Criminal Law: Liability of Matilda and Sam

This article discusses the criminal liability of Matilda towards Daisy and Sam towards Matilda under basic larceny, robbery, and assault. It explains the essential elements and rules of these offences under the Crimes Act 1900 (NSW). Matilda has committed basic larceny and larceny by trick against Daisy, while Sam can be charged with robbery and assault against Matilda. The article provides relevant case laws and sections of the Act to support the arguments.

Running head: CRIMINAL LAW
Criminal Law
Name of the Student
Name of the University
Author Note

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Table of Contents
Criminal Liability of Matilda towards Daisy...................................................................................2
Issue.............................................................................................................................................2
Rules............................................................................................................................................2
Application..................................................................................................................................3
Conclusion.......................................................................................................................................4
Criminal Liability of Sam towards Matilda.....................................................................................5
Issue.............................................................................................................................................5
Rules............................................................................................................................................5
Application..................................................................................................................................6
Conclusion...................................................................................................................................8
Footnotes..........................................................................................................................................9
Bibliography..................................................................................................................................11

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Criminal Liability of Matilda towards Daisy
Issue
Whether Matilda has criminally liability against Daisy
Rules
Basic larceny
It is defined under the Crimes Act 1900 (NSW)1. Any person, who takes and carries away
anything without the consent of the owner of such thing, amounts to larceny. Such person must
carry or take such thing away fraudulently and without any rights made in good faith, which is
capable of being stolen with intent and permanently deprives the owner from such thing at the
time of taking or carrying away such thing.
The term larceny can be defining in various ways, which includes the larceny by mistake,
larceny by finding, larceny by a trick. Larceny by trick is defined as the possession of any
property without the authorization of the owner and obtaining possession of the property with the
false statement of the victim as was observed in Ward (1938)2
The essential elements of larceny include the following:
Actus Reus (physical elements)
 Under the subsection (a) the Actus Reus is defined where the property capable of being
stolen which is defined in the case of R vs. Daley (1879)3. When the property belongs to
1 Crimes Act 1900 (NSW)
2 Ward (1938) 38 SR (NSW) 308
3 R vs. Daley (1879) 12 SCR (NSW) 151

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another and it was taken away without consent, then it will be punishable under larceny
as was held in the cases of Kelly (1999)4 and Croton (1967)5
 Appropriation refers to a physical act involving a element of adverse interference with
the rights of the owner. The usurpation of rights of the owner without consent is another
important element under larceny, which has been defined in the cases of Kolosque vs.
Miyazaki (1995)6 and Wallis vs. Lane [1964]7.
Mens Rea (Mental Elements)
 It refers to the guilty mind of a person to be involved in a criminal offence. In Foster
(1967)8 and Minigall vs. McCammon [1970] the accused had the intention to deprive
the owner permanently.
 The dishonestly or fraudulence element mentioned under section 4B of Crimes Act which
includes the honest belief or claim of rights has been found in Peters (1998)9 and
Lopatta (1983)10.
Application
On the facts here, it can be stated that Matilda has failed to provide appropriate service to
Daisy. She assured her to provide her perfect match as per her requirement. However, she
concealed the present situation of her business and about the ongoing investigation being
conducted under the NSW Fair Trading. As per the given scenario, Matilda has committed fraud
4 Kelly (1999) QB 621; [1998] 3 ALL ER 741 Para 50
5 Croton (1967) 117 CLR 326 (at p329)
6 Kolosque vs. Miyazaki (1995) NSWSC
7 Wallis vs. Lane [1964] VR 293
8 Foster (1967) 118 CLR 117 (at p119)
9 Peters (1998) 192 CLR 493; 151 ALR 51 at 317
10Lopatta (1983) 35 SASR 101 at 107

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against Daisy, which amounts to the offence of basic larceny under section 4B, 94AA of the
Crimes Act 190011.
According to Actus Rea, which defines property that is out of the owner’s possession as
for being stolen previously under subsection 1(a) of Crimes Act 190012 and the term ‘property
‘refers to money as well. Here, actus rea has been committed, as Matilda has taken money from
Daisy assuring her to find her perfect match. Matilda was aware of her business situation and the
requirements of Daisy but dishonestly claimed $10 grand from Daisy, thus, establishing guilty
mind under subsection (b) of the Act, defining mens rea13.
Section 4B of the Act has defined the dishonesty or fraudulency where the defendant is
aware of the dishonesty that he/she is committing. In this case, Matilda has fraudulently entered
into the contract with Daisy where she was not able to provide the actual service and despite
being aware of the present business condition, she dishonestly obtained the money from Daisy.
The above facts establish the commission of basic larceny that is an offence under
criminal law. Section 117 of Crimes Act 1900 stipulates that person alleged to have committed
commission of larceny is entitled to be punished in NSW14.
Further, Matilda has committed the offence of larceny by trick against Daisy. She first
failed to provide the appropriate service to her and later refuse to refund the amount. Matilda
tricked Daisy by assuring her to provide a perfect match. The Crimes Act section 192 D has
defined the dishonesty of fraudulence is established when there arises financial disadvantage. In
11 Crimes Act 1900 at section (4B), (94AA).
12 Crimes Act 1900 at subsection (1A).
13 Crimes Act 1900 at subsection (b).
14 Crimes Act 1900 at section (117).

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this part the section, 117 of the Crimes Act 1900 defined the punishment for larceny. She has
committed the larceny of section 117 of the Crimes Act 190015.
Therefore as per the case study, Matilda has committed the offences, which includes the
basic larceny where the Actus reus occurred. Matilda had obtained the consent of Daisy
deceptively or fraudulently. The Mens rea occurred when Matilda has claimed the amount from
Daisy with the intention to deceive her, failed to provide actual service, and committed offence
of Means rea. Under such circumstances, 117 of the Crimes Act 1900 defined the punishment for
larceny16. Persons who are alleged to have committed the offence of larceny are entitled to be
imprisoned for 5 years.
Conclusion
Matilda is criminally liable for committing basic larceny and larceny by trick against Daisy.
Criminal Liability of Sam towards Matilda
Issue
Whether there Sam is criminally liable against Matilda
Rules
Basic larceny
As defined under the Crimes Act 1900 (NSW) when any person takes and carries away
anything without the consent of the owner of such thing, amounts to larceny. Such person has
15 Crimes Act 1900 at Section (117).
16 Crimes Act 1900 at Section (117).

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fraudulently and without any rights made in good faith, permanently deprives the owner from
such thing, which is capable of being stolen with intent; it amounts to commission of larceny.
The essential elements that must be present to establish larceny are enumerated as below:
Robbery
Section 94 of the Crimes Act stipulates the offence of robbery and includes the offence of
assault with the intent to rob and steal from any person17. The essential elements of robbery have
been observed in Smith v Desmond [1965]18. It includes the following essential elements:
 Assaults with intention to rob;
 Robbing;
 Stealing money/property from another person;
 Some level of threat to put a person in fear;
 Taking from such person;
It includes elements of larceny (stealing) and assault (to cause unlawful physical contact or
apprehension of immediate unlawful physical contact as observed in Gnosil [1824]19.
Assault
According to section 61 of the Crimes Act, the commission of assault is considered as an
offence and the accused is entitled to be imprisoned for 2 years. The elements of assault as
described in Fagan v Commissioner of Metropolitan Police [1969]20 are enumerated as below:
Actus rea
17 Crimes Act 1900 at section (94)
18 Smith v Desmond [1965] AC 960 at [958-987], [997-998]
19 Gnosil [1824] 171 ER 1206 at [P304]
20 Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439 at [444].

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 Application or threatened application of force- in Zanker v Vatzokas [1988] 34 A Crim
R 11 it was held that the application of force against any other person or causing an
apprehension of application of force by the accused shall amount to actus rea in assault; Conditional threats- if the conditional threat is unlawful in nature and the self-defense or
respond to the threat is disproportionate to the original threat it shall amount to assault as
was observed in Rosa v Samuel [1969]21; State of mind of victim- In Ryan vs. Kuhl [1979]22 it was held that the victim must have
apprehended an immediate fear of physical injury to establish assault. Absence of consent- if there is absence of consent to any physical violence, it is
considered unlawful but any physical violence with consent is not unlawful asw as
observed in Pallante v Stadiums (no 1) [1976]23.
Mens rea
It refers to the guilty mind of a person to be involved in a criminal offence. The elements
of mens rea in the offence of assault are recklessness or intention. The intention to cause
unlawful physical violence or cause another person to apprehend immediate unlawful physical
violence as was held in Smith [1961] AC 29024.
Assault Causing Death
According to section 25A and 25B of the Act, any act causing unlawful violence
resulting in death of the other person amounts to assault causing death. In the cases of Perciali
21 Rosa v Samuel [1969] 00 CR 684
22 Ryan vs Kuhl [1979] VR 315 at [39]
23 Pallante v Stadiums (no 1) [1976] VR 331 at [46]
24 Smith [1961] AC 290 at [334]

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[1986]25, Williams (1990)26, D [1984]27 and Venna [1976]28, the mens rea has committed by the
defendant towards the plaintiff.
Application
On the facts here, Sam has deprived Matilda from her ring without her consent and this act
may amount to the commission of larceny. In Knight (1988)29, Collins vs Wilcock [1984]30,
Barton vs. Amstrong [1969]31 criminal liability of Actus reus has been established by courts
due to the fulfillment of the essential elements necessary to establish commission of the offence
of assault.
Further, Sam can be charged with the offence of robbery, as the elements to establish robbery
are present in the conduct of Sam. As was observed in Smith v Desmond [1965]32, Sam
threatened Matilda that if she gives the ring only then he will excuse her from refunding the
money to Daisy. He caused Matilda to apprehend immediate physical injury when he said he and
his gang would cause her physical injury. There was some level of threat or fear caused to
Matilda resulting, which she gave her ring and Sam took the same. Thus, the conduct fulfills the
requirements of robbery under section 94 of the Act33.
Furthermore, Sam can be charged with assault as his conduct fulfills the requirements
necessary to establish assault. Firstly, Sam caused Matilda an apprehension to cause immediate
physical injury when he threatened that his gang would cause her physical injury if she did not
25 Perciali [1986] 42 SASR 46 at [46-47]
26 Williams (1990) 50 A Crim R 213 at [220-222]
27 D [1984] 3 NSWLR 29 Para [88]
28 Venna [1976] QB 421 at [428-429]
29 Knight (1988) 35A Crim R 11
30 Collins vs Wilcock [1984] 3 All ER 374 at 26
31 Barton vs. Amstrong [1969] 2NSWLR 451 at p 455
32 Smith v Desmond [1965]AC 960 at [985-987], [997-998]
33 Crimes Act 1900 at section (94).

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refund the money to Daisy. Secondly, the conditional threat that if Matilda gave her ring, she
will not have to refund the money was unlawful and that she gave the ring, without her consent
to such conditional threat. In Rosa v Samuels [1969]34, Police v Greaves [1964]35 and
Tuberville vs. Savage (1669)36, the court established that conditional threats are unlawful if the
responses to such threats are not proportionate to the original threat.
Thirdly, Matilda had an apprehension of sustaining immediate physical injury and that
suffered post-traumatic stress disorder, treating herself from a psychiatrist.
Moreover, Sam’s conduct towards Matilda establishes mens rea as well. This is established
from the fact when he was reckless while threatening Matilda causing her to apprehend
immediate physical injury. Such recklessness was intentional when he deliberately put Matilda to
fear for her life and refund the money to Daisy.
When a person commits the offence of assault he is entitled to be punished with
imprisonment for 2 years unless such assault results in grievous body injury, in case of which the
penalty imposed on such accused shall be become severe as stipulated under section 61 of the
Crimes Act 190037. As per the facts of the case, the offence of assault is established when there is
an immediate and unlawful physical injury or violence or the causation of an apprehension of
immediate physical injury against another person. It includes threatening and fear caused by one
person to another where the response to such threat is disproportionate to the original threat.
Although there is no actual, physical contact but there is an apprehension to inflict immediate
34 Rosa v Samuels [1969] SASR 205
35 Police vs Greaves [1964] NZLR 295 at para [42]
36 Tuberville vs Savage (1669) 86 ER at [684]
37 Crimes Act 1900 at section (61).

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injury upon the other person that is taken into consideration while determining commission of
assault.
On the facts here, the conduct exhibited by Sam establishes that he has deprived Matilda
of her ring permanently by threatening her. This establishes the presence of actus rea and mens
rea in his conduct towards Matilda as well. Sam threatened Matilda causing her to apprehend
immediate injury and she was subjected to unconditional threat to which she gave her ring
without her consent. This establishes that her response or self-defense against such unconditional
threat was disproportionate to the original threat. The threatening of being inflicted with physical
injury if police was involved resulted in post-traumatic stress disorder in Matilda for which she is
being subjected to psychiatric treatment.
Conclusion
Sam is entitled to be criminally liable for committing larceny, assault and robbery as per
the facts of the case. However, under the given circumstances, he is primarily entitled to be
criminally liable for committing robbery against Matilda.

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Footnotes
Barton vs Amstrong [1969] 2NSWLR 451
Buttle (1959) 60 SR (NSW) 320
Croton (1967) 117 CLR 326
Foster (1967) 118 CLR 117
Kelly (1999) QB 621; [1998] 3 ALL ER 741
Knight (1988) 35A Crim 11
Kolosque vs. Miyazaki (1995) NSWSC
Lopatta (1983) 35 SASR 101
McPherson vs. Brown (1975) 12 SASR 174
Minigall vs. McCammon [1970] SASR 82
Perciali [1986] 42 SASR 46
Peters (1998) 192 CLR 493; 151 ALR 51
Police vs Greaves [1964] NZLR 295
R vs. Daley (1879) 12 SCR (NSW) 151
Riley (1853) 169 ER 674
Rosa vs Samuels [1969] SASR 205

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Ryan vs Kuhl [1979]
Shields & Ors v New South Wales Crime Commission [2007] NSWCA 309
Tuberville vs Savage (1669) 86 ER 684
Wallis vs. Lane [1964] VR 293
Ward (1938) 38 SR (NSW) 308
Williams (1990) 50 A Crim 213

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Bibliography
Barton vs Amstrong [1969] 2NSWLR
Buttle (1959) 60 SR (NSW)
Croton (1967) 117 CLR
Foster (1967) 118 CLR
Kelly (1999) QB 621
Knight (1988) 35A Crim 11
Kolosque vs. Miyazaki (1995) NSWSC
Lopatta (1983) 35 SASR
McPherson vs. Brown (1975) 12 SASR 174
Minigall vs. McCammon [1970]
Perciali [1986] 42 SASR
Peters (1998) 192 CLR
Police vs Greaves [1964] NZLR
R vs. Daley (1879) 12 SCR (NSW)
Riley (1853) 169 ER
Rosa vs Samuels [1969] SASR

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Ryan vs Kuhl [1979]
Shields & Ors v New South Wales Crime Commission [2007] NSWCA
Tuberville vs Savage (1669) 86 ER
Wallis vs. Lane [1964] VR
Ward (1938) 38 SR (NSW)
Williams (1990) 50 A Crim