Steel, Alex --- "Taking Possession: The Defining Element of Theft?" [2009] UNSWLRS 19

Last Updated: 15 June 2009

Taking Possession: The Defining Element of Theft?

Alex Steel, University of New South Wales

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Citation

This paper was originally published in the Melbourne University Law Review 2008) 32, p. 1030-1064.

Abstract

This article argues that the Theft Act 1968 (UK) c 60 and subsequent legislative developments in Australia have overlooked the principle of preventing public violence that was historically a justification for the common law offence of larceny. The article outlines the English Criminal Law Revision Committee’s decision to amalgamate previously separate offences into one overarching theft offence in the Theft Act 1968 (UK) c 60. It then describes the historical development of the common law offence of larceny, and its basis in the protection of the possessory rights of victims. The author argues that the restriction of the term ‘property belonging to another’ to possession in the context of larceny provides a strong and principled boundary to the offence. The article then outlines four particular issues arising from the statutory expansion of the definition of theft, and concludes that retaining the distinction between offences such as theft and fraudulent conversion would be preferable to a single statutory offence.