Extra Money Article 08 JAN 2024

Is Keeping Mistakenly Handed Extra Money Stealing? 

In NSW, stealing and similar offences are governed by Part 4 of the Crimes Act 1900 (NSW). The concept of stealing, otherwise known as larceny, refers to the dishonest taking of something that belongs to someone else, without intending to return it.  

Section 117 of the Crimes Act 1900 (NSW) states that ‘Whosoever commits larceny, or any indictable offence by this Act made punishable like larceny, shall, except in the cases hereinafter otherwise provided for, be liable to imprisonment for five years.’

In the case of Ilich v The Queen (1987) 162 CLR 110 (‘Ilich’), the key elements to establish larceny were established. Regarding the physical elements of larceny, known as the ‘actus reus’, it was found that the Prosecution must prove beyond reasonable doubt the following elements:

  1. The property was capable of being stolen; 
  2. There must be a taking and carrying away of property, otherwise known as asportation;
  3. The property had to be taken away from the victim’s possession; and 
  4. The victim must not have consented. 

With respect to the mental element for larceny, known as the ‘mens rea’, it must be proven beyond reasonable doubt that the accused:

  1. Had the intention of permanently depriving the owner;
  2. Without a claim of right; and
  3. The taking was fraudulent and/or dishonest.

As such, if you have been handed extra money by mistake, and only realise this afterwards, would you be guilty of larceny for keeping it? In this circumstance, the following elements are established:

  • The money was capable of being stolen;
  • The money was taken away from the owner;
  • There was an intention to permanently deprive the owner;
  • No claim of right could be said to have existed.

However, the money was taken with the consent of the owner, albeit a mistaken consent. This factual scenario was considered in the case of R v Potisk (1973) 6 SASR 389 (‘Potisk’).

In Potisk, the accused took traveller’s cheques worth $1480 USD to a bank to exchange them for AUD. The teller should have paid him $1233 AUD, but applied the wrong rate and paid him $2985 AUD. When subsequently interviewed by police, the accused said he did not realise that a mistake had been made until he counted the money at home. Although, once he realised the mistake, he decided to keep the extra money.

In relation to the physical element of asportation, the Court held that there must be some physical movement, and that mere intent will not be sufficient. Specifically, Justice Talfourd stated, “… a mere movement of the mind cannot amount in law to a taking…” Chief Justice Bray stated, “… the mere formation of a mental resolve to appropriate the thing, not manifested in any overt act, could not change an original innocent possession into a larcenous one.” As such, the accused was acquitted of larceny, as his possession was originally an innocent one and there did not exist at the time of the taking a dishonest intent to permanently deprive the owner of the money. This principle is known as the ‘temporal coincidence rule’, which requires that the physical taking of the goods, and the psychological intent to do so fraudulently and permanently, must coincide.

However, it is important to note that the Court in R v Riley (1853) 169 ER 674, determined that the temporal coincidence rule does not apply in cases where there is no consent from the owner.

What about other mistakes vitiating consent?

In Ilich, it was found that if the accused obtains property due to a mistake and is (a) aware of the mistake at the time, or (b) subsequently becomes aware of the mistake and converts the property to their own use, it will only be larceny if the mistake as to the passing of property is ‘so fundamental’ as to prevent ownership from passing. In this case, the Court identified three types of fundamental mistakes which could vitiate consent, including:

  1. Mistake as to identity of the person to whom the property is given.
  2. Mistake as to the identity of that which is handed over.
  3. Mistake as to quantity of the thing delivered, except in circumstances involving the transfer of money. Lord Mansfield in Miler v Race (1758) 1 Burrow 452 held that money cannot be included because it is presumed that the person transferring money intended both legal ownership and possession to pass.

Current Law

Interestingly, it may be argued that today, Potisk could be found guilty of fraudulent appropriation pursuant to section 124(a) of the Crimes Act 1900 (NSW), which states:

Where, upon the trial of a person for larceny, it appears—

  • that the person had fraudulently appropriated to his or her own use or that of another, the property in respect of which the person is indicted, although the person had not originally taken the property with any fraudulent intent…

the jury may return a verdict accordingly, and thereupon the person shall be liable to imprisonment for two years, or to a fine of 20 penalty units, or both.

The intersection between the common law and statutory provisions like the above is highly complex and an interesting application of legal principles. Should you find yourself charged with a stealing offence, don’t hesitate to contact our experienced team at Jackson John Defence Lawyers. We will help you navigate this complicated area of law and ensure you receive the best result.