Criminal Law

OFFENCES AGAINST PROPERTY:

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INTRODUCTION

Jamaica recognizes and provides for, inter alia, the following three main offences against
property:
1. Larceny
2. Robbery
3. Burglary

Reference will be made to the Larceny Act and the Common Law (Case Law) where we
will examine the elements of each of these offences and what must be proven to establish
culpability on the part of any Defendant.

LARCENY

Larceny was an offence under the common law and became an offence in jurisdictions
which incorporated the common law of England into their own law. Unlike Barbados
which has followed England and abolished Larceny, Jamaica continues to retain Larceny
as an offence against property on its law books.

Larceny is synonymous with stealing.

According to Section 3 of the Larceny Act:

(1) a person steals who, (i) without the consent of the owner, (ii) fraudulently and
without a claim of right made in good faith, (iii) takes and carries (iv) away
anything capable of being stolen (v) with intent, at the time of such taking,
(vi) permanently to deprive the owner thereof:

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 Provided that a person may be guilty of stealing any such thing
notwithstanding that he has lawful possession thereof, if, being a bailee or
part owner thereof, he fraudulently converts it to his own use or to the use of
any person other than the owner;

ACTUS REUS

Based on Section 3(1) therefore, in order for a person to be said to have the actus reus of
larceny, it must be proven that he/she:

(1) Fraudulently and without a claim of right in good faith;

(2) Took and carried away; and
(3) Anything capable of being stolen

FRAUDULENT TAKING ANYTHING CAPABLE OF

BEING STOLEN

For a person to be said to have fraudulently taken it must be shown that such a person
was not in rightful possession of the property or did not have a claim of right to the
property. In simplest of terms, there can be no good reason why the person is in
possession of the item purported to be stolen. So for example, if you took something
genuinely believing it to be yours, then no proceedings for larceny can ensue. Similarly,
if you purchased something from someone in good faith and you were later made aware
that it was stolen, you could not be found liable for larceny as at the time you purchased
the property you would have a “claim of right” in the words of the Act. If you took
something genuinely believing that you had the consent of the owner, you would not be
said to have fraudulently taken “without a claim of right in good faith.”

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TAKES AND CARRIES AWAY

Aside from the obvious form of “taking” whereby a person literally takes something from
someone, Section 3 (2) (i) and (ii) clearly outlines the category of instances in which a
person will be also said to have “taken” for the purposes of “fraudulently taking” even
though prima facie it would not appear to be “taking.”

(2) (i) “takes” includes obtaining the possession-

(a) by any trick;

(b) by intimidation;

(c) under a mistake on the part of the owner with knowledge on the
part of the taker that possession has been so obtained;

(d) by finding, where at the time of the finding the finder believes
that the owner may be discovered by taking reasonable steps (lost
and found);

TRICK – See R v. Bramley (1861) where the Defendant was found to be guilty of
Larceny in circumstances where he obtained coal for the price of slack, which was
cheaper than coal, by placing slack over the coal and indicated that what he had was a
weight of slack. He paid for slack and left with both coal and slack.

INTIMIDATION – See R v. Lovell [1881] 8 QBD 185 where the accused, who had
been given the job of grinding knives, agreed to work at certain sum. Upon completion of
the job the Defendant demanded of the victim a sum four times in excess of the sum
agreed between himself and the victim. For fear of her life the victim paid the amount

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demanded. It was determined that the monies were obtained from the victim by menaces
and were therefore guilty of Larceny by way of intimidation.

MISTAKE – The mistake referred to may be in respect of the identity of the receiver or
the subject matter delivered. See the case of R v. Middleton (1873) [1861-73] ALL ER
REP. EXT 1120 where the Defendant’s account balance was confirmed to him and he
thereafter attempted to withdraw a portion of same. The Clerk had erred in referring to
another balance and thereby overpaid the Defendant. The Defendant took the excesses
and left. The Defendant was said to have the animus furandi for Larceny as he knew, at
all material times, that he was being overpaid.

Cf Moynes v. Cooper [1956] ALL ER 450 where the wage Clerk had by mistake
included more money in the Defendant’s pay package than the Defendant was entitled to.
At the time the Defendant received the pay packet he had no knowledge of the mistake.
He later discovered that he had been overpaid by mistake and dishonestly took decided to
keep the money. The court held that since at the time he took the money the Defendant
did not know of the mistake on the clerk’s part the “taking“ would not have been done
with the animus furandi required for the offence. The Defendant in that case was
discharged.

FINDERS KEEPERS?

In R v. Thurborn (1849) 1 Den. 387 the Defendant found a banknote in the street. The
note had no identifying mark. The Defendant immediately resolved to keep it for himself.
Before disposing of same, the Defendant became aware of the identity of the true owner
but he disposed of same nonetheless. It was determined that the Defendant was not guilty
of larceny as at the time of finding the note he did not know who was the owner.

Cf The case of Chee Awai and Beharry v. Quityne (1968) 13 WIR 474 is (Trinidad and
Tobago) which gives further guidance and is very instructive on this point. In that case
the appellants took possession of a half pup about 3 months old which they rescued from

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an attack by two dogs and which they alleged had followed them and voluntarily jumped
into their car when the door was opened by Beharry. Neither of the appellants enquired
from any of the several persons in the area at the time as to whether they were the owners
of the pup nor did they take other steps to ascertain its ownership.

They were convicted of larceny of the pup.

On Appeal the court held that the evidence was such as to raise a reasonable
inference not only that the owner of the dog could have been found if the appellants
had taken reasonable steps but also that the appellants must have believed that the
owner could have been found if they had taken reasonable steps. Appeal dismissed.

Also see:

R v. White (1912) Crim. Appeal 266

R v. Lloyd [1985] 2 ALL ER 661

CARRIES AWAY

Note that Section 3 (2) (ii) expressly defines “carries away” as including “the removal
of anything from the place which it occupies, but, in the case of a thing attached, only
if it has been completely detached”.

Note as Larceny is a crime against possession. The taking element requires that the
offender takes complete physical control of the property, even if only for a moment.

(i) Therefore if a Defendant were to remove an overcoat from a department store

mannequin and begin to walk away with it, but the overcoat is secured to the

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 mannequin by a chain there will be no larceny because the Defendant never
had complete control over the coat as is required for the purposes of the act.

Note however that the control need only be momentary. In the case of R v.
Lapier [1784] 1 Leach 320 the Defendant snatched an earring from the victim
which immediately became entangled in the victim’s hair. The court held that
the Defendant's control over the property, although momentary, was sufficient
to constitute a taking for the purposes of Larceny.

(ii) As it relates to the “carrying away” element, the defendant must not only
gain dominion over the property he must move it from its original
position. Note however that the slightest movement - even a hair's
breadth - is sufficient once the entirety of the property is moved.

The case of R v. Taylor [1911] 1 KB 674 is a case on point; here the Defendant
placed his hand into the victim’s pocket and drew her purse to the edge of the
pocket. The purse was lodged into the victim’s belt enabling the victim to prevent
complete asportation. Notwithstanding, on a charge for Larceny the Defendant
was found guilty as the court determined that there was sufficient asportation to
amount to Larceny.

ANYTHING CAPABLE OF BEING STOLEN

Note: The object stolen must have value - Larceny protects the possession of goods –
objects that have economic value. A good has economic value if it has a price; that is,
the property can be sold in a market. There are objects that have no economic value and
thus are not subject to larceny.

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For example: goods which are "free", such as the air we breathe, objects that could not
sell at any price, or could not be given away. Examples abound - leaves that have fallen
from trees, garbage, the contents of a septic tank.

Section 3 (3) of the Larceny Act provides a likely definition as to what is the subject
matter of a Larceny. The section provides that “everything which has value and is the
property of any person, and, if adhering to the realty, then after severance therefrom,
shall be capable of being stolen”

By virtue of the definition of property in the Act, which speaks to property being “real”
or “personal” it would appear as though larceny cannot be committed with respect to
intellectual property. It also means that acts of common law larceny cannot be
committed against the following, inter alia:

 Intangible items:
o Love/affection
o Information
o Identity
o Contractual rights
 Items having no economic value

As it relates to the requirement “and is the property of any person” it is clear that larceny
cannot be committed with respect to property that seemingly has no owner. For example,
if a person walks down the road and sees twenty dollars on the ground and takes it, it
would be difficult to successfully bring a charge of larceny against that person as it would
be assumed that the property did not belong to another. This is of course only if the
owner was not capable of being found by taking reasonable steps as recognized in
Section 3 (2) of the Act.

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Note however as it relates to the value the property must have, it is clear that there
need not be any specific value assigned to the property; any value however slight
would suffice: Bourne v Edwards

In the case of Bourne v Edwards it was noted that ““at common law one of the
ingredients necessary to make a thing capable of being stolen was that it must have
value. An article without value was not capable of being stolen but it mattered not how
little the value once it was worth something in money to the owner”.

Note also the case of R v. Morris (1840) 9 C & P 349 where it was stated that “it may be
a very small value still it is worth something…”

MENS REA /INTENT TO PERMANENTLY DEPRIVE THE

OWNER THEREFOF

The mens rea of Larceny is often referred to as the “animus furandi” or the “intent to
steal”.

Section 3 of the Larceny requires that at the time of taking and carrying away the
Defendant must intend to permanently deprive the owner of his goods.

This means that at the time of taking and carrying away the Defendant must be proven to
have had no intention to pass the property back to its rightful owner. Where the
Defendant merely borrows an item belonging to another whilst intending the return same
there can be no Larceny.

Note therefore that only intention will suffice. Larceny cannot be committed
recklessly nor negligently.

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In the case of R v. Hall (1849) 1 Den. 381 the Defendant, an employee of the victim,
took item belonging to the victim and brought them to the victim for sale. The Defendant
claimed that he had obtained the said items from a third party. The court held that, by his
actions the Defendant had intended to permanently deprive the victim of items belonging
to him, as the only way the victim could get back his items was if he purchased them
from the Defendant.

Note also the local case of R v. Purvis and Hughes 13 WIR 507. Here the appellants
were charged and convicted for larceny of a motor car. The facts were that the appellants
drove away a car belonging to B which had been parked in her garage. The Court of
Appeal held that a prima facie case of larceny had been made out. The Appellant had
offered no explanation to counter the arguments and it was therefore a matter for the jury
to determine whether they were satisfied that at the time the car was taken away the
appellants intended to permanently deprive the owner thereof.

Per Waddington P (Ag.):

“In order to establish the offence of larceny it necessary for the crown to prove that the
accused at the time of the taking intended to permanently deprive the owner of the thing
stolen…. The intention of an accused however is not capable of positive proof. Only he
can tell positively what his intention was at the given time. All the crown can do is to
lead evidence of things done or said by the accused from which … a reasonable inference
may be drawn that he did the act charged with the necessary intent.
The legal burden is thus on the accused to show that at the time of the taking the accused
intended permanently to deprive the owner of the thing stolen. But once the crown
establishes a prima facie case as to this, then the evidentiary burden shifts to the accused
to explain, if he can, that in taking the thing he is accused of stealing he had in fact no
intention permanently to deprive the owner thereof. Of course, if at the end of the case on
a consideration of all the evidence the jury is left in doubt as to whether or not the intent
existed, the accused would be entitled to be acquitted.”

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Note that the legal burden is thus on the crown to show that at the time of the taking the
accused intended permanently to deprive the owner of the thing stolen. But once the
crown establishes a prima facie case as to this, then the evidentiary burden shifts to the
accused to explain, if he can, that in taking the thing he is accused of stealing he had in
fact no intention permanently to deprive the owner thereof.

Further note that while borrowing is not usually something which is done with an
intention to permanently deprive, where a person borrows with the intention to return the
thing borrowed in such a changed state that it can truly be said that all its goodness or
virtue is gone this may constitute the offence of larceny. In R v. Beecham (1851) 5 Cox
CC 18, where the Defendant stole railway tickets intending that they should be returned
to the railway in the usual way only after the journeys had been completed. He was
convicted of Larceny.

2. ROBBERY

Section 37 of the Larceny Act provides:

"(1) Every person who-

(a) being armed with any offensive weapon or instrument, or being together with one
other person or more, robs, or assaults with intent to rob, any person;

(b) robs any person and, at the time of or immediately before or immediately after
such robbery, uses any personal violence to any person, shall be guilty of felony, and
on conviction thereof liable to imprisonment with hard labour for any term not
exceeding twenty-one years.

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(2) Every person who robs any person shall be guilty of felony, and on conviction
thereof liable to imprisonment with hard labour for any term not exceeding fifteen
years.

ACTUS REUS
The actus reus of robbery may be committed where:

(i) a person robs or assaults a person when being armed with an offensive
weapon Note that the term “offensive weapon” is not defined by the act
and it must therefore be assumed that common sense approach would be
taken here. It is submitted therefore that “an offensive weapon” is any
object which may cause harm to a person.

Or

(ii) Being together with one other person or more robs or assaults another
person.

Or

(iii) Robs any person using personal violence either immediately before of
after the robbery

Note that robbery is deemed to be a graver crime than larceny. Robbery is basically
Larceny aggravated by the threat or use of force. The elements of Larceny must be
established if a conviction for robbery is to be obtained, meaning that a person must have
stolen something from someone in order to be liable for robbery.

Note that the application of force or the threat of force is the key element in the actus
reus of Robbery and is what takes the offence from simple larceny to larceny.

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APPLICATION/USE OF FORCE

R v. Desmond [1965] 1 ALL ER 976

The Defendant and another use forced in stealing money from an office at a bakery.

Force was applied in respect of the night watchman and the maintenance engineer.

Both men were found to guilty of robbery as they had placed the workers in fear of being
subjected to force

The question of whether or not force has been used is a question of fact to be determined
by a jury: R v Dawson [1976] Crim LR 692. In practice it appears that very little force is
actually required:

·In R v Dawson [1976] the defendant had nudged the victim causing him to lose his
balance so that his wallet could be more easily taken. His appeal against a conviction for
robbery was refused.

MENS REA WITH INTENT TO ROB

Section 37 (i) has a clear mens rea element whereby a person must have the intent to rob
before he/she could be found guilty of robbery under the provisions of that particular sub-
section.

Section 37 (ii) does not speak to a mens rea element and speaks to the fact that that the
offence of robbery is constituted once the person robs using force immediately before or
immediately after the robbery.

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BURGLARY

Section 39 of the Larceny Act provides that:

“Every person who in the night-

(I) breaks and enters the dwelling-house of another with intent to commit any
felony therein; or
(2) breaks out of the dwelling-house of another having,
(a) entered such dwelling-house with intent to commit any felony therein;
or
(b) committed any felony in such dwelling house,

shall be guilty of felony called burglary, and on conviction thereof having-

(i) where the felony committed in the dwelling-house is rape, shall be liable to
imprisonment for life; and
(ii) in any other case shall be liable to imprisonment for a term not exceeding
twenty-one years.”

Note that under the Larceny Act Burglary is limited to dwelling houses only.

Under the larceny act, a burglary cannot be committed with respect to a

commercial property. This can be seen as a grave shortcoming of the act.

To ground a conviction for Burglary the following must be established:

1. breaking and entering/break out of

2. dwelling house
3. intent to commit any felony or
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4. committed any felony therein
5. Must have occurred in the night - "night" is defined in the act as the
interval between seven o'clock in the evening and six o'clock in the morning of the
next succeeding day;

Where therefore a person breaks and enters/breaks out of house before 7 pm and
after 6 am, such person could not be found liable for burglary. Note however the
provisions of Section 40 of the Larceny Act which speaks to the offence of
Housebreaking.

ACTUS REUS OF BURGLARY

The defendant must have broken and entered a dwelling house in order to be guilty of
burglary OR broken out of a dwelling house. These provisions are clear. Where a
person has therefore walked through an open door of a commercial building and stolen
items at 5 o’ clock in the afternoon, notwithstanding how much he steals, he cannot be
found guilty of burglary as he did not “break” and “enter” “a dwelling house” “at night
time.”

Note: Whether there has been an entry is a question of fact for the jury. What must be
proven is that there was “effective entry.”

Case on point: R v Brown [1985] Crim LR 212

A witness, having heard the sound of breaking glass, saw the defendant partially inside a
shop front display. The top half of his body was inside the shop window.

The witness assumed that his feet were on the ground outside, although his view was
obscured. The defendant was convicted of burglary.

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He appealed on the ground that he had not "entered" the building, since his body was not
entirely within it.

The Court of Appeal held, dismissing the appeal, that the word "enter" did not
require that the whole of the defendant's body be within a building. All that was
required was that the entry was “substantial and effective.” There had clearly been
an entry in the present case.

R v Ryan [1996] Crim LR 320.

The victim, an elderly householder, found the defendant stuck in a downstairs window of
V's house at about 2.30am. The defendant's head and right arm were inside the window
which had fallen on his neck and trapped him. The rest of his body was outside the
window. He was convicted of burglary and appealed on the grounds that there was no
entry because he could not have stolen anything from within the building on account of
being stuck.

The Court of Appeal dismissed the appeal. R v Brown (1985) made it clear that the
defendant could enter even if only part of his body was within the premises. The
defendant's inability to steal anything because he was trapped was totally irrelevant.

MENS REA

The Defendant must be proven to have intended to commit a felony. Where a felony has
in fact been committed, there is no requirement for this mens rea. See section 39 (2).

MALICIOUS INJURY TO PROPERTY

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INTRODUCTION

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In Jamaica, the offences touching and concerning damage to property are primarily
contained in the Malicious Injuries to Property Act. The various offences contained in
that piece of legislation are dealt with under the following headings:

 Injury by Fire of Building and Goods therein (Sections 2-9);

 Injury by Explosive Substances to Building and Goods therein (Sections 10-11);

 Injury to Buildings by Rioters (Sections 12-13)

 Injuries to Buildings by Tenants (Sections 14);

 Injuries to Manufactures, Machinery etc(Sections 15-16);

 Injuries to corn trees, vegetable products etc (Sections 17-24);

 Injuries to fences, bridges, viaducts, tramway carriages, telegraphs etc (Sections

25-29);

 Injuries to cattle and other animals (Sections 30-31);

 Destruction/Damage to ships (Sections 33-40);

Students are required to have regard to the statutory provisions as noted above.

ACTUS REUS

Both at common law and at statute the requirement is that, at the very least, the offender
must have:

(1) Destroyed or

(2) Damaged

(3) Property belonging to another (even if offender has possession)

(4) Without lawful excuse in doing so

DESTROYS OR DAMAGES

While the term “destroy” does not pose much difficulty by way of definition, there is no
real definition of the term “damage”.

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In the case of SAMUELS v. STUBBS [1972] SASRS 200, Walters J attempted to
formulate a definition. He said:

“It seems to me it is difficult to lay down any very general … precise and absolute
definition as to what constitutes ‘damage’. One must be guided to a great degree by the
circumstances of each case, the nature of the article and the mode in which it is affected
or treated…It is my view, however that the word…is sufficiently wide in its meaning to
embrace injury, mischief or harm done to property, and that In order to constitute
damage it is unnecessary to establish such definite or actual damage to as renders the
property useless, or prevents it from serving its normal function…” (Emphasis added)

He then held that a temporary functional derangement of a policeman’s cap resulting

from it being trampled upon constituted damage though there was no evidence that the
Cap might not have been restored to its original shape at no cost and without any real
trouble to the owner.

Note therefore that in determining whether an article has been damaged, reference must
be made to the nature of the article.

The case of RE A (JUVENILE) v. R [1978] Crim LR 689 is instructive on this point. In

this case, the Defendant spat on a policeman’s rain coat. While Streeter J acknowledged
that spitting on a garment could cause damage he felt that it was necessary to “consider
the specific garment which has been allegedly damaged”.

The learned judge compared this alleged damage to damage to a wedding dress for
example and argued that damage to the former would be material on the facts but not so
much in respect of the latter as the service raincoat was in fact designed to resist the
elements, including spit.

Note the case of FISHER (1865) LR CCR 7 where the Courts ruled that tampering with a
machine so that it can no longer work will constitute damage or destruction at common
law.

A machine may be damaged by removing an integral part (Case of Tacey (1821) Russ &
Ry 452)

The authorities suggest that damage can be temporary or permanent but must
involve physical harm or impairment of the value or utility of the property. (RE A
(JUVENILE) v. R [1978] Crim LR 689, above – the court suggested that where the
value or utility of the coat was not affected there was no damage.

ACT OR OMISSION

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As with any other criminal act, the damage or destruction must generally arise from the
Defendant’s freely willed and voluntary act although a Defendant may be liable for
damage to property arising from his failure to act where he/she has created a dangerous
situation. Note the case of R v. MILLER [1983] 2 WLR 539 which we would have
covered in the first semester.

PROPERTY BELONGING TO ANOTHER

This refers to property of a tangible nature, whether real or personal

WITHOUT LAWFUL EXCUSE

At common law where a person destroys property belonging to another, in the genuine
though mistaken belief that the property was his or that he had a legal right/ claim of right
to do the damage, he was afforded a defence under law.

Note the case of Reg v Twose (1879) 14 Cox C.C. 327. In that case the prisoner was
indicted for setting fire to furze on a common. Persons living near the common had
occasionally burned the furze in order to improve the growth of grass but without the
right to do so. The prisoner denied setting fire to the furze and it was submitted that even
if it were proved that she did she could not be found guilty if she bona fide believed she
had a right to do so whether the right were a good one or not. Lopes J. ruled that if she set
fire to the furze thinking she had a right to do so that would not be a criminal offence.

N.B. also case of R v. SMITH [1974] QB 35 which fell under the Criminal Damage Act
but made reference to the “previous law” i.e. law similar to the Malicious Injury to
Property Act, in its judgment.

In that case the appellant became the tenant of a ground-floor flat at 209, Freemasons’
Road, E.16. The letting included a conservatory. In the conservatory the appellant and his
brother, who lived with him, installed some electric wiring for use with stereo equipment.
Also, with the landlord’s permission, they put up roofing material and asbestos wall
panels and laid floor boards. There is no dispute that the roofing, wall panels and floor
boards became part of the house and, in law, the property of the landlord.

Then in 1972 the appellant gave notice to quit and asked the landlord to allow the
appellant’s brother to remain as tenant of the flat. On September 18, 1972, the landlord
informed the appellant that his brother could not remain. On the next day the appellant
damaged the roofing, wall panels and floorboards he had installed in order - according to
the appellant and his brother - to gain access to and remove the wiring. The extent of the
damage was £130. When interviewed by the police, the appellant said: ‘Look, how can I

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be done for smashing my own property. I put the flooring and that in, so if I want to pull
it down it’s a matter for me.’

The appellant’s defence was that he honestly believed that the damage he did was to his
own property, that he believed that he was entitled to damage his own property and
therefore he had a lawful excuse for his actions causing the damage.

In the judgment of the court, it was noted that under the “previous law” it is clear
that no offence was committed by a person who destroyed or damaged property
belonging to another in the honest but mistaken belief that the property was his own
or that he had a legal right to do the damage. The court then referred to the case of
Reg v Twose aforesaid and held that It was held no offence is committed under this
section if a person destroys or causes damage to property belonging to another if he
does so in the honest though mistaken belief that the property is his own, and provided
that the belief is honestly held it is irrelevant to consider whether or not it is a
justifiable belief.”(Emphasis added)

MENS REA

The statutory provisions suggest that the act which causes damage must be unlawfully
and maliciously done.

The meaning of “maliciously” in the equivalent context under the English Malicious
Damage Act 1861 was addressed by Professor Kenny in the first edition of his book
Outlines of Criminal Law, published in 1902, in terms which were adopted by Lord
Bingham of Cornhill in the House of Lords in R v G [2003] UKHL 50, [2004] 1 AC
1034, 1044, para 9:

“ … in any statutory definition of a crime, ‘malice’ must, as we have already seen, be

taken – not in its vague common law sense as ‘wickedness’ in general, but – as requiring
an actual intention to do the particular kind of harm that in fact was done … For it is
essential to arson that the incendiary either should have intended the building to take
fire, or, at least, should have recognised the probability of its taking fire and have been
reckless as to whether or not it did so.”

The above makes it very clear that the term “maliciously” include both intention and
recklessness.

TRANSFERRED MALICE

Please be reminded that intention to damage one property may be transferred to any other
property damaged. (See R v. PEMBLITON (1874) LR 2 CCR 119)

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