Victorian Current Acts

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CRIMES ACT 1958 - SECT 73

Further explanation of theft

    (1)     This section has effect as regards the interpretation and operation of section 72 and, except as otherwise provided in this Division, shall apply only for the purposes of that section and not otherwise.

    (2)     A person's appropriation of property belonging to another is not to be regarded as dishonest—

        (a)     if he appropriates the property in the belief that he has in law the right to deprive the other of it, on behalf of himself or of a third person; or

        (b)     if he appropriates the property in the belief that he would have the other's consent if the other knew of the appropriation and the circumstances of it; or

        (c)     (except where the property came to him as trustee or personal representative) if he appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps.

    (3)     A person's appropriation of property belonging to another may be dishonest notwithstanding that he is willing to pay for the property.

    (4)     Any assumption by a person of the rights of an owner amounts to an appropriation, and this includes, where he has come by the property (innocently or not) without stealing it, any later assumption of a right to it by keeping or dealing with it as owner.

    (5)     Where property or a right or interest in property is or purports to be transferred for value to a person acting in good faith, no later assumption by him of rights which he believed himself to be acquiring shall, by reason of any defect in the transferor's title, amount to theft of the property.

    (6)     A person cannot steal land, or things forming part of land and severed from it by him or by his directions, except in the following cases, that is to say—

        (a)     when he is a trustee or personal representative, or is authorized by power of attorney, or as liquidator of a company, or otherwise, to sell or dispose of land belonging to another, and he appropriates the land or anything forming part of it by dealing with it in breach of the confidence reposed in him; or

        (b)     when he is not in possession of the land and appropriates any thing forming part of the land by severing it or causing it to be severed, or after it has been severed; or

        (c)     when, being in possession of the land under a tenancy, he appropriates the whole or part of any fixture or structure let to be used with the land.

For purposes of this subsection land does not include incorporeal hereditaments; "tenancy" means a tenancy for years or any less period and includes an agreement for such a tenancy, but a person who after the end of a tenancy remains in possession as statutory tenant or otherwise is to be treated as having possession under the tenancy, and "let" shall be construed accordingly.

    (7)     Wild creatures, tamed or untamed, shall be regarded as property; but a person cannot steal a wild creature not tamed nor ordinarily kept in captivity, or the carcase of any such creature, unless either it has been reduced into possession by or on behalf of another person and possession of it has not since been lost or abandoned, or another person is in course of reducing it into possession.

    (8)     Where property is subject to a trust, the persons to whom it belongs shall be regarded as including any person having a right to enforce the trust, and an intention to defeat the trust shall be regarded accordingly as an intention to deprive of the property any person having that right.

    (9)     Where a person receives property from or on account of another, and is under an obligation to the other to retain and deal with that property or its proceeds in a particular way, the property or proceeds shall be regarded (as against him) as belonging to the other.

    (10)     Where a person gets property by another's mistake, and is under an obligation to make restoration (in whole or in part) of the property or its proceeds or of the value thereof, then to the extent of that obligation the property or proceeds shall be regarded (as against him) as belonging to the person entitled to restoration, and an intention not to make restoration shall be regarded accordingly as an intention to deprive that person of the property or proceeds.

    (11)     Property of a corporation sole shall be regarded as belonging to the corporation notwithstanding a vacancy in the corporation.

    (12)     A person appropriating property belonging to another without meaning the other permanently to lose the thing itself is nevertheless to be regarded as having the intention of permanently depriving the other of it if his intention is to treat the thing as his own to dispose of regardless of the other's rights; and a borrowing or lending of it may amount to so treating it if, but only if, the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal.

    (13)     Without prejudice to the generality of subsection (12) where a person, having possession or control (lawfully or not) of property belonging to another, parts with the property under a condition as to its return which he may not be able to perform, this (if done for purposes of his own and without the other's authority) amounts to treating the property as his own to dispose of regardless of the other's rights.

    (14)     Notwithstanding anything contained in subsection (12) in any proceedings—

S. 73(14)(a) amended by No. 127/1986 s. 102(Sch. 4 item 5.2).

        (a)     for stealing a motor vehicle or an aircraft proof that the person charged took or in any manner used the motor vehicle or aircraft without the consent of the owner or person in lawful possession thereof shall be conclusive evidence that the person charged intended to permanently deprive the owner of it; and

S. 73(14)(b) amended by No. 127/1986 s. 102(Sch. 4 item 5.2).

        (b)     for attempting to steal a motor vehicle or an aircraft proof that the person charged attempted to take or in any manner use the motor vehicle or aircraft without the consent of the owner or person in lawful possession thereof shall be conclusive evidence that the person charged intended to permanently deprive the owner of it.

S. 73(15) inserted by No. 20/2015 s. 22.

    (15)     In this section—

"motor vehicle" includes vessel, whether or not the vessel is powered by a motor;

"vessel" has the same meaning as in the Marine Safety Act 2010 .

Heading preceding s. 74
inserted by No. 8425 s. 2(1)(b).

Theft, robbery, burglary, &c.



S. 74 amended by No. 8280 s. 8, substituted by No. 8425 s. 2(1)(b), amended by Nos 9576 s. 11(1), 36/1988 s. 4(a).



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