红字= conduct 关键字
绿字=Fault 关键字
蓝字=case
在南澳州，如果室友用了我的卫生纸，衣架，肥皂，洗衣粉，这算是偷窃么 ？
偷窃罪在南澳州是 S134 of Criminal law consolidation Act 1935 定义的
134—Theft (and receiving)
(1) A person is guilty of theft if the person deals with the property—
(a) dishonestly; and
(b) without the owner’s consent; and
(c) intending—
(i) to deprive the owner permanently of the property; or
(ii) to make a serious encroachment on the owner’s proprietary rights.
Maximum penalty:
(a) for a basic offence—imprisonment for 10 years;
(b) for an aggravated offence—imprisonment for 15 years.
(2) A person intends to make a serious encroachment on an owner’s proprietary rights if the person intends—
(a) to treat the property as his or her own to dispose of regardless of the owner’s rights;
“Dispose of’, in my view, is not limited to the concept of ‘getting rid of’ in the narrow sense. However, an intention merely to use an item of property as one’s own to dispose of, without more, is not sufficient to found criminal liability. It must be an act that is done ‘regardless of the owner’s rights’. Thus, if an accused is dealing with the property as if it is his own, in the sense that he is doing what he wants to with it, controlling it or managing it, and he is doing so regardless of the owner’s rights, this element would be proved.” Lovell DCJ said in R v Wilson
(b) to deal with the property in a way that creates a substantial risk (of which the person is aware)—
(i) that the owner will not get it back; or
(ii) that, when the owner gets it back, its value will be substantially impaired.
(3) It is possible to commit theft as follows:
(a) a person may commit theft of property that has come lawfully into his or her possession;
(b) a person may commit theft of property by the misuse of powers that are vested in the person as agent or trustee or in some other capacity that allows the person to deal with the property.
Example—
Suppose that land is vested in a trustee in a fiduciary capacity. She is empowered under the instrument of trust to mortgage the land for the purposes of the trust. The trustee dishonestly mortgages the land as security for a personal liability that is unrelated to the trust. In this case, the trustee commits theft of the interest created by the mortgage.
(4) If a person honestly believes that he or she has acquired a good title to property, but it later appears that the title is defective because of a defect in the title of the transferor or for some other reason, the later retention of the property, or any later dealing with the property, by the person cannot amount to theft.
(5) Theft committed by receiving stolen property from another amounts to the offence of receiving but may be described either as theft or receiving in an instrument of charge and is, in any event, punishable as a species of theft.
(6) If a person is charged with receiving, the court may, if satisfied beyond reasonable doubt that the defendant is guilty of theft but not that the theft was committed by receiving stolen property from another, find the defendant guilty of theft.
首先分析一下室友这种行为 (conduct)
S130 of Criminal law consolidation Act 1935 定义了犯罪活动实施的对象，什么叫做 property
Property means real or personal property and includes-
a) Money b) intangible property ( including things in action) c)electricity d) a wild creature that is tamed or ordinary kept in captivity or is reduced into someone’s procession.
卫生纸，衣架，肥皂，洗衣粉这些都属于S130 定义的personal property.
同样s130 也定义了犯罪的行为
deal—a person deals with property if the person—
(a) takes, obtains or receives the property; or
(b) retains the property; or
(c) converts or disposes of the property; or
(d) deals with the property in any other way;
室友takes（拿走）你东西的举动就是一种犯罪行为。
S131 规定犯罪的行为必须是不诚实的。
这个不诚实必须和错误的行为区分开来。
如果室友搬进来就认为这些东西是房东提供的，所以他用了，这种情况下，室友没有不诚实的行为，所以他拿走这些东西的行为就构不成犯罪。 如果他知道是你的东西，但是他辩称 他认为室友就是可以一起share 东西的。一般法庭也可以接受他不是犯罪。所以你必须和他明确说了，这些是你的私人物品，不接受share, 他要用就自己去买。这样他再拿你的东西，就是不诚实了。但是如果你和他的东西放在一起，他用了你的，他还可以辩称 不好意思拿错了。除非你可以连续的提供证据，证明他是故意的，比如他每次都拿错，（这个难度是不小的）那么也不能证明他不诚实。所以你需要把你的物品和他的东西严格的分开放。比如洗衣粉，必须在两个完全分开的抽屉里。必须和他的洗衣粉做完全不同的包装。如果你曾经和他说过，这些是可以用的，或者你用过他的东西，他辩称你这种行为就是一种默许“implied consent”， 符合132 （1）（b）的规定。那么他也不可以被认为有罪。
132—Consent of owner
(1) A reference to the consent of the owner of property extends to—
(a) the implied consent of the owner (or owners); or
(b) the actual or implied consent of a person who has actual or implied authority to consent on behalf of the owner (or owners).
(2) A person is taken to have the implied consent of another if the person honestly believes, from the words or conduct of the other, that he or she has the other’s consent.
(3) However, a person who knows that another’s consent was obtained by dishonest deception is taken to act without consent.
131—Dishonesty
(1) A person’s conduct is dishonest if the person acts dishonestly according to the standards of ordinary people and knows that he or she is so acting.
(2) The question whether a defendant’s conduct was dishonest according to the standards of ordinary people is a question of fact to be decided according to the jury’s own knowledge and experience and not on the basis of evidence of those standards.
(3) A defendant’s willingness to pay for property involved in an alleged offence of dishonesty does not necessarily preclude a finding of dishonesty.
(4) A person does not act dishonestly if the person—
(a) finds property; and
(b) keeps or otherwise deals with it in the belief that the identity or whereabouts of the owner cannot be discovered by taking reasonable steps; and
(c) is not under a legal or equitable obligation with which the retention of the property is inconsistent.
(5) The conduct of a person who acts in a particular way is not dishonest if the person honestly but mistakenly believes that he or she has a legal or equitable right to act in that way.
Example—
A takes an umbrella violently from B honestly but mistakenly believing that B has stolen A’s umbrella and that A is entitled to use force to get it back. In fact, it belongs to B. A is charged with robbery. A cannot be properly convicted on this charge because of his honest but mistaken belief (however unreasonable). However, he may still be guilty of an assault.
(6) A person who asserts a legal or equitable right to property that he or she honestly believes to exist does not, by so doing, deal dishonestly with the property.
Example—
A takes an umbrella violently from B honestly believing that the umbrella belongs to A and that A is entitled to possession of the umbrella (but knowing that she is not entitled to use force to get it back). The assertion of that possessory right (whether or not correctly founded in law) is not dishonest (and therefore cannot amount to theft) although the means used to get the umbrella back may well amount to some other offence.
然后分析一下室友的犯罪动机 Fault。
- 根据 s131(1) 他必须清楚他的行为是“不诚实的” knew that what he was doing was wrong “。比如说 把书店里书都看完了，然后放回书架上，就是一种不诚实的行为。 Police v W(2006) 160 A Crim R 278 (27)
“The reading of an entire book in a bookshop before returning it intact to the shelves may be one example. A mischievous switching of labels before returning both products to the shelves without the purpose to which s 143 refers may be another. In the present case a finding that the appellant knew that what he was doing was wrong was not equivalent to proof that he intended to make a serious encroachment on K-Mart’s proprietary rights in the defined sense.”
- 这种行为必须是serious encroachment. 这里就要考虑室友的行为。室友的行为是不是可以有其他目的的解释。如果有室友的行为可以解释为其他目的，那么也不可以定罪。必须能毫无疑问的证明，“beyond reasonable doubt” that the respondent’s intention was to deal with stuff in a way which created a substantial risk (of which he was aware) that when you recovered control of the stuff, their value would be substantially impaired. “Police v W(2006) 160 A Crim R 278 (27)
- Precisely what will be necessary in a particular case will depend upon not only the nature and duration of the intended use, but also the nature of the property. In the case of some items of property, a relatively minor and temporary use will suffice. On the other hand, there will be other items of property in respect of which more is required.MCGUINESS v POLICE [2016] SASC 133
卫生纸，肥皂，洗衣粉可能比较好证明这种serious encroachment，衣架可能比较难证明。 因为衣架并没有损坏。 如果他搬家的时候拿走了你的衣架，那么就可以满足CLCA 134（2）(a）Treat the property as his own to dispose of regardless of the owner’s rights.
- 如果室友拿你的洗衣粉是出于其他目的，比如他就是好奇，摸一下，又放回去了。没有造成实质性的损害 （serious encroachment）那么也不可以给他定罪。严重实质性的损害的例子包括偷车并抛弃 “I agree with his Honour’s view that an intention to abandon a motor vehicle will usually suffice to establish an intention to make a serious encroachment upon the owner’s proprietary rights for the purposes of s 134(1)(c)(ii).”MCGUINESS v POLICE
如果室友想拿我的东西，但是被我发现后停手了，能追究他的未遂(attempt) 责任么？
根据CLCA 270A 可以考虑
- (1) A person who attempts to commit and offence (statute or common law) shall be guilty of attempting to commit that offence.
- (3) Penalty:
–(i) attempted murder or treason – life or lesser term
–(ii) Other life sentences – 12 years
–(iii) all other offences are two thirds of the maximum
一般未遂罪的刑期是正常刑期的2/3
In the South Australian case of Collingridge (1976) 16 SASR 117 it was said that the following was “correct as an exposition directed to the facts” of that case:
“To constitute an attempt, what is done must go beyond mere preparation to commit the crime and must amount really to the beginning of the commission of the crime. The accused must actually have embarked upon the commission of the crime. Such a step towards the commission of the crime is an attempt … ”
室友必须在开始实施偷窃行为的时候 （at the beginning of the commission of the crime) 被抓住。那么具体怎么才算是 at the beginning of the commission of the crime 呢？ 有3个被普遍接受的测试。( Proximity test ) 室友的行为必须充分的接近完成盗窃的程度。 “The point reached was sufficiently proximate to enable it to be characterised as an attempt to commit a crime.” R v Susak 如果室友没有进入你的房间，一般来说不能给他定罪。 “The conclusion that the conduct was not sufficiently proximate by virtue of the accused not being in a physical position to carry out the offence is a defensible line to draw”
Of course it is for a jury to decide whether the facts proved amount to an attempt as charged. It is for me to decide whether there is any evidence capable of constituting an attempt.
- Last act test (R v eagleton) 室友的行为必须是犯罪活动他可以控制的最后一环。
“It is the last act ‘dependant upon himself’ before the commission of the completed offence that is required before a person can attempt to commit the completed offence.”
- unequivocally test (R v Barker) 必须这个行动自身能够充分展示其犯罪目的。（speaks for itself) 比如说拉开你的包的动作，就是准备盗窃的最后一环。
‘An act done with intent to commit a crime is not a criminal attempt unless it is of such a nature as to be itself sufficient evidence of the criminal intent with which it is done. A criminal attempt is an act which shows criminal intent on the fact of it. The case must be one in which res ipsa loquitur [the thing speaks for itself] applies … That [an accused’s] unfulfilled criminal purposes should be punishable, they must be manifested not by his [or her] words merely, or by acts which are themselves of innocent or ambiguous significance, but by overt acts which are sufficient in themselves to declare and proclaim the guilty purpose with which they are done.’ at 874–5
- substantial test (DPP v Stonehouse) 已经对犯罪做出了实质性的步骤。 “went a substantial distance towards the commission of that offence.
‘An act done with intent to commit a crime is not a criminal attempt unless it is of such a nature as to be itself sufficient evidence of the criminal intent with which it is done. A criminal attempt is an act which shows criminal intent on the fact of it. The case must be one in which res ipsa loquitur [the thing speaks for itself] applies … That [an accused’s] unfulfilled criminal purposes should be punishable, they must be manifested not by his [or her] words merely, or by acts which are themselves of innocent or ambiguous significance, but by overt acts which are sufficient in themselves to declare and proclaim the guilty purpose with which they are done.’ at 874–5
“So called if not interrupted test is not accepted.” R v Susak