is that the owner must have intentionally relinquished their rights, which ultimately will be determined on a case-by-case basis and is dependent on the circumstances of how and where the item was located. A mobile phone located on the footpath is less likely to meet this threshold than a mobile phone located in a rubbish bin. However, there is no clear definition of what constitutes the ‘intentional relinquishment’ of ownership. Therefore it is important to seek legal advice should this be an issue in dispute.

Other offences related to stealing by finding

There is also a multitude of other offences that are related to theft and where a person may be charged in a situation where they did not intentionally deprive someone of an item. A person may be charged in a situation where they came into possession of an item believing that they had ‘found’ the item legitimately.

Some of these offences include handling stolen goods, under section 88 of the Crimes Act 1958 and obtaining property by deception, under section 81.

Is the item stolen?

The offence of handling stolen goods requires that the prosecution establish that the person who appropriated the property either knew or believed that the items were stolen. It is not enough that the accused suspected that the goods were stolen, there must be actual knowledge of this.

It is important to note that when ‘finding’ or otherwise acquiring an item, if there is any suspicion or indication that the items may be stolen, then it is extremely important the above is considered, to avoid any possible criminal implications resulting from handling the stolen item.

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

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